MEDIUM NEUTRAL CITATION: [2003] VCAT 1667

1. In relation to application for review P00858/2002, the decision of the Responsible Authority in permit application no. 2002/7795 is affirmed. A permit is not granted and no permit is to issue.

2. Proceedings P00372/2002, P00717/2002, P001258/2002 and P001259/2002 are adjourned to a date to be fixed pending the determination of proceeding P001508/2003.

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

Use and develop the land for the purpose of a minor sports ground.

Public Use 2 Zone under the Bayside Planning Scheme.

Mr Andrew Sherman, solicitor of the firm of Russell Kennedy, solicitors, appeared for the Responsible Authority.

Mr Paul Connor, barrister, appeared on the instructions of his client for the Brighton Secondary College Council.

Mr Ken John appeared for the Sandringham Hockey Club Inc.

Ms Lynette Wilks appeared for Mrs A Wilks. Mrs Wilks was also in attendance.

1. This is an Application pursuant to Section 77 of the Planning and Environment Act 1987 ("PE Act") brought by the Brighton Secondary College ("the School") seeking review of a decision by the Bayside City Council ("the Council") to refuse to grant a permit in application no. 2002/7795. The Council issued a Notice of Refusal on 11 March 2003. An Application for Review was lodged on 8 April 2003.

2. At the commencement of the Hearing, the Tribunal adjourned four other proceedings. They are Nos. P372/2002, P717/2002, P1258/2002 and P1258/2003. Three are applications for enforcement orders against the Brighton Secondary College (two brought by the Bayside City Council and one by Mr J Thomson). The other is a request for an amendment of Permit 99/4617 brought by Brighton Secondary College pursuant to section 87 of the PE Act.

3. At the commencement of the Hearing, the Tribunal joined Ms E Markowski and Mrs A Wilks as parties on the basis of being granted an extension of time for the lodgement of their statements of grounds.

4. The subject site is located between Marriage Road and Dendy Street, East Brighton and is part of the land occupied by the Brighton Secondary College. The area that is the site for the minor sports ground was previously used as a football oval. It is now developed with a hockey pitch that is also line-marked for tennis courts. The sportsground is surrounded in part by a cyclone wire fence and acoustic mounding.

5. Paved and line-marked tennis and basketball courts are located immediately to the east of the hockey pitch. There are mature trees along part of the Dendy Street frontage. There is also landscaping in various forms to the east and west of the hockey pitch adjacent to site boundaries. Some planting is within or adjacent to an easement that extends along the west boundary of the School grounds.

6. Properties surrounding the School, and hockey pitch in particular, are primarily residential in use. They comprise a mix of one and two storey dwellings on Dendy Street, Marriage Road, Burwah Street, Sara Avenue and Beenak Avenue. A large section of the southern side of Dendy Street, opposite the site, is occupied by the Brighton Public Golf Course. Dwellings directly opposite the review site in Dendy Street include Nos. 256 (Mrs Wilks), 258 and 260 (Mr Thomson) Dendy Street.

7. Vehicle access to the School grounds is from Marriage Road. There are two access points, one to the east and one to the west of the school grounds. There is a third access to Marriage Road that was intended to be closed by conditions originally included in Permit 99/4617. In Application for Review No. 2000/45532 this was directed to be retained to allow temporary classrooms to be removed from the site. Those classrooms were moved to the School grounds following a major fire in 2000.

8. There is no vehicle access from Dendy Street into the School grounds, however, there is a pedestrian gate to the Dendy Street frontage that provides access to the ground and a viewing shelter/store. Dendy Street is 12.5 metres wide with two traffic lanes and a parking/ bicycle lane on both sides. Bus services operate along Dendy Street and a bus stop is located adjacent to the eastern end of the site. There are kerb extensions associated with a pedestrian crossing to the School.

9. In addition to School-based use of the land, we were advised that School facilities are used for activities such as a Greek school, dance classes and basketball. Those activities involve a recently constructed gymnasium/basketball centre and a performing arts facility both of which are located toward Marriage Road.

10. Much of the information presented in submissions by Messrs Sherman and Thomson sets out the background to the current circumstances of the review site.

11. We will not recite all of this material. Much of the detail is included in the their submissions as well as the submission presented by Mr Connor. In identifying relevant facts below, we have avoided referring to alleged breaches of Permit 99/4617 and all of the other proceedings relating to the school grounds that have been lodged by the Council, Mr Thomson and the School. We specifically note the following as background to the current proceeding before us:

a. Following a Council decision to determine to grant a permit, Application for Review No. 1999/72086 was lodged under Section 82 of the PEAct by a large number of local residents. The decision of the Responsible Authority was ultimately varied by the Tribunal, as set out in the Tribunal's order and reasons dated 21 December 1999. Permit 99/4617 issued subject to modified conditions.

b. Permit 99/4617 required car parking to be provided on-site, with access via Marriage Road. Thereafter patrons were to be directed to Dendy Street adjacent to the frontage of the site or the Brighton Golf Course. Plans endorsed by the Council on 21.12.99 showed car parking on an asphalt surface (46 spaces) to the south of the performing arts centre with the driveway re-located to a position off Marriage Road opposite Parker Street. At the time, that area was paved as basketball courts. Mr Sherman advised that the endorsed plans no longer showed 17 car spaces along driveways within the site that had been considered in evidence before the Tribunal.

c. The fire at the School in April 2000 caused substantial damage. Subsequently, the School sought an amendment to Permit 99/4617 on the basis of a change of circumstances arising from the fire while the Council sought an enforcement order alleging that works had not been carried out in accordance with Permit 99/4617 and its endorsed plans. The Tribunal issued an enforcement order in relation to Application for Review No. 2000/45532 and in Application for Review No. 2000/44126 directed the Council to amend Permit 99/4617. The Tribunal's order and reasons were given orally on 5 October 2003 and confirmed in writing published on 30 November 2000. The reasons set out the circumstances in detail.

d. Following the issue of the Tribunal's order, the Council failed to issue an amended permit, although three annotations dated 18.10.00 were made to the endorsed plans.

e. We were advised that on 18 October 2002 the School Council considered a masterplan for the School site. The masterplan document dated October 2000 shows a sports building proposed to be erected on the area proposed by the School for hockey car parking and approved by the Tribunal for car parking in Application for Review No. 2000/44126 (ie. the paved basketball courts). That the construction of a new gymnasium may be imminent was not raised with the Tribunal or, we understand, with the Council.

f. We were advised by Mr Thomson that in January 2001 a contract was let by the School for the construction of the new gymnasium/basketball centre.

g. In February 2001, CBG Architects (for the School) applied to the Council to relocate the car parking area. Using the western entry off Marriage Road, it was proposed that the car parking area be located to the east of the library on paved multi-purpose courts. Council approved this alternative parking area.

h. The School subsequently constructed its own "Federation Square" that limits vehicles using the car parking area if accessing it from the western entry off Marriage Road. A building has also been erected on part of the parking area, removing some 4-6 spaces of the designated 46 spaces, as was described in Mr Linke's evidence. Finally, a new building has most recently been erected to the rear of the performing arts centre and north of the new gymnasium also restricting vehicle access from the west.

i. As access from the westerly Marriage Road gate is no longer available, access to the centrally positioned car parking area is allowed from the eastern entry off Marriage Road. There are some signage and directional pavement markings. The access arrangement is circuitous, convoluted and poor (to say the least).

12. While the permit application addresses the whole of the hockey facility, the focus of attention is car parking arrangements associated with non-School use of the hockey facility.

13. The facility is a multi-purpose synthetic sports field, designed for hockey but with additional use primarily for tennis and soccer. In Application for Review No. 1999/072086, the Tribunal was advised that the facility may be used for other activities, such as general training, athletics and handball.

14. The facility is constructed a minimum of approximately 10 metres from the Dendy Street frontage of the site and 46 metres from both the east and west boundaries. It provides for one hockey or one soccer pitch or eight line-marked tennis courts. The sports field has an east-west orientation with dimensions of 100 metres x 65 metres. Eight light towers, of approximately 21 metres in height, surround the sports field.

15. During School hours (8.30am and 3.30pm), the facility is available for use by the Brighton Secondary College and by local primary schools. The minor sports ground is allowed to operate for non-school use at times prescribed in Permit 99/4617. The facility is currently used for hockey during winter and summer months, with operation until 9.30pm on Tuesday to Fridays. Weekend use also occurs. At other times, during summer on weekends, the facility is used for tennis or other activities.

16. The proposal seeks approval to utilise the paved open tennis, netball and basketball courts to the immediate east of the hockey field for car parking for 46 vehicles. All access is proposed via a new two way crossing and driveway off Dendy Street. No information has been provided in relation to changes to the paved areas. A new graded ramp is required to access the upper level court given level differences.

17. A landscaping plan forms part of the application material. It is the same plan as submitted to the Council in 2000. It has a hand-annotation in relation to the hard court area that is now proposed for parking (but the area referred to as proposed car park is wrongly identified). No additional landscaping is shown on the plan in response to the current permit application.

18. The review site is located in a Public Use 2 (Education) Zone. Pursuant to the provisions of Clause 36.01, a planning permit is required to use the land for the purpose of a minor sports ground. That is, a permit is required to use the hockey facility for non-school use. No Overlays apply to the land.

19. A number of other Clauses have been considered:

s State Planning Policy Framework - Clauses 14, 15, 16, 18 and 19.

s Local Planning Policy Framework - Clauses 21 (Municipal Strategic Statement).

s Particular provisions - Clause 52.06 (car parking).

s General provisions - Clause 65 (general decision guidelines).

21. We have considered the written and oral submissions presented, reviewed the relevant provisions of the Bayside Planning Scheme and inspected the site and surrounding area. We have also considered the evidence called on behalf of the Applicant from Mr S Linke (town planner), Mr G Tucker (traffic engineer) and Mr R Burton (acoustic engineer).

22. The principal issue before us relates to the relocation of on-site car parking associated with the non-School use of the hockey ground. While this is a new permit application for non-School use of the hockey ground, in effect, the only matters raised in statements of grounds and submissions prior to the hearing concerned the car parking arrangements.

23. In focussing on car parking, the key issues raised in submissions and evidence which we address in turn are:

s whether the proposed car park is acceptable in terms of potential off-site amenity impacts, notably noise and headlight glare.

s whether the proposed car park is acceptable in terms of impacts on traffic movement along Dendy Street and surrounding streets.

s the relationship of this proposal to the School's masterplan and the extent to which ongoing development of facilities is occurring in an ad hoc manner.

s whether the proponent is likely to comply with permit conditions.

24. It is also important to emphasise that the matter we must consider is whether the Application before us is acceptable in terms of the requirements of the policies and decision guidelines of the Bayside Planning Scheme. It is not our role to find the best or preferable location and it is not relevant that there may be better sites for a car park. In other words, pursuant to the provisions of Clause 31, we must determine:

whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65. [emphasis added]

25. What we have just said should not be confused with statements sometimes made that the Tribunal must seek the right or best decision on the application before it. That proposition is correct, but it relates to proposal actually under consideration. It does not relate to other possible (or impossible) sites or locations. That would be to consider other applications rather than the one in fact made.

26. It is also necessary to state at the outset that it appears to be common ground between the parties that the centrally located car parking spaces within the site are not well used, or hardly used at all, although we have somewhat limited evidence in that respect. The circuitous and tortuous route to that parking area has resulted from the construction of several new buildings that now prevent the previously approved and more convenient access. This is conducive of hockey centre patrons seeking car parking off-site. That was essentially conceded by Mr Linke.

27. From the information available to us, this situation appears to be entirely of the School's own making. By undertaking several building projects in the past two years, the School has blocked any convenient access to the designated and centrally located car spaces. It has even erected some buildings over part of the re-located car parking area endorsed by the Council. It is not our role in this proceeding to rebuke the School for its actions. However, it is apparent to us that those actions have lead to the current proceedings seeking approval for an alternative parking facilities and have contributed to resident concern about parking on-street.

28. In principle, the siting of a car park immediately to the east of the hockey field may seem suitable and even attractive in terms of its close proximity to the sportsground and its ability to provide access from a collector road. Another initially attractive aspect is that the area is paved already. However, the context of the review site comprises residential properties bordering the eastern boundary of the School and some residents opposite on the south side of Dendy Street. It is those residents who stand to be potentially impacted by the proposal.

29. We refer first to potential off-site amenity impacts of the proposal car park to the south-east corner of the School grounds. There are two matters that were raised in submissions, one being noise and the second being headlight glare associated with vehicle movement within and from the proposed car park.

30. Potential noise impacts may arise from various sources such as the movement and turning of cars in the proposed car park, doors slamming/closing, and players and spectators chatting, compounded by the potential for noise to travel given variations in ground levels and weather conditions.

31. We have evidence from Mr Burton that with modifications to the fence adjacent to No. 239 Dendy Street (that abuts part of the east boundary of the School), noise associated with the car park could be contained to within acceptable levels.

32. That evidence may well be correct. However, Mr Burton's initial evidence relied on information contained in the application plans that does not show the correct relationship between the proposed car park and dwellings to its east. The plan provided the separation distances from which Mr Burton drew his conclusions. It shows the car park to be around 8 metres (our estimate) short of the true position, as is clearly evident from the aerial photograph that was tendered by Mr Sherman. The consequence is that the proposed car park extends past the rear boundary of No. 1 Burwah Avenue; a factor not taken into account by Mr Burton. On being made aware of this information, Mr Burton indicated that his figures would need to be re-visited.

33. Until this point, the information provided to Mr Burton was obviously inaccurate and his evidence was not reliable to enable us to reach a conclusion as to appropriate attenuation measures if the proposal was to proceed.

34. Subsequently, on the third day of the hearing, Mr Burton was recalled by Mr Connor. Between the second and third days of hearing, a survey had been undertaken and the errors referred to above had been found to be confirmed. That is, the distance between the proposed car park and dwellings at Nos. 1, 3 and 3A Burwah Avenue was correctly shown as less than it appeared on the application plans. Mr Burton had reviewed his findings and concluded that further measures would be warranted as follows:

* The rear boundary of Nos. 1, 3 and 3A Burwah Avenue should be provided with an acoustic barrier to a uniform height of RL26, extending to the garage on No. 239 Dendy Street. The level of the car park is RL24.3.

* That would result in a fence at around the same height as the existing fence at No. 3A Burwah Avenue, a fence around 400-500mm higher than that at No. 3 Burwah Avenue, and a fence around 1.1 metres above that currently existing along the rear of No. 1 Burwah Avenue. The total fence height to the rear of No. 1 Burwah would be around 3 metres. The previously recommended barrier to No. 239 Dendy Street would still be required, at 2 metres above the car park.

35. We have considered this supplementary evidence and accept that there are ways to attenuate noise the car park, such as by the acoustic fencing along the east boundary to the level recommended by Mr Burton. However, we have serious concerns about the visual impact to dwellings of so high an acoustic fencing along their rear boundary. The notion of a 3 metre high fence along the whole of the rear of No. 1 Burwah Avenue and even a 2.63 total fence height abutting the smaller courtyard to No. 3 Burwah Avenue are most problematic. Boundary fencing to such heights is well in excess of what is normal and what would appear normal in any ordinary suburban setting. While Mr Currie and Ms Markowski (Nos. 3 and 3A Burwah Avenue) were present for the proceedings and therefore have become aware of the fencing proposal, owners of the land at No. 1 Burwah Avenue and No. 239 Dendy Street are not parties to these proceedings. As this acoustic measure has only been brought forward in the course of the Tribunal hearing, and was not part of the permit application, the owners and occupiers of those properties will not, as far as we know, be aware of these suggested measures that would directly affect their amenity.

36. Headlight glare may have been an issue for residences to the east of he site given that the car park is elevated above the adjacent properties and the layout would allow vehicles to face or manoeuvre in an eastwards direction. The acoustic fencing referred to may avoid this problem as might additional planting along the eastern boundary of the review site.

37. Headlight impacts are a matter of particular concern to residents on the south side of Dendy Street who may experience glare associated with cars departing the proposed car park. Indeed, much time was spent on this issue during the course of the hearing.

38. Mr Linke referred to separation distances to those dwellings and a high brick fence to Mrs Wilks' property in support of his initial opinion that headlight glare would not cause an unreasonable impact. Mr Tucker expressed the same view in his written statement of evidence filed before the hearing.

39. Mr Thomson had attempted a detailed analysis of this matter as part of his submission. His estimates revealed that headlight glare is likely to be a problem for dwellings on the south side of Dendy Street, most notably Mrs Wilks' residence.

40. There was clearly a lack of analysis by the Applicant in relation to headlight glare. Mr Linke's evidence was that the separation distances involved and position of the brick fence associated with the property at No. 256 Dendy Street were the factors leading to his conclusion that headlight glare was not a basis to reject the proposal. Having being appraised of the information prepared by Mr Thomson, he conceded that additional analysis may be warranted but that could properly be addressed by way of a permit condition that ensured detrimental impacts to the residents on the south side of Dendy Street were avoided.

41. On the third day of the hearing, Mr Tucker said that he had undertaken further analysis of this matter with the assistance of a further survey that had been undertaken. The survey showed that the height of Mrs Wilks' fence is different to that assumed in other material and also that the floor level of her dwelling was elevated by some 500mm above natural ground level. Mr Tucker conceded that headlight glare was a serious matter that warranted attention particularly given this additional information and photographs tendered by Ms Wilks.

42. Based on his analysis, Mr Tucker concluded (amongst other things) that headlight glare would be a problem for Mrs Wilks only in very limited circumstances, assuming a 2.5 metre high fence was constructed along the southern side of the proposed parking area. Among other things, he considered that lights from the upper section of the car park would be some 60 metres away and not cause an unreasonable impact whereas lights associated with the lower car park and driveway may cause an adverse impact.

43. We find it unnecessary to examine this evidence in greater detail. In passing we note our concern that the analysis is based on the current level of the car park utilising its existing surface. There has been no investigation to determine whether re-surfacing or other works are necessary to ensure that the surface can withstand the extent of use envisaged or that would be possible if the permit is granted. It is possible that the level of the car park may be altered if we were to impose a permit condition that requires an investigation of the surfacing and appropriate remediation works if that was deemed necessary. If that occurred, the measures proposed by Mr Tucker would also require review.

44. We understand that fencing could be added to the south side of the car park to address much of the concern about headlight glare to dwellings on the south side of Dendy Street. That would not, however, fully address the potential impacts on No. 256 Dendy Street given the position of the driveway and the fact that the fencing associated with Mrs Wilks' dwelling does not extend past her kitchen window. Moreover, consequential impacts arise which persuade us that the outcome of the proposal would be poor and is therefore not appropriate:

* Patrons of the hockey facility would have restricted viewing into the car park to enable them to ascertain whether spaces were available. That could discourage use of the car park or at least add to vehicle congestion if patrons enter the car park in anticipation of a space and are unable to locate one. The use of a fence partly with open lower sections would not alleviate that problem entirely or adequately.

* The detrimental visual impact to the streetscape with a solid 2.5 metre fence along the southern extent of the car park. A partly opaque fence of this height would still cause us the same concern.

* Security associated with concealed spaces at the edge of the School campus.

45. Mr Connor correctly pointed out that the non-School use of the sports ground is limited to specified hours that vary throughout a year. Therefore, to the extent that it might occur, headlight glare would not be an everyday occurrence. In that context, the fairly elaborate measures now proposed to address the perceived problem may arguably be regarded as poor to address a part-time use of the facility.

46. Other options were canvassed at the hearing to address the headlight issue, such as relocating the car park entry to the west, requiring the removal of a large Southern Blue Gum tree. While that may allow the fence to be abandoned adjacent to Dendy Street, we are again doubtful that this fully resolves the matter given our concerns about the relationship with properties to the east of the review site.

47. The layout of the car park causes us concern given the absence of any detail in relation to levels and grades. The application material proposes no change to the paved area. However, it is apparent from Mr Tucker's oral evidence that the ramp required to access the parking area could intrude on the paved area around one metre from the sideline of the existing court. That would no doubt impact on the functionality of the court.

48. We next refer to traffic impacts, notably on Dendy Street. This was of concern to Mrs Wilks in particular but was also raised in other submissions.

49. The information in support of the traffic evidence is reliant on data from 1999, before the hockey pitch commenced use and other changes occurred in relation to traffic management in the wider area. The anecdotal information before us is that circumstances in Dendy Street have changed; which is not an unreasonable proposition although there is no data to verify the observations.

50. We accept Mr Tucker's evidence that the additional traffic likely to be generated can be accommodated within the capacity of Dendy Street. The matter of vehicles turning into the proposed car park blocking traffic is a valid concern but could potentially be addressed by limiting car parking along part of the southern side of Dendy Street at nominated hours thereby allowing vehicles to pass a turning car.

51. The proposal before us is not shown in the school's masterplan. Indeed, other than staff parking, very little car parking is shown as being provided within the School's grounds at all in that October 2000 document. Parking associated with the gymnasium is not shown. We can appreciate concerns raised by the Council and residents that the current proposal is another ad hoc response and that a facility of the quality of the hockey arena should be provided with appropriate car parking facilities if it is to be used for non-School activities. We do not find this a reason to reject the proposal but clearly trust appears to have been sorely tested and it would be beneficial for all parties to work together to enable the School's ambitions to be contemplated in a holistic way and planned in a manner that does not create unreasonable impositions on the local residential neighbourhood within which the School is nestled. That would appropriately include an appraisal of parking needs for School and particularly non-School, out of hours, activities on the land. A consultation process involving the Council and local community, including other stakeholders such as the golf club may be beneficial and save all parties time and expense.

52. Finally, we refer to the matter of compliance with permit conditions.

53. This is a concern frequently raised in relation to permit applications. It is usually held in circumstances such as this that it would not be appropriate to refuse a suitable proposal because of concerns about the record of a proponent, just as it would not be right to approve an inappropriate proposal because the Applicant was of impeccable character.

54. In this case, we have serious concerns about the conduct of the School. However, we would not have been persuaded to reject the Application for that reason. There are obvious problems associated with the currently allocated on-site parking and there is a need to find a proper alternative. If we had been persuaded to direct the grant of a permit, we would have not departed from the usual practice that permits are granted on the basis that conditions imposed on them will be complied with or enforced. The sanctions and penalties involved for breaches of permit conditions are substantial.

55. In summary, we are not persuaded that the current proposal is acceptable for the reasons we have set out above. We will therefore direct that the decision of the Responsible Authority be affirmed and no permit is to issue.

56. We conclude by noting that various options for alternative parking locations were referred to in submissions and evidence. They included parking along the north side of Dendy Street adjacent to the review site, to the west of the hockey pitch and shared use with the nearby golf club. Some of these may well warrant consideration. However, they are not part of this application and are beyond our present task. They have not, at this stage, been properly formulated, thought through, or assessed. Consequently we can offer no conclusions as to such possible options.