Victorian Civil and Administrative Tribunal|2002-09-23

Cambrai Pty Ltd v Greater Geelong CC & Ors [2002] VCAT 1048 (23 September 2002)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Permit Application No. 933/01. Residential 1 Zone. Heritage Overlay (HO1630). Residential building (60 bed Nursing Home). Site (Frontage 56.7 metres, Area 2912 square metres). Significance of the heritage place. Effect on the significance of the heritage place. The public realm. Demolition. Need. Neighbourhood character. Streetscape. Back yard amenity. Landscape. Building envelope. Open space. Overshadowing. Daylighting. Privacy. Car parking, Traffic.

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for demolition and for a Residential Building (60 Bed Nursing Home) at 19-23 Glenleith Avenue, Drumcondra, generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the amended plans substituted in the application by order of the Victorian Civil and Administrative Tribunal dated 24 June 2002 but amended to show the following:

a) Colours and materials generally in accordance with the colours and materials tabled at the hearing of Application for Review P236/2002

b) Boundary fencing designed to protect privacy of adjoining properties from overlooking from the ground floor habitable room windows of the development hereby approved.

c) Landscaping generally in accordance with Drawing No. 2252/2 dated 28 May 2002 prepared by Carol Frank-Mas, Landscape Architect, including an irrigation system for the gardens and planter boxes, a specification for the establishment and maintenance of planter boxes, and root barriers where it is established that there is an eathernware sewer located on an adjoining private property with 2 metres of the subject land.

d) Design details of proposed planter boxes and other screening mechanisms.

e) Design details front boundary fencing with such fencing being semi-transparent and with a height not exceeding 1.5 metres.

2. Engineer designed plans showing pits and pipe sizes, finished surface and existing surface levels, creation of appropriate easements and connection to the existing Council drainage network are to be submitted and approved by the Responsible Authority prior to construction commencing. The drainage design plan shall cater for the development site.

3. Prior to the commencement of the use hereby permitted, drainage is to be constructed in accordance with approved plans to the satisfaction of the Responsible Authority. The permit holder shall fund the design and construction of works relevant to the development.

4. The privacy screens, and planter boxes shown on the endorsed plans, shall be completed prior to the commencement of the use hereby permitted and shall thereafter be maintained to the satisfaction of the Responsible Authority.

5. Any vehicular crossovers which are redundant as a result of this development, shall be removed and the kerb and channel, footpath and nature strip shall be reinstated as required, at the expense of the permit holder, to the satisfaction of the Responsible Authority within 30 days of the issue of the certificate of occupancy. Any damage effected to road reserve improvements in the course of construction works shall be promptly reinstated, at the expense of the developer, to the satisfaction of the Responsible Authority.

6. Prior to the occupation of the development hereby approved, areas set aside for parked vehicles and access lanes and vehicular crossings as shown on the endorsed plans must be:-

a) Constructed and marked to the satisfaction of the Responsible Authority.

b) Properly formed to such levels that they can be used in accordance with the plans.

c) Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority.

d) Drained and maintained to the satisfaction of the Responsible Authority.

e) Parking areas and access lanes must be kept available for these purposes at all times and maintained to the satisfaction of the Responsible Authority.

7. Prior to the occupation of the dwellings hereby approved, landscaping and associated works shown on the endorsed plans, must be completed and thereafter maintained to the satisfaction of the Responsible Authority. Plantings shall be as mature as can be made consistent with good landscaping practice.

8. Low intensity lighting must be provided to the satisfaction of the Responsible Authority to ensure that car park areas and pedestrian accessways are illuminated during evening periods.

9. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse impact on adjoining land.

10. No mechanical plant, equipment or services shall be permitted above the roof level of the building other than in accordance with the endorsed plans unless otherwise agreed to in writing by the Responsible Authority.

11. Mechanical plant and equipment, including air conditioning, kitchen and laundry flues and air extraction plant shall not cause detriment to adjoining properties by way of noise, smoke or fumes and shall conform to the standards of the Environment Protection Policy or Policies, to the satisfaction of the Responsible Authority.

12. Noise emissions from any plant or equipment must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

13. All service pipes fixtures and fittings (excluding downpipes and spouting), must be concealed on exposed elevations above first floor, floor level, to the satisfaction of the Responsible Authority

14. A Plan of Consolidation incorporating the titles of Lot 6, 7 and 8 on Plan of Subdivision 5507 shall be lodged for registration prior to the commencement of the development. The consolidation plan must not be withdrawn and all Land Titles Office requirements promptly satisfied. The use shall not commence until the Consolidation Plan is registered.

15. All garbage/refuse generated by the use hereby permitted shall be stored on site and shall be screened from view from outside the site, prior to its disposal.

The storage, removal and disposal of such garbage/refuse shall be undertaken in such a manner as to avoid any nuisance, pollution or loss of amenity to the surrounding area and shall at all times be to the satisfaction of the Responsible Authority.

16. The amenity of the area must not be detrimentally affected by the use or development, through the:-

a) Transport or movement of vehicles, materials, goods or commodities to or from the land.

c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

17. The site including all buildings, works and landscaping shall be maintained in a neat, tidy and safe condition in accordance with the endorsed plan to the satisfaction of the Responsible Authority.

18. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

19. This permit will expire if one of the following circumstances applies:-

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

or within such extended time allowed by the Responsible Authority on application made before or within three months of the expiry of the permit

20. The development, once started, shall continue to completion without undue delay and to the satisfaction of the Responsible Authority

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.

Mr Warwick Nelson, Solicitor appeared on behalf of the Responsible Authority.

Mr Noel Bradbury, Architect, Ms Lorraine Huddle, Conservation Consultant, and Mr Robert Barry, Regional Officer for the Country Fire Authority, as witnesses in support of his submissions.

Mr Gary Testro, Solicitor, appeared on behalf of a number of the Respondent Objectors who are most directly affected by the proposal.

The second day of the hearing was conducted at Geelong, and on that day a large number of Respondent Objectors made submissions, on their own behalf, on behalf of other Respondent Objectors including interested organisations.

The persons on whose behalf submissions were read on that day were:

Mr Stephen Jones, Barrister appeared on behalf of the Permit Applicant and Applicant for Review. Mr Jones called the following witnesses in support of his submissions:

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a proposal for demolition, and for the development and use of a 60 bed nursing home in Glenleith Avenue, Drumcondra. The Responsible Authority ultimately decided that had it not been for the application for review it would have issued a notice of refusal to grant a permit on the following grounds:

s The proposed use and development is an over-development of the site in terms of the intensity and scale of the proposed use, size and scale of buildings, location and the affect on the area.

s The proposed use and development is not appropriate for the site because it is contrary to the established neighbourhood character of the precinct.

s The proposed use and development would adversely affect traffic and parking conditions in the locality.

s The proposed use and development would be inconsistent with the orderly and proper planning of the area.

s The proposed use and development is not appropriate for the site because of its affect on the amenity on the neighbouring properties due to overlooking, building bulk and visual intrusion.

2. The parties and the witnesses at the hearing of this application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The second day of hearing occurred in Geelong, the hearing otherwise was conducted in Melbourne. The Tribunal inspected the subject site and its locality in the presence of a number of the parties at the conclusion of the second day's hearing.

3. The following extract from the officer's report to the Responsible Authority briefly describes the site and its locality:

The subject site is located on the northern side of Glenleith Avenue, approximately 100 metres east of the Princes Highway. Currently the site includes three adjoining titles of land. A nursing home currently operates from the property at 21 Glenleith Avenue and single storey detached dwellings are located at 19 Glenleith Avenue and 23 Glenleith Avenue. The dwelling at 23 Glenleith Avenue is a contributory building as identified in the City of Geelong West Conservation Study.

The neighbourhood is predominantly residential in nature and is characterized by average to large allotments with the construction of either larger weatherboard, red or clinker brick Edwardian or Californian Bungalow period homes with terra-cotta and corrugated iron roofs. The allotment sizes allow generous front setbacks with medium height fences.

Glenleith Avenue is predominantly made up of single storey detached dwellings with established landscaping. The subject site is within close proximity of the intersection of the slip lane from the Princes Highway and the incline over the bridge toward Ballarat Road.

Other non-residential developments in the area include the Drumcondra Bowling Club which is located approximately 150 metres south west of the subject site and retail premises fronting the Princes Highway approximately 60 metres north west of the subject site.

4. Over the course of the permit application process the proposal was modified in response to suggestions and criticisms from a variety of sources. The proposal before the Tribunal at this hearing arose from an earlier order of the Tribunal amending the permit application by the substitution of amended plans. The major change in that particular proposal from an earlier proposal considered by the council, was the introduction of a basement car park on that part of the land which is currently 19 Glenleith Avenue. The following extract from Mr Whitney's submission briefly describes the proposal:

The proposal involves an upgrade and extension of the existing Glenburn Nursing Home, which is situated at No.21 Glenleith Avenue. The nursing home currently contains 30 beds for high care nursing home accommodation. To meet current Federal Government accreditation standards, the accommodation needs to be upgraded. As a consequence it also needs to be increased to a viable size. The proposal seeks to utilize the properties adjoining on either side. The property at No.19 is occupied by a single storey brick dwelling which is of no significance. The property at No.23 is occupied by a single storey weatherboard dwelling which is identified as a 'contributory building' in the city of Geelong West Conservation Study.

The nursing home itself is of no architectural or heritage merit.

It is proposed to demolish the dwelling at No.19 and the rear sections of the existing nursing home and the contributory building at No.23 and to create a two level compliant nursing home with a total of 60 beds, 33 at ground level and 27 at first floor level.

The building is to be articulated in a manner that incorporates elements from the surrounding neighbourhood with respect to materials and design. It is designed to read as three separate buildings with the linkages between each being setback some 22.8 and 24.4 metres from the front boundary.

The overall building has a site coverage of 57.33%. the upper level is setback to a greater extent than the lower level and has a footprint which represents 62% of that of the ground floor.

The proposed basement car park, to be created on the property at No.19 will enable a total of 18 on-site car spaces to be provided. The car park will be accessed via a new single crossover at the western side of No.19 and allow the reinstatement of nature strip, curb and footpath in front of Nos.21 and 23.

5. The existing nursing home is an old fashioned 30 bed nursing home which appears to have been established some time during the 1960's. It has a reputation of being well conducted. However, the existing nursing home will not be able to meet the federal standards which are required to be achieved within the next five to six years. Within the industry it is generally recognised that nursing homes would have to be larger than 30 beds to ensure economic viability. As a consequence of these factors the Applicants have applied for and obtained the Federal Government approval for 30 "low care beds" in addition to the 30 "high care beds" they already operate, and have put forward this present proposal for consideration by the Responsible Authority. The allocation of these beds is also consistent with the Federal Governments policy in relation to ageing in place.

6. The hearing of this application for review extended over five days with extensive evidence and submissions being presented to the Tribunal. For the purposes of this decision I intended to discuss what I think are the most important issues in this application for review under five broad headings, and then to sequentially deal with a number of more particular issues raised during the course of the hearing. The five broad headings are:

7. In Attachment 1 to this decision, I have set out a lengthy extract from a decision of Mr. Ian Marsden, Senior Member, in . I include the extract because the decision deals with many of the issues which have been of importance in this case, and I believe arrives at similar conclusions to my own. Mr. Marsden also comments upon the limited relevance of the Good Design Guide, I adopt his conclusion in this regard and do not propose to deal with this any further in these reasons.

8. In the planning system uses are ordinarily characterised for a technical purpose, that is to determine how they are affected by the controls and policies set out in planning schemes. This technical issue is relevant in this application for review, but I also think there is a more philosophical issue associated with the characterisation of, or understanding of, the use which is perhaps even more important in striking an appropriate balance between the competing issues and policies relevant to a proposal such as this. Many of those opposed to the proposal characterised it as a commercial operation whose interests in the context of the residential zone should be less important than the interests of the more conventional residents of the neighbourhood.

9. It was accepted by the parties that the planning scheme treats nursing homes as a residential use, with a nursing home being regarded as a residential building which like dwelling falls within the broad land use term accommodation. Indeed this is hardly surprising given that for the residents of the nursing home the nursing home is their place of residence.

10. However, Mr Fadgas sought to distinguish nursing homes from other forms of residential accommodation arguing that policies in relation to population and housing in the planning scheme do not apply to nursing homes because:

"However, this application is not about satisfying future population growth, it is about the very substantial intensification of residential business activity in a designated residential heritage area.

However, in my opinion the urban growth policies in the scheme are intended to apply to "conventional" residential development."

11. Mr Testro and others argued that this particular residential use was inappropriate because it failed to serve a local community need relying for example on a purpose of the Residential 1 Zone which states:

"In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non residential uses to serve local community needs."

12. I consider that these propositions are misguided, and fail to give proper regard to the fact that the planning scheme unambiguously regards a nursing home as a residential use. Nursing homes provide accommodation for a particular group in our community, new nursing homes or extended nursing homes provide for growth in a population for that demographic group, nursing homes are not some form of non residential use serving the needs of the local community, they are a form of residential accommodation which is consistent with the primary purpose of the residential zone.

13. Similarly Mr Fadgas relied heavily on clause 22.01 discretionary uses in residential areas, of the planning scheme ordinance. When I put to Mr Fadgas that a reading of the Policy Basis set out in the clause would suggest that it was primarily directed to non residential uses, and was therefore of limited relevance, he agreed that it could be read that way, but responded that on the basis of his own experience of planning in Geelong he knew that when the discretionary uses policy was first developed it was intended to encompass uses such as nursing homes. I agree on the basis of my own experience in Local Government and Town Planning that this is likely to be the case. However, ideas have changed considerably over the last decade or more, planning has for a long time been focused with accommodating transforming social and demographic change, including a significant growth in the proportion of the population who are aged. As a community we have recognised that the needs and interests of those amongst us who must reside in a nursing home are of importance. The inclusion of nursing homes within the same broad group as dwellings in the planning scheme is a recognition of this change in thinking.

14. The characterisation of the nursing home as a commercial enterprise is irrelevant. All housing, other than housing provided by the government, is provided on a commercial basis whether it is the house builder who builds houses for sale or the investor who builds apartments for rent or the operators of retirement villages and nursing homes etc. While economic issues can be relevant in a planning matter, in this case nothing of relevance arises from the fact that the residents of the nursing home provide for their accommodation through a commercial relationship with the operator subsidised by the government, vis-a-vis the purchase or rental arrangements of other residents in the locality.

15. All the parties in this application for review argued the issue of need in one form or the other. The local residents argued that the Drumcondra community had no need for a 60 bed nursing home, while on the other hand it was argued on behalf of the Applicant that the applicant's success in its application to the Federal Government for additional beds, was proof of the need which exist for the facility. Before turning to these arguments it is worthwhile considering what the Tribunal has said in relation to the issue of need. The most often referred to case is the decision of the Planning Appeals Board in

Shell Co v City of Frankston (1983) 1 PABR 107, in which the following passage appears:

"The Board believes the time has come for it to state that the principle of `need', as expressed in L'Estrange v City of Hawthorn_, is not a correct statement of planning principle. Need is a relevant consideration but not an essential requirement. Town planning is not concerned with general economic regulation or the rationalisation of product markets; rather it is concerned with the pattern of land use and with promoting consistency between various uses of land. Town planning provides a fetter on our free enterprise market system, but it is not designed to replace that system with a form of a centralised economic decision making. Moreover competition is an essential ingredient of the market system. Consequently the principle of `need' should not be used as a planning tool to stifle competition. If an Applicant can show a need for a proposed use then this factor may outweigh other considerations adverse to the use. However lack of a need will rarely, if ever, be a ground for refusing to grant a permit"._

16. This decision was made in relation to need in the context of economic competition, I consider that it is equally applicable to other competing considerations. It is the penultimate sentence in the quotation above which sets out the applicable principle. In Application for Review 1998/89054 Caroline Investments v Stonnington City Council, a Tribunal on which I was a member regarding the need for improved school facilities as a factor to be weighed against the likely amenity impacts of the development:

Schools are an important aspect of community life, changing expectations affect schools just as they affect other elements of life, schools must respond to these expectations. In this case the proposal provides only for very basic facilities, the need for these facilities is a relevant consideration, a factor to be balanced against adverse consequences of the development.

17. On the other hand as I have observed in application for review 2000/68929 Thomson v Glen Eira City Council, the mere existence of a genuine social need does not outweigh every other consideration:

The social utility of medium density housing is exemplified by this proposal, as the permit applicant is a local resident currently residing with his parent and who requires a small dwelling for his own use, while the owner of the land is a person who wishes to remain in her dwelling but must not necessarily be burdened with the upkeep of the larger site. However, the validity of these social objectives does not overcome the need to arrive at an appropriate design solution.

18. The social and economic implications of the ageing of the population has now entered into the mainstream debate, with the Federal Treasurer releasing a report on this issue in the context of the last Federal Budget. There are two forces at work which create the need for new nursing home beds and other forms of accommodation for the aged persons. These forces are the aging of the population, and the changing community expectations in relation to the standards of accommodation which should be provided in these cases. In my view Mr Whitehead's evidence clearly established a need for accommodation of this type, and indeed demonstrated that the need for this type of accommodation will grow in to the future ie:

Statistics of population projections for the Greater Geelong LGA as gathered by the Victorian Government (Department of Infrastructure) are as follows:

s Projections for this age group as at 2011 is 24408, an increase of 11%.

s Projections for this age group as at 2025 is 31630, an increase of 31%.

19. I am satisfied on the basis of the evidence before me that there is a significant need for new accommodation of this type in the Geelong region, and in this part of inner Geelong in particular. It is my view that the need for this form of accommodation is a relevant consideration in this case, and one which will influence the balance to be struck between competing issues arising in respect of the application.

20. The Responsible Authority has an exhibited Planning Scheme amendment which seeks to introduce neighbourhood character statements in to the Planning Scheme. The officer's report to Council dealt with this matter as follows:

Amendment C40. This amendment seeks to incorporate the Character Precinct Brochures prepared as a result of Council's Residential Character Study. The preferred character statement for the area within the exhibited study is as follows:-

The spacious garden settings and identified heritage qualities of the area will be maintained and strengthened by:

s Retaining the identified heritage buildings and ensuring adjacent dwellings respect the form, scale and materials of these buildings;

s Ensuring that development reflects the existing patterns of front and side setbacks in the streetscape;

s Encouraging the use of lighter looking building materials, including timber and other non-masonry cladding, where timber predominates;

s Encouraging buildings that respect the 1-2 storey scale of the area;

s Ensuring larger dwellings with waterfront views maintain predominant setbacks and avoid a bulky appearance through articulation of the form and attention to design detail, including materials.

s Large bulky buildings and boundary to boundary development.

s Buildings set too far forward or not offset from at least one boundary**.**

21. Mr Fadgyas referring to the Neighbourhood Character Statement adopted a similar approach to that of Ms Huddle in her Heritage Assessment concluding:

Without going through the detail of the document, it quickly becomes evident that the proposal is the antithesis of the character of this neighbourhood, and short of reverting to three separate dwellings on three separate titles, with 'characteristic' setbacks, styles and gardens, the proposal as submitted is incapable of satisfying the 'neighbourhood character' purpose of the scheme.

22. While the architecture of the proposed building does seek to preserve the architectural style, and the rhythm of buildings along the streetscape of Glenleith Avenue and typically found within this precinct, it is in reality a large building extending over three lots in a way which is to that degree uncharacteristic of the locality. In Application for Review 2000/026235 PrimeLife Corporation Ltd v Bayside City Council, I and Ms Jeanette Rickards my colleague in that particular matter observed:

7 It is our view that the principal issue in this appeal, is the issue of whether or not the proposal is an overdevelopment of the site, and the closely related question of whether or not it is sufficiently respectful of neighbourhood character. Other issues which we will deal with in these reasons include the issues of architecture, traffic and access, privacy, together with a number of less significant matters.

8 It was argued that the proposal was an overdevelopment of the land, and the indicators of overdevelopment were held to be the number of dwellings proposed, that is 55 dwellings, and the large somewhat institutional character of the proposed building.

9 It is entirely true that in terms of the proposed physical development, the proposal is quite different to the detached houses and medium density developments which are characteristic of much of suburban Melbourne. The domestic scale of these conventional residential dwellings largely defines the character of residential neighbourhoods, and that is true in this locality. However, these dwellings are not the only elements that contribute to and define the character of a residential area, schools, churches, public halls, kindergartens, hospitals and nursing homes are all uses which can be found within a residential zone. Nursing homes, and aged persons accommodation such as this, are in fact residential uses which are properly located within a residential zone. The scale of this and similar buildings is defined by the needs of the residents and the practical and economic considerations which attach to realising those needs.

10 Therefore, accommodation such as this is entirely appropriate within urban and suburban environments, notwithstanding the fact that the frequency of the occurrence of such buildings will be rare by comparison with the occurrence of conventional dwelling types. It follows from this that it is our opinion it is inappropriate to apply the notions of overdevelopment, and neighbourhood character, to proposals such as this, in the same way that one would apply such notions to a more conventional medium density proposal. In any event, in this case a large part of the subject land is occupied at present by a substantial hotel and its car park, and therefore the extent to which there is a change in the character of the local environment is less than would be the case if the site was comprised for example of five conventional suburban lots each with its own detached house.

23. The architecture of the proposed building is in many respects a pastiche of the architectural styles found within the locality. In respect of number 23 Glenleith Avenue, the front portion of the existing dwelling is to be retained and renovated. The two storey element of the building which links across all three lots is set back deeply behind the frontage of the lots, and the single storey elements which are set forward on each of the lots. Therefore, in my view other than from a 'front on' perspective, the proposed design will largely preserve the established rhythm and character of the Glenleith Avenue streetscape. In my experience the design is in this respect more successful than are most nursing homes in-filled into established residential areas, other than those which have successfully converted pre-existing large scale buildings.

24. I think the correct approach to neighbourhood character in respect of proposals such as this is that set out in the Primelife decision referred to above. The current proposal has sought to accommodate neighbourhood character to a greater degree than might necessarily be expected. I approve of the form and massing of the proposed building, I would have perhaps preferred a slightly less derivative form of architectural detailing, but this more a matter of taste and not an issue in relation to which I am making any decision.

25. Backyard amenity is in many respects an aspect of neighbourhood character, nevertheless, it is such an important issue in this appeal and I have chosen to deal with it separately in this decision.

26. The boundary setbacks of the proposed building at first floor level exceed the requirements of the Good Design Guide, and adjacent to the rear boundary of the site the long face of the two storey element is very significantly articulated by the use of projecting wings.

27. In respect of the immediately adjoining properties to the east and west the affect of the design is that there is a two storey element which while reasonably well set back, a two storey wall does extend for a considerable distance along their respective side boundaries. If this was a conventional medium density development in a neighbourhood context such as this, it might be successfully argued that the impact of this two storey element is unacceptable, and some other design response may be preferable. But the design and economic constraints which apply to the development of a nursing home limit the extent to which other design solutions are practicable. For the reasons set out in the Primelife case, I am of the view that the massing of the building in relation to these two adjoining properties is acceptable in the context of the particular proposed use and development.

28. The subject land is visible from the rear gardens of dwellings located on the south side of Drumcondra Avenue across the right-of-way running along the rear boundary of the land. The properties to the north of the subject land have a particularly open view of the proposed buildings, because there is very limited vegetation at the rear of these properties, and at the rear of the properties comprising the subject land. Therefore, the vegetative screen which often exists in suburban situations such as this is not present in this case.

29. Therefore, these residents will have a relatively unimpeded view of the first floor level of the proposed development, and this will be a significant change to the open amenity which they currently enjoy. The question is is it an unreasonable change?

30. The three projecting wings are set back some 10.5 metres from the rear boundary of the Drumcondra Avenue properties. The balance of the building is set back some 26 metres from this boundary. While there will be an unfettered view of this elevation until the landscaping proposed by Ms Frank-Mas becomes established, in my view these setbacks mean that there is no unreasonable loss of amenity.

31. Privacy is an important issue raised in the context of this backyard amenity issue. It is proposed to install planter boxes on the windows of those bedrooms which might afford a view over adjoining private open space. The width and height of the proposed planter boxes is such that a tall person standing very close to the window may be able to obtain a view downwards into nearby open spaces. This privacy measure may not fully comply with the techniques and design suggestions set out in the Good Design Guide. If this was a more conventional housing type, one may consider more stringent privacy measures, but in this case these rooms are in effect the residences of their occupants, and the amenity of that space is therefore very important to those people. The occupants of these rooms are likely to be bedridden or seated for most of the time they are in the room, these occupants are unlikely to have any significant impact on the privacy of adjoining neighbours. It is therefore my conclusion that the proposal will have very limited impact on the privacy of adjoining properties, and that the design strikes an appropriate balance between the amenity of neighbours and the amenity of future residents.

32. The statement of significance for the Drumcondra area set out in the Geelong West Heritage Study is:

The Drumcondra area has a distinctive early C20th Century residential character which has been strictly maintained. The area contains a very high proportion of its original buildings in good condition, enhanced by their garden settings and street tree planting. The laneways are an integral part of this area.

33. Factors which the study suggests are characteristic of this area include, the grid pattern of allotments, the mix of dwelling types, the allotment sizes and generous side and front setbacks, the use of consistent materials, the application of rich architectural detailing, the complex articulation of building forms, low fencing, and the predominance of single storey dwellings.

34. As I concluded in my discussion on neighbourhood character, the design of the proposed buildings has with some success sought to preserve and emulate the pattern and style of buildings within the streetscape. Nevertheless, it is inevitable that a large building extending over three lots, is not entirely consistent with the heritage character of this locality, dependent as it is on the relatively uniform distribution of early 20th century houses on single lots. If one adopts the view of Ms Huddle, that the only way to preserve and respect the heritage character of the Drumcondra area is to retain this characteristic, then the proposal would be unacceptable from a heritage perspective.

35. I disagree with this conclusion for two reasons. In respect of the site itself only one of the three buildings affected by the proposal has any heritage significance, and the important aspects of that building are to be preserved in this scheme. The redevelopment of this site has no direct effect on any adjoining building which is itself of heritage significance. The architectural style, the massing, and the articulation of the proposed building is such that it will have a limited effect on the overall heritage character of the Drumcondra area. I prefer Mr Bick's evidence in this regard.

36. The Heritage Adviser to the Responsible Authority ultimately supported the proposed redevelopment, in doing so I believe the adviser recognised that there are considerations other than purely heritage considerations in any proposal of this type, ultimately I believe that he or she adopted a more balanced approach. The Heritage Adviser's comments extracted from the office's report to the Council, is set out below:

There are three separate places that are being incorporated into one 60-bed nursing home. "Glamis", at 23 Glenleith Avenue, is individually listed, 'D' listed, of contributory significance and most of it is being retained. The three places are within the Heritage Overlay Area HO1630.

The design has been substantially reworked since the last concept submitted. It addresses most of the concerns raised in that report dated 21 June 2001. The proposal, from a heritage perspective, is greatly improved. There is still a substantial two-storey component but is reasonably recessed back from the Glenleith Avenue façade of the 3 buildings. When viewed from the street and the lane the second storey is generally within the roof space. The Glenleith Avenue perspective drawing illustrates this well...in respect of two-storey height, the Heritage design guidelines permits 2 storeys provided the second storey is within the roof space or reasonably well setback from the front façade.

The ground floor extensions for the three 'individual' buildings are generally behind the front four rooms and the east-west axis of this extension 'wing' is located almost central to the development. This helps maintain the sense of separation of these 3 buildings, not only when viewed from Glenleith Avenue, but also from the rear lane, and is to be applauded. The two-storey 'connection' above, across 19, 21 and 23 Glenleith Avenue, is about 10 to 11 metres wide. Likewise the east-west axis of this two-storey wing is located almost central to the development, helping to reduce the visibility of this two-storey aspect of the proposal from either Glenleith Avenue or the rear lane. The height of the second storeys north-south axis has been kept generally lower than the other two storey elements.

The applicant has been able to retain the sense of individuality for each of the 3 'dwellings'. This applies not only to the front but also to the rear north elevation facing the rear lane. Both front and rear facades relate better to the era of the buildings in the heritage overlay area utilizing Edwardian, Californian Bungalow and Federation styles.

Suggest that the existing Colorbond®roof cladding be changed to galvanized finish cladding. Colorbond® is not a traditional material finish for a heritage building or area. The terra-cotta-roofing tiles on two of the buildings should be different in colour and profile. This will help emphasis the individuality of the two buildings.

The front fence is of three different styles and this helps retain the sense of individuality of the three addresses.

It is understood that the proposal is driven by the need/want to provide 60 nursing home beds on this site, close to where family and friends are. Given the community need for this 60-bed nursing home facility, with its modern day requirements, the applicant has endeavoured to comply with the Heritage Overlay controls

37. The existing dwelling at 19 Glenleith Avenue has no heritage significance under the provisions of the heritage study which lead to the creation of the heritage overlay effecting this area. Ms Huddle argued that the building should be regarded as having greater heritage significance, because it had come to her attention during the course of preparation for this application for review that some aspects of the interior of the dwelling were intact and in her view of value. Number 19 Glenleith Avenue falls within the heritage overlay area, and the significance of the heritage place is a relevant consideration, and it is possible to argue that some aspect of the heritage place is of greater significance than was first recognized, although issues of justice and fairness would come into a consideration. However, I don't have to turn my mind to this issue in this case, because in the context of a heritage overlay area in which there is no control over the alteration of the interior of the dwelling, and having regard to the characteristics identified in the Statement of Significance applying to this area, it is not possible to conclude that the existence of some of the original interior decoration of the house confers heritage significance on this building, or that its demolition will have any effect on the significance of the place.

38. During the course of the hearing numerous issues were raised which are in some senses separate to the principal issues I have dealt with above, I will deal with the most relevant of these issues below:

s It was suggested that in the current regulatory framework, a nursing home would require bed numbers in the order of 60 beds in order to be viable. It was argued that the Tribunal could not be sure that the applicant would not at some future date come back to the Responsible Authority and seek to have a further expansion of the facility approved, and that the current proposal should be rejected because of this risk. The simple answer to this argument is that the Tribunal must consider the proposal which is before it, and that as for this application, any future proposal will be the subject of a permit application which can be assessed on its merits at that time. However, it is interesting to note from the figures provided by Mr Whitehead in respect of nursing homes in a selection of inner Geelong postcodes, when approved this nursing home will be one of only 8 nursing homes with 60 beds or more out of a total 27 nursing homes in the relevant postcodes. This suggests to me that the risk alluded to in these submissions is not particularly high.

s An aspect of the Federal Government's policy in respect of aging, is the policy of aging in place. That is the policy that a person enters a facility at a time when their needs are low care, and can stay in the same facility in the event that their needs become high care. The policy seeks to limit the disruption in the life of a person at a stage in their life when they would find any disruption particularly distressing. There was some discussion about the implications of the changing mix of low care and high care residents over time, while I agree that this will be an issue for the management of the facility, I do not agree that it has any consequences which would be relevant to the decision of the Tribunal in this matter. Moreover, any change in the mix of "Low Care" and High Care" beds overtime should respond to the circumstances of residents in accordance with Federal regulation, and does not require control by permit conditions.

s The various open space areas available to residents of the nursing home were criticized on the basis of their size, the degree to which they are overshadowed, and the relationship to various activities within the proposed nursing home itself. In my view having regard to the needs and likely mobility of the future residents of this nursing home, these concerns are significantly overstated. There was no suggestion that the facility did not conform to the standards with which it must comply before obtaining the relevant Federal funding.

s There was considerable argument about the adequacy of car parking, the reliance of basement car parking, facilities for hearses and ambulances, and the safety consequences of vehicles coming to and from the site. There was no evidence that there is a particular problem in this regard associated with the existing nursing home. The facilities proposed for the new nursing home are a considerable improvement on those which presently exist. The Responsible Authority's own traffic engineer had no objection to the present proposal, and Mr Robertson's expert evidence supports the view of the Responsible Authority's traffic engineer. It is true that this nursing home would be better located on a quieter street without the complexity of the nearby overpass and intersection, but on the basis of the evidence before me there is no reason to believe the risk associated with movement of vehicles to and from the site are greater than the risks that are ordinarily considered acceptable in an urban environment. In my view the design will enable the operators of the nursing home to manage the movement of goods and people to and from the land in an orderly way.

s Many of those opposed to this particular project placed considerable emphasis on fire safety issues. The reality is that buildings such as this are subject to a very stringent regulatory regime in respect of fire safety, this proposed building will have to comply with that regulatory regime, the preliminary indication is that it does comply, and there is no basis for the Tribunal imposing a solution different to that established by this regulatory framework in the context of this application.

s The amending proposal includes a basement car park on number 19 Glenleith Avenue, the basement car park is set away from property boundaries. It was argued that the Tribunal should investigate the constructional implications of the proposed basement notwithstanding the regulatory regime established by building controls. The reality was that the evidence before the Tribunal in respect of the geology and hydrology of the site was such that there is no basis for a conclusion that there are any special circumstances in this case which warrant the Tribunal doing anything other than relying on the building control processes. There will be a requirement to exercise some care in the management of construction traffic, but again this is a matter which municipal councils deal with on a regular basis in respect of construction within their municipal area. There was no evidence to support the contention that construction traffic would be unmanageable in this situation.

s There was considerable debate about the adequacy of the lane way for servicing the proposed nursing home. It is true that only vehicles of a limited size can negotiate the lane way, in my view the only implication of this is that larger vehicles will be forced to make deliveries to and from the nursing home from Glenleith Avenue. The nursing home has already taken action to select suppliers that utilize smaller delivery vehicles. The delivery needs of the nursing home is such that the volume of traffic using the lane way associated with the nursing home will be quite low, and will have no significant amenity consequences.

39. The redevelopment of the Glenburn Nursing Home as proposed, will have some impact on the existing neighbourhood character, will have some impact on the amenity of nearby neighbours, and will have some impact on the character of the heritage place, albeit a minor impact. Had the proposed development been for a group of conventional dwellings, these impacts may have been sufficient to warrant a consideration of further design changes to mitigate any adverse impacts. However, it is my view that these impacts are not so unreasonable that they in any sense outweigh the positive attributes of the proposal which will contribute to the satisfaction of an important social need in the Geelong community. The Tribunal will therefore direct the grant of a permit subject to conditions which have been prepared having regard to the various submissions the Tribunal has received in respect of conditions.

Extract from Application for Review 1998/12268 Lineus May Nominees Pty Ltd v Stonnington CC & Ors:-

Some debate took place at the hearing on the question of whether or not "need" was a relevant issue in this appeal.

In Australian Retirement Communities Pty Ltd v Eltham Shire Council & Cuthbertson (1988 1 AATR 305), the issue of need in relation to facilities of this kind was discussed at some length. The Tribunal had this to say:-

"Moreover other social considerations, where not explicitly recognised within the framework of the Planning Scheme, have long been taken into account under the guise of need. A study of appellate decisions since the inauguration of the Planning Appeals Board in 1981 reveals that the issue of need has been generally categorised (in ascending order of weight) as follows:

(a) Cases involving services and facilities for groups which may be socially disadvantaged (child care, the elderly) but which are supplied primarily through the competitive market system. A degree of weight has been accorded to the question of need in such cases. (See for example Australian Retirement Communities Pty. Ltd. v City of Brighton 1 PABR 217).

(b) Cases involving scarce services or facilities for groups which are clearly socially disadvantaged (public housing, drug abuse victims) where the facility is supplied by government or welfare agencies. (See for example Ministry of Housing v City of Doncaster and Templestowe 2 PABR 291).

(c) Cases involving services or facilities directed towards the saving of human life. (See for example Alfred Hospital v City of Melbourne and Others 4 PABR 334).

These three categories can be contrasted with those situations which concern products freely supplied through the competitive market system. In such cases, `need is a relevant consideration but not an essential requirement'. (See for example The Shell Co. Ltd. v City of Frankston and Amoco Ltd. 1 PABR 107).

One important principle which can be derived from the above analysis is that the question of scarcity of a particular service or facility plays an important part in determining the weight to be accorded to its social implications. Thus, the boundaries of the above categories should not be considered as inflexible. For example, to use the issues posed in the instant case, a future reduction in the availability of beds for the elderly might well result in a situation where grave scarcity elevates the issue into a higher category."

It is in this regard that the evidence of Mr Burgess is most important. The Department of Health & Family Services has derived a formula for the requisite number of beds on an area and a municipal basis. These figures were provided to the Tribunal. There is a significant shortfall in the number of beds available for the frail aged in the Prahran area. This facility will serve to curtail that shortfall and has gained the approval of the Department.

The Tribunal holds firmly to the view that the planning system must be sufficiently flexible to ensure that elderly persons who have resided in particular areas of Melbourne are encouraged to spend their twilight years in comfort and dignity. It is important, the Tribunal believes, that the elderly are located in the same area in which they have spent much of their lives, close to family and friends. They should not be uprooted and forced to relocate in locations remote from familiar surroundings.

Need is a relevant factor in this case. However, the issue of need is not so much relevant to the use (or, prima facie, existing use rights already exist) but rather to the issue of the design of the building and its size, for these provide the crux of the issues in this case.

Having said that need is relevant, it would be a fruitless exercise to hold that the building should be designed in such a manner as to render its use for the purpose of aged care less effective.

The fact of the matter is that the Good Design Guide is not of much assistance when considering an application for an institutional home, the relevant Planning Scheme definition in the present case. The needs of a person residing in nursing home accommodation are quite different to the needs of someone residing in a conventional unit. Consequently, the appeal raises design issues which are quite different to those issues which arise in applications for medium density housing.

Two examples serve to illustrate this point. Mr Cook was critical of the fact that there was little private open space and that it was poorly oriented to receive sunlight. Mr Burgess however pointed out that patients lacked mobility, were under constant supervision and that the permit operators had a responsibility to protect older people, highly susceptible to ultra violet radiation, from the perils of direct sunlight.

Similarly, it was suggested that the area of private open space close to Dandenong Road would be affected by noise. Again Mr Burgess pointed to the desire of the frail aged to be close to activity and movement.

The evidence of Burgess and Mrs Arnohold was to the effect that the balconies would be used rarely because of weather factors, and due also to the need for residents to have continual nursing supervision. Fears expressed regarding loss of privacy are thus unlikely to come to fruition and the Tribunal agrees with the officer's report wherein it is stated:-

"Concern has also been raised regarding the potential for overlooking from the building. Balconies to the development have been screened to a height of 1.3 metres with 0.5 metre wide planter boxes and seats in front of them to prevent overlooking. It is considered that these measures are reasonable given that the building is to be occupied largely by elderly, possibly bed ridden people. Sight lines drawn show that even when standing, no unreasonable overlooking should occur."

In short, factors which would appear to be a liability in a conventional residential development may well be an asset in an aged care facility. As earlier noted, the plans in question have received Commonwealth approval and, the Tribunal was told, the building as planned has been specifically approved by both Commonwealth and State agencies as part of that process.

The internal design of facilities such as this is a very specialised matter and, in the Tribunal's view, planners should be hesitant to interfere unless there is a very sound town planning reason for so doing.

It is in the light of all these matters that the Tribunal has considered the planning merits of this case.

Environment Act 1987

Cambrai Pty Ltd v Greater Geelong CC & Ors [2002] VCAT 1048

At a glance

Court

Decision date

Source

Judgment (161 paragraphs)

Cambrai Pty Ltd v Greater Geelong CC & Ors [2002] VCAT 1048 (23 September 2002)

Parties

Legislation Cited (1)