Victorian Civil and Administrative Tribunal|2001-04-24

Cabrito Holdings PL v Yarra Ranges SC [2001] VCAT 2304 (24 April 2001)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for shops and signage at 61 Brice Avenue, Mooroolbark generally in accordance with the endorsed plans and subject to the following conditions:

1. The proposed development shall generally comply with the drawings denoted as Sheets SK5A and SK6 and such drawings shall be endorsed by the Responsible Authority pursuant to the provisions of this condition and the development shall not vary from the endorsed drawings unless otherwise approved in writing by the Responsible Authority.

2. This permit shall expire if the permitted development is not completed within three (3) years of the date of this permit.

3. The external cladding of the building shall be finished in the colours generally described on the elevations shown on Sheet SK6A unless otherwise approved in writing by the Responsible Authority.

4. No signs shall be illuminated or flashing lights or animated signs without the further written consent of the Responsible Authority.

5. Prior to the commencement of any works covered by this permit, engineering plans showing all car parking, driveways and drainage shall be submitted to the Responsible Authority for approval.

6. Prior to the occupation of the permitted development, the parking areas and vehicular accessways shown on the endorsed plan shall be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority.

7. The parking areas and vehicular accessways and drainage approved by this permit shall be maintained at all times to the satisfaction of the Responsible Authority and the parking areas and vehicular accessways shall not be obstructed or otherwise rendered inaccessible.

8. Prior to the occupation of the permitted development, a vehicle crossing shall be constructed in Brice Avenue to serve the development to the satisfaction of the Responsible Authority.

9. Prior to the occupation of the permitted development, piped drainage shall be constructed to drain all roofs and paved areas to the satisfaction of the Responsible Authority.

10. All sewage and sullage waste must be discharged into a reticulated sewerage system to the satisfaction of the Responsible Authority.

11. The provision of at least two (2) canopy trees (preferably of indigenous native species) in the car park area (this may require the deletion of one or two car spaces for which credit can be allowed for in on-street car parking).

12. The applicant shall not allow any drainage or effluent to enter the VRT land without prior approval.

13. No excavation filling or construction shall take place on or near the common boundary with VRT land without prior approval.

14. Entry onto VRT land shall be dependant on prior approval and upon the conditions in the approval.

15. Should any lighting associated with the proposed development (either white or coloured) be deemed by rail operators to interfere with the view of signalling by train crew the applicant shall pay all costs with restoration of signals to a safe state.

16. The floor level of the building permitted shall be RL89.15 AHD at the east boundary to RL89.95 AHD at the west boundary unless otherwise approved in writing by Melbourne Water.

17. Filling of the subject land shall generally only be carried out to allow the floor levels permitted by this permit unless otherwise agreed to in writing by Melbourne Water.

18. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into Melbourne Waters drains or watercourses.

19. Separate application direct to Melbourne Water must be made for any new stormwater connection to Melbourne Water's drains or watercourses.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mrs Louise Wolfers, Consultant, for the Responsible Authority.

Mr Russell Stockton for himself and other Respondents.

1. The proposed development is inappropriate having regard to vehicular access, location of car parking and general design.

2. The proposed development is contrary to the objectives and provisions of the Yarra Ranges Planning Scheme and Regional Strategy Plan.

3. The proposed development is contrary to the orderly and proper planning of the area.

1. The proposed development and use are appropriate for the subject land having regard among other matters to the location of the car parking and general design.

2. The proposal is appropriate having regard to the relevant objectives and provisions of the Yarra Ranges Planning Scheme and Regional Strategy Plan.

3. The proposed development accords with the orderly and proper planning of the area.

1. This is an application for review of the refusal of the Yarra Ranges Shire Council to grant a permit for a retail development comprising lock-up shops and associated parking at 61 Brice Avenue, Mooroolbark.

2. Mr Barker made application to substitute amended plans as those accompanying the application. All parties were in agreement and consequentially the application was amended under Clause 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act.

3. Mr Lattouf indicated that his appearance could be quite short as he just wished to inform the Tribunal of Melbourne Water's position in this matter. He indicated that Melbourne Water had provided the responsible authority, the applicant and the registrar with its requirements which were different from its original requirements given to the responsible authority following the receipt of the amended development plans and survey information from Mr Barker. Under the circumstances Melbourne Water is prepared to alter its required floor levels for the development because of the additional information it received from Mr Barker and had been assessed by its investigation engineers. The designated flood level for this area is 89.7 A.H.D and Melbourne Water had initially preferred a finished floor level for all shops of a minimum of 90.00 metres A.H.D. Following its revised assessment it is prepared to require a minimum finished floor level of 89.3 metres A.H.D for the most eastern shop (Shop 7) and 89.1 metres A.H.D for the most western shop (Shop 1). This was clearly stated as follows:

"Following receipt of an amended development layout and additional survey information of the site and adjacent area from Richard Barker on 8 February 2001, Melbourne Water's investigations engineers have reviewed the flood levels in the area. The survey levels show that the area falls to the west and that Brice Avenue will act as a floodway in the one in one hundred year flood event.

The recommended floor levels for the development based on the engineers calculations are that the eastern shop be set at a level of 89.3m A.H.D and that the western shop be set at 89.1m AHD.

The requirements of our letter to the Shire of Yarra Ranges dated 17 March 2000 can therefore be amended to the following:

1. The floor level of the eastern shop (Shop 7) is a minimum of R.L. 89.3 metres to Australian Height Datum (AHD) and the floor level of the western shop (Shop 1) is a minimum of R.L. 89.1 metres AHD with the floor level of the in-between shops stepping between these minimum levels."

4. Mr Barker in reply submitted that the whole of the Mooroolbark Shopping Centre is subject to inundation but in his opinion it does not make sense to require a new set of shops to have floor levels between 200mm and 500mm above the normal foot path level. This was a matter that he would very vigorously pursue during the hearing.

5. The responsible authority received the application on 4th January 2000 and referred it both internally and externally. Externally it was referred to Vic Track and Melbourne Water. The site abuts Public Transport Corporation land in which the main railway line runs and Melbourne Water is the major drainage authority. The application was advertised and three objections were received from other retailers and owners in the shopping centre. The objections related to the viability of the existing shopping centre, the existing shopkeepers economic problems and need. The responsible authority refused the application on 7th August 2000 on three grounds. Part of the second ground is no longer relevant as the new planning scheme has come into operation since the application was initially refused.

6. The proposal is to develop and use the land for seven shops and associated parking. The shops are all single storey and range in size from 35 sq. metres to 94 sq. metres with appropriate toilet facilities. They are located on the front title boundary in a row and have a total of 26 parking spaces at the rear of the site. Initially the applicant proposed to link the car parking area with the private shop development on the east side and the PTC car park on the west. While the PTC have consented to the application it has not consented to vehicle access and the shop owners on the eastern side are totally opposed to a direct vehicle link.

"The subject site is a vacant parcel of land formerly used as a petrol filling station. It is located within the Mooroolbark Shopping Centre on Brice Avenue, to the east of Manchester Road.

Land behind the subject site to the north is used and developed as the Mooroolbark Railway Station and railway line, land to the west is used a sealed car park for patrons of the railway line, land to the east is privately (separately) owned and used as driveway access to car parking for a number of shops fronting Brice Avenue. Land to the south across Brice Avenue is used and developed as an extensive row of shops and car parking areas.

The development to the east comprises approximately 17+ strata title shops with vehicle access to the rear for deliveries and the main public car parking area in front of the shops. Land directly opposite the site to the south also has a strata title development of approximately 32+ shops with some of the public car parking provided in front of the shops abutting Brice Avenue.

So there is a distinctive character in this shopping centre, where car parking areas have been provided in front of new (multi-shop) developments.

Land to the west is occupied by a row of traditional strip shops which have existed for many decades and hence, precede the current Council policy of providing car parking for the public in front of new shop developments."

8. I have extracted what I believe to be the relevant parts of the planning provisions that apply to this site from Mrs Wolfers very detailed submission. The extractions which I quote are as follows:

"The subject lots are now zoned Business 1 under Clause 34.01 of the Yarra Ranges Planning Scheme which was gazetted on the 20th July 2000 by the Minister for Planning. The Land Subject to Inundation Overlay (Clause 44.04) applies to the subject land.

A planning permit is required for the development of buildings and works within the Business 1 zone under Clause 34.01-4.

Some decision guidelines for new uses under Clause 34.01-2 include:

* The effect that existing uses may have on the proposed use.

There are also additional decision guidelines ... for all buildings and works ... under 34.01-4 which are as follows:

* The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of the fronts and backs of buildings and their appurtenances...

* The storage of rubbish and materials for recycling.

A planning permit is required to construct a building, some uses or carry out works and to remove, destroy or lop any vegetation ...

Land Subject to Inundation Overlay - Clause 44.04

A planning permit is required for all buildings or works on land affected by this overlay unless an exemption applies. No exemptions apply in this instance. The overlay only affects a narrow parallel portion of the rear of the property proposed to be occupied by car parking.

The application is required to be referred to the relevant drainage authority for comment (being Melbourne Water) which was done and their reply dated the 17th March 2000 advises that they consent to the application provided 6 conditions are met including a building floor level of R.L 90.0m AHD. The applicable flood level is 89.7m AHD.

Commercial Centres Local Planning Policies ... Clause 22.04

The objectives for Commercial Centres Policy are to:

* Provide well designed and integrated commercial centres that provide a range of retail and business facilities and associated community services that meet the needs of the local residents and the tourists visiting the municipality.

* Reinforces and strengthens the centres viability, vitality and efficiency;

* Achieves safe, attractive and functional pedestrian pathways and linkages;

* Achieves effective management of vehicular traffic;

* Cluster land uses that complement the role and function of the centre.

* Encourage land uses in the centre that will maintain and enhance the viability and vitality of the centre.

* Develop the continuity of shopping activity at street frontages in the core retail area.

Following the land use objectives are a number of performance criteria ... and it is policy that:

* The proposed use must be located on a site that can provide adequate car parking without compromising the character and appearance of the built and natural environments.

* Traffic generated by a proposed use must be able to be accommodated without compromising the functioning of the centre or detracting from the residential amenity of the surrounding area.

* Shops and business uses in the core area of the commercial centres provide a continuity or retail display windows at ground floor level.

There are a number of objectives for building and works ... which are:

* Design new development to be compatible with the established character and built form, or width of the surrounding commercial development..."

9. The MSS has a number of strategies for existing and new businesses. These are mainly in relation to the importance of tourism. They have no real relevance to this application.

10. The SPPF has a number of key policies that have to be taken into account and the relevant parts of this relate to activity centres, car parking and public transport access.

11. From my assessment there are three key issues in this matter. The first is the land being liable to flooding and therefore the floor level issue. The second is parking and access and the third is orderly and proper planning relative to Council policies.

12. On the first issue the drainage authority, Melbourne Water, has clearly indicated in its letters to both the Council and the Registrar that its conditions for not opposing the proposal include those in which it has nominated minimum floor levels for the buildings. The responsible authority seems quite happy to accept Melbourne Water's levels, however, Mr Barker has argued most strongly that the levels are not in keeping with the rest of the shopping centre and will have a great impact on his client's proposal. As support for his contention he quoted a number of points made by the Council officer in the delegate's assessment of the application relative to Melbourne Water's initial requirements. These were as follows:

* Unlikely to impede flow, has already been built on.

13. Based on the premise that almost the whole of the Mooroolbark Shopping Centre is underneath the designated flood level. Mr Barker made the following submissions:

"* All of the shops in the vicinity of the subject land and the Coles Supermarket are significantly below the stipulated minimum floor level.

* The railway line is, within close proximity to the subject land, over 2 metres below the stipulated floor level.

* The floor level of the existing development and the access hatches to the underground fuel tanks on the subject land are considerably below the stipulated figure.

* The public footpaths with which the proposed development of the subject land must connect are in part approximately 1.5 metres below the stipulated floor level."

14. Mr Barker further observed that Melbourne Water had altered its position on a number of occasions during the process prior to this. The last was on the Friday before the hearing when the levels, the subject of the 12th February letter to the Registrar, were confirmed. He submitted that the railway tracks at the station are in the order of 1.4 metres below the highest proposed floor level for the shops. He also submitted a range of levels for existing shops within the centre. These are between RL88.89 and RL89.46. His proposal is for levels between RL88.6 and RL89.1. He submitted that these levels are consistent with the floor level of the existing building on the land and the floor levels of adjoining shops and the street footpath. He further submitted that these levels in fact made sense as it was silly to expect anyone to build small shops completely abutting the footpath with floor levels of ½ metre above the footpath.

15. Mr Lattouf, before he excused himself, indicated that Melbourne Water was in fact planning to develop a major retarding basin in the catchment above the shopping centre and that this enabled them to partly review the floor levels and to drop them below the designated flood levels. When I suggest that may be there was some ad hoc arrangement in this approach he did not deny it and this led Mr Barker to also comment on the lack of apparent scientific approach to the issue by Melbourne Water.

16. Mr Barker also spoke of the existing building being a service station with fuel and storage tanks on the site that had been designed without any special reference to flood prone areas. He indicated that any of this proposed development would certainly be an improvement from a safety and environmental issue.

17. Mr Barker then produced a decision by the Tribunal in application for review No. 2000/58421 Leevale Pty Ltd v Yarra Ranges Shire Council and Melbourne Water where the Tribunal member in a review of the failure to grant a permit granted a permit for a petrol station, convenience shop, car wash etc at 6 Bell Street, Melba Highway, Yarra Glen in land subject to inundation. However, his comments on this matter, which I believe to be the most relevant, were:

The subject land and surrounding land at the southern end of Bell Street will be subject to inundation as a result of the flooding of the Yarra River in a 1 in 100 year event. The subject land is low enough to be affected on a more frequent basis. The subject site is also within the overland flow path of a small local catchment, called in Ms Wicks' submission the Farrell Street Catchment. But the municipal engineers are of the view that the existing system of underground and street drainage has a potential to carry much of the 1 in 100 year flood flow. Therefore, while the site is regarded as being within an active floodway, not because of the velocity of flows which are very low, but because of the depths of inundation.

In many respects the proposed use and development is a relatively flood friendly form of land use and development. For example:

* The fuel and oil storage systems, and the waste disposal systems, can be designed to avoid contamination during a flood event;

* Because of the largely self service nature of the proposed activities, the number of persons employed at the site is very small;

* The site is to be developed as an open paved space with very little building to physically obstruct the flood plain, or to be damaged by flood waters;

* Some of the plant required by the use such as air conditioners, pumps and compressors (other than the fuel bowsers themselves), can be installed in elevated positions to reduce the risk of damage.

18. In my opinion that situation is very different from the one with which I am dealing. The service station and car wash with a convenience shop is certainly not the same as 7 lock-up shops with only one entry at the front door. However, having said that I must agree that these shops are at the edge of the land liable to flooding overlay and in fact if the flood attained the levels of the overlay it would not be very much affected. But if there was a flood that met or exceeded the designated flood level then it could be a real problem for occupiers and customers to such premises. Mr Barker made some valid comments about the approach taken by Melbourne Water in its assessment of and setting of floor levels for the proposal. Be that as it may he produced no evidence from hydrological experts to refute the conclusions drawn by Melbourne Water engineers after the examination of the information provided by him. What he did was appeal to me from a practical point of view not wanting to have lock-up shops sitting up in the air above the footpath particularly with regard to access by disabled persons.

19. I agree with Mr Barker about the practicality of siting these shops well above the existing footpath level particularly if that is the way the rest of the shopping centre has been designed and developed. I doubt if Melbourne Water officers really took this into consideration. Having no evidence to the contrary and only submissions from Mr Barker I am not in a position to vary the drainage authority's conditions. However, I do ask that both Mr Barker, the responsible authority's drainage engineers and Melbourne Water's investigation engineers pursue this matter and hopefully agree to reduce the floor levels to the footpath level if in the opinion of the engineers this is a practical, safe solution.

20. Mr Stockton did not argue about economic issues purely location of the car park, the reasons why his body corporate has denied access through the site and the positioning of the shops on the street boundary.

21. In relation to parking and access I am satisfied that Mr Barker is providing more than sufficient parking. In fact I would have thought that the parking numbers could be reduced somewhat as I am convinced that the responsible authority's rate of 8 spaces per 100 sq. metres is far too great and that 4 spaces is a far more practical approach to take. I base my own conclusion on a number of submissions made and evidence given by traffic engineers in other shopping centre matters which included surveys done by these traffic engineers and they have generally concluded that 4 to 6 spaces per 100 sq. metres is sufficient. This reflects the actual usage of car parking areas. Mr Barker has in fact provided 24 parking spaces and wanted this to be reduced to enable a better amenity of access to them by both customers and staff alike. It also gives the opportunity for further landscaping of the parking area.

22. On the matter of connectivity between parking areas, although as Mr Stockton said his body corporate is quite able to erect a fence between the two properties, I believe it is a shame if the responsible authority is not taking a more positive approach in this regard. It is far better to have parking connected within a shopping centre than what is being proposed here. In my opinion there should be connectivity between the PTC car park, the subject site and Mr Stockton's body corporate site. I understand Mr Stockton is concerned about the safety of people with Australia Post vehicles coming and going, however people using car parks in shopping centres are quite used to vehicle movements within the car parking areas and I think his concerns are unfounded. I urge the responsible authority to take a lead in trying to change the situation.

23. In relation to orderly and proper planning and Council policies, one of the Council policies is that there should be a continuity of retail display windows at ground floor level. The shopping centre is not uniform nor is the parking regime. In some instances parking is in front of shops and in others parking is at both front and rear of them.

24. The proposal to place the proposed shops at the building line is a normal one for the majority of strip shopping centres and is not at all unusual for parking to be provided behind shops even though people might have to walk around the shops to gain access to them. Shopping centres do not operate successfully unless parking is shared. People don't often drive from one shop parking area to another to go from shop to shop. Therefore the whole parking issue eventually spreads itself across the whole shopping centre.

25. I intend to issue a permit subject to conditions. In relation to the conditions Mr Barker has been given 7 days in which to submit his own conditions or criticisms of the Council's proposed conditions.

Cabrito Holdings PL v Yarra Ranges SC [2001] VCAT 2304

At a glance

Court

Decision date

Source

Judgment (103 paragraphs)

Cabrito Holdings PL v Yarra Ranges SC [2001] VCAT 2304 (24 April 2001)

Parties