The decision of the responsible authority is set aside. A permit is granted and directed to be issued in relation to planning permit application No. 401/00 for the land at 316 Glenferrie Road, Malvern.

The construction of buildings and works, the use of the land for the purpose of a place of worship and a reduction in the requirement for on-site car parking, all in accordance with the endorsed plans

1. Before the building extensions commence, 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 three copies must be provided. The plans must be generally in accordance with the plans (Reference Nos. 1398/BB Revision C and 1398/AA Revision B dated 20.6.01) tendered as Exhibit A1 in Application for Review No. 2000/096508 but modified to show:

1.1 Any acoustic treatments recommended in the report of the acoustic engineer required by Condition No. 9 of this permit.

1.2 The acoustic fence along the southern boundary of the land extended to a point in line with the south-eastern corner of the synagogue building.

2. The use or development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the written consent of the Responsible Authority.

3. Without the prior written consent of the Responsible Authority, the use hereby permitted shall operate only between the hours of 7.00 a.m. to 11.30 p.m. seven days a week with no more than 150 persons in attendance after 9.00 p.m. other than during the celebration of Simchat Torah and Yom Kippur.

4. Except as provided for in Condition No. 3 above the number of people to be accommodated on the premises at any one time must not exceed:

4.2 450 on a maximum of 15 days on each calendar year; and

4.3 200 on all other days other than for funeral ceremonies.

5. A detailed register of all events where the maximum capacity is to exceed 300 persons must be maintained by the synagogue. The register must include details of the date and nature of the event. The register must be made available to the Responsible Authority for inspection within 14 days of any written request to do so.

6. At the commencement of each calendar year the permit holder must leaflet drop residents of Embling Road and Haverbrack Avenue advising of the dates of High Holy days in that year when demands for kerb side parking may increase. Similar notice of other events with attendances likely to exceed 300 people must be given at least three weeks prior to the event.

7. The premises must not be used for receptions such as those associated with weddings, barmitzvahs or batmitzvahs.

8. The external deck area and lawn to the east of the building must not be used after 9.00 p.m. on any day by more than 10 persons, other than during the celebration of Simchat Torah.

9. Prior to the commencement of the permitted extensions a report from a qualified acoustic engineer must be submitted to the Responsible Authority. Such report must analyse all potential noise sources and provide recommendations as to any acoustic treatments which are necessary to ensure compliance with the relevant EPA noise policy.

10. All doors and windows must be kept closed during services to prevent noise transfer to adjoining properties to the satisfaction of the Responsible Authority.

11. Prior to the occupation of the extended floor area the acoustic engineer must provide written advice to the Responsible Authority that all acoustic treatments recommended by the report required by Condition 9 have been installed.

12. All external lighting, including existing lighting on the rear deck must be baffled, to the satisfaction of the Responsible Authority to prevent glare and light spill to adjacent properties.

13. Before the occupation of the extended floor area, the areas set aside for parking and access lanes as shown on the endorsed plans must be:

13.1 Constructed to the satisfaction of the Responsible Authority.

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

13.3 Surfaced with an all weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.

13.4 Drained and maintained to the satisfaction of the Responsible Authority.

13.5 Line marked to indicate each of the 19 spaces as well as access lanes, to the satisfaction of the Responsible Authority.

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

15. Before the use of the additional floor area authorised by this permit commences, the Section 173 agreement entered into pursuant to Condition 2 of Permit No. 1221/96 issued on 26 June 1997 must be amended, or a new agreement entered into, which refers to this permit and which requires the provision of 30 car spaces of which 11 must be provided at 353 Glenferrie Road at any time that the number of persons in attendance on the subject land exceeds 65 persons.

16. The car parking areas, including at 353 Glenferrie Road, shall not be restricted in any way and no charges or fees may be imposed, fixed or collected for the use of any of the spaces, except the charges (if any) and fees (if any) from time to time approved in writing by the Responsible Authority.

17. A sign advising the availability of the car parking at 353 Glenferrie Road, Malvern shall at all times be prominently displayed on the land to the satisfaction of the Responsible Authority.

18. The garden areas shall be landscaped with trees and shrubs and shall be used for no other purpose. The landscaping shall be established and maintained in a proper and tidy condition, to the satisfaction of the Responsible Authority.

19. The buildings or works hereby occupied or employed, the processes carried on, the materials and machinery used and the transportation of materials, goods and commodities to and from the premises shall not cause injury to or prejudicially affect the amenity of the locality by reasons of appearance or the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or the presence of vermin or otherwise, to the satisfaction of the Responsible Authority.

20. The use hereby permitted shall at all times be conducted to the satisfaction of the Responsible Authority in a manner which ensures that the residential amenity of nearby residential properties is not detrimentally affected.

21. The emission of noise, including noise from mechanical plant and equipment or any other emission to the environment derived from activities on the site shall conform to standards contained in the relevant State Environment Protection Policy or Policies, to the satisfaction of the Responsible Authority.

22. The provision of music and entertainment on the premises shall be limited to background music or entertainment by performers using non-amplified instruments unless the consent in writing of the Responsible Authority is obtained for other entertainment.

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

23.1 The development and use is/are not started within two years of the date of this permit.

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

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

For the applicant for review: Mr Robert Osborn QC with Mr Mark Naughton, solicitor with Minter Ellison. Messrs Osborn and Naughton called the following persons to give expert evidence; Mr Andrew Rodda, town planner, Mr Stephen Hunt, traffic engineer and Mr Michael Barlow, town planner. The following persons associated with Chabad House were also called as witnesses; Mr Roy Tashi, Mr Eric Kornhauser and Mr Phillip Teperman.

For the responsible authority: Mr Christopher Townsend of counsel, instructed by Maddock Lonie and Chisholm solicitors.

For the respondent objectors: Mr Martin Fong, Mrs Jenny Blencowe, Mrs Margaret Payne, Ms Vicki Vann, Mr John Russell, Mrs Beverley Lines and Mr Martin Clark, appeared in person. Ms Barbara Wilson appeared on behalf of G. & E. Pollock and Mrs Payne also appeared for C.A. Cottee

1. The Tribunal's reasons for its decision were given orally at 9.30 a.m. on Friday 6 July 2001. A transcript of those oral reasons follows.

* use this Residential 1 Zoned land, abutting a Category 1 Road Zone, for a place of worship, subject to different restrictions from those previously applying;

* to construct alterations and additions to accommodate an expanded number of congregants; and

* to reduce the Scheme's requirements for car parking.

3. Mr Osborn and Mr Townsend referred to this as an omnibus permit. It will stand on its own without reliance on previous approvals or on existing use rights. The fact that a synagogue already occupies this site is however a relevant consideration. The real issue here is whether the synagogue should be permitted to more comprehensively serve its community.

4. The Act and the Planning Scheme set out matters which I must have regard to when deciding whether or not to grant a permit and what, if any conditions to include. These matters include the State and Local Planning Policy Framework, Section 60 of the Act - which refers to giving consideration, if the circumstances appear to so require, to any significant social effects of the use - the purpose of the zone, the orderly planning of the area and any effect on the amenity of the area.

5. At Clause 65 the Scheme states that because a permit may be granted does not imply that a permit should or will be granted. The decision-maker - namely the Responsible Authority and this Tribunal on review - must decide whether the proposal will produce "acceptable outcomes" in terms of the Scheme's decision guidelines.

6. The facts as to the relevant decision guidelines - the State and local planning policies applicable to this application and the purpose of the zone were not in dispute, so I need not repeat them here - I do refer to some later.

7. Essentially this proceeding asks the question whether the possible impact that the synagogue may have on the amenity of the surrounding residential area - and in particular the "amenity" of having an abundance of kerbside parking available in these streets - outweighs the community benefit of an existing synagogue having sufficient capacity to accommodate its members on days of major celebration - barmitzvahs, batmitzvahs, weddings and High Holy days.

8. At issue also was the extent to which activity should or could be controlled via permit conditions, especially in relation to the more regular attendance levels - the day to day religious and quasi educational activities.

9. The scale and appearance of the building as altered was also at issue. So too was the question of whether noise associated with the use - from mechanical equipment, especially air-conditioning and from people outside - might impact "unacceptably" on the enjoyment or amenity of adjacent residential properties.

10. Before dealing with these questions it is appropriate to say something about the location of the subject site. I think it needs to be acknowledged that the location of this place of worship, close to the junction of two arterial roads and abutting a small activity centre, is entirely consistent with the Council's Planning Policy Framework. The Residential 1 Zone is not a residential only zone. The purposes of the zone acknowledges that community, recreational, religious and educational uses, which serve "local community needs", may be allowed within residential areas. There is a lot of sense in this. Indeed I agree with Mr Osborn that it is open to find that accessibility to such facilities can add to the amenity - to the pleasant enjoyment - of a residential area. Perhaps this is particularly so in relation to place of worship for an orthodox Jewish community given that proximity can better ensure observance of an important religious law.

11. The Council's Strategic Framework Plan and the Policy for residential areas, character and amenity, recognises the symbiosis or orderly planning benefits of locating local community facilities within residential areas. It provides for such facilities to locate on main roads, such as Glenferrie Road and adjacent to activity centres. Such locations are accessible and easily identifiable. They are also places where negative impacts such as traffic noise and general activity can be better accommodated than, for example, in smaller scale, local residential streets.

12. By locating community facilities in such locations the question of off-street parking not impacting on residential streets is usually addressed by the simple expedient of requiring the provision of on-site parking. As observed by Mr Osborn however, an orthodox synagogue represents something of a conundrum in this respect. Off-street parking may cater for day to day - that is weekday religious observance and administration - but on the principal day of worship, namely the Sabbath which extends from Friday evening to Saturday evening, a car park is not a facility which members of the congregation are in a position to use. This is not to say however that all members are or are in a position to be observant of the "no driving on the Sabbath" rule. Many attempt to subtly evade the rule by "parking around the corner". The result is that, notwithstanding the main road location and the proximity to an activity centre, the local streets end up bearing some of the brunt.

13. Synagogues appear therefore to have different qualities to other community facilities. The answer to the conundrum cannot be to preclude synagogues from being located in or adjacent to residential areas as clearly, given the no driving rule, this would be self-defeating. Synagogues have to be adjacent to residential areas. It appears from the Responsible Authority and respondent objectors' submissions that their answer is to keep such facilities as small as possible so that impacts are small in scale also. The respondent objectors submitted for example that no expansion should be allowed beyond that already permitted, namely no more than 80 on the Sabbath and 120 to 180 persons on High Holy days. This is despite the fact that the local Jewish community, within reasonable walking distance of Chabat House, comprises substantially more than these numbers

14. I have not been persuaded that to hold numbers to the limits advocated by the respondents is a fair or reasonable planning outcome. The social and economic effects of such a finding would be significant for the local Jewish community - it would mean that those within walking distance would be restricted in their attendances. It would also prevent the celebration of festive days with the whole local community in attendance. This social impact must be balanced against the policy guidance of not impacting on the amenity of residential areas by, among other things, reducing the availability of kerbside parking.

15. In order to determine what might be an appropriate balance it is necessary to look at the likely impacts of this synagogue accommodating greater numbers of persons. I was persuaded, based on Mr Hunt's parking surveys and the evidence of Messrs Tashi, Kornhauser and Teperman, that for an "average" Sabbath - catering to the core community which may be said to live within a "reasonable" walking distance - that the parking generation rate due to non-observance is significantly less than the Planning Scheme's suggested ratio of 0.3 cars per person. Accordingly, for a normal to above normal attendance of say between 100 and 150 persons a kerbside parking demand in the order of between 17 and 25 spaces, during the main Saturday service (on non-barmitzvah days), can be anticipated.

16. Does the impact of this kerbside parking so greatly affect the amenity and safety of Embling Road and other nearby residential streets such as Haverbrack Avenue, to warrant a refusal of permit? I do not find so. Indeed the evidence of Mr Hunt confirms that for normal Sabbath days the increase in parking when spread between adjacent streets is virtually imperceptible.

17. The permit applicant seeks the flexibility to accommodate more than just the normal Sabbath attendances. In particular there are the boys barmitzvahs - held usually during a Sabbath service and where persons other than the core community may be invited. These celebrations will invariably include persons not bound to observe the no driving rule. I was advised that attendances may reach 200 persons on such occasions. The number of barmitzvahs depends on how many boys in the local community reach the age of 13 in that year. At the present time about eight to 10 barmitzvahs are celebrated at Chabad House per year. A worse case scenario of 300 attendees, with no parking on site or opposite at Chabad Creche, and adopting the maximum ratio of 0.3 spaces per person gives 90 cars on say 10 Saturdays per year between the hours of 10.00 a.m. and 12.15 p.m. I accept that this level of kerbside parking, although technically likely to be spread throughout adjacent streets - but perhaps with some greater concentration in Embling Road, would be noticeable, albeit for a relatively short period.

18. For girls batmitzvahs - held usually on a Sunday and for more than one girl at a time - attendances of up to 275 persons are anticipated. Such celebrations occur between 10.30 a.m. and 12.30 p.m. On a Sunday the law against driving is not in force so the parking demand can be expected to increase. At the same time however the 30 car spaces provided on the land and opposite at the creche are available for use. At the Scheme's ratio of 0.3 spaces per person and taking into account the 30 on-site spaces, a kerbside spillover in the order of 50 spaces for 275 persons or 60 for 300 persons can be anticipated. While Embling Road provides an attractive and shady option, the availability of parking in Glenferrie Road at this time is also substantial. I am not persuaded that such events - which occur on less than a handful of Sundays in June, after the girls graduate, constitutes an unreasonable impost on the parking amenity of this neighbourhood.

19. Finally there are the days when attendances could reach beyond 300. The architect's estimated capacity of this building, as extended, is for 450 people. The permit applicant seeks approval for 15 such events in a year of which 12 are the High Holy days which may occur on any day of the week but which also invoke the no driving rule. As with Christmas and Easter in the Christian calendar, these festivals will attract the regular as well as less regular attendees. Indeed demand is so high for these days that seating must be pre-purchased. By mapping the residential location of such seat purchasing congregants, a reasonable idea of the catchment of this synagogue can be established. Mr Barlow's map indicates that 80% of the approximately the 210 households who purchase seats live within 3km of Chabad House. I accept that this reasonably confirms the fact that the facility serves a local community need. I accept it can be anticipated also that walking to the synagogue on these highest of holy days will be the preferred expression of faith by most members of the local Chabad community. An up to 3km walk, being all that 80% of households would be required to achieve, could not be described as onerous on these few days of the year.

20. If 20%, ie. those beyond 3km, or even 30% of households drove on these days the demand for "around the corner" parking would not be substantial - say 40 to 60 cars. These days will often be mid-week when, in a visual sense, kerbside parking is already well utilised and yet the surveys of Mr Hunt suggest that there are still sufficient spaces, in a supply sense. I am not persuaded that the likely generation of on-street parking demand for these 12 days and during the limited period within which most of the services are conducted is unacceptable.

21. This leaves three other days when the permit applicant seeks to accommodate between 300 and 450 persons. Depending on the day, the no-driving rule may or may not apply. If it does not apply then parking over and above that able to be accommodated on-site or opposite will spill onto surrounding streets. Applying the ratio of 0.3 spaces per person and extracting the 30 on-site spaces, a maximum kerbside demand of 106 can be anticipated. I accept that this would be a very noticeable addition to local street parking. I find however that, as with Chadstone car park on the lead up to Christmas or a nursing home or hospital on Mother's Day, it would be unreasonable to rule out such peak days given their relative rarity and the fact that they obviously fulfil an important local community function.

22. It was suggested by Mr Hunt and agreed to by Mr Teperman, a resident of Embling Road, and member of the Chabad House congregation, that a simple and quite equitable solution to addressing many of the Embling Road and possibly Haverbrack Avenue concerns over loss of amenity due to increased kerbside parking, would be to institute resident parking restrictions. This might be considered for one side of Embling Road either at all times - so combating the existing commuter and trader demand - or for particular times, for example Saturday mornings. The respondent objectors contend however that this would also have a negative impact on their amenity. They like their street as it is.

23. This may be so but it is, I find, an unreasonable demand by residents of a street located adjacent to two main roads and an activity centre as well as a lawfully established synagogue. In reaching this finding I have also accepted Mr Osborn's submission that kerbside parking is a public resource and not something owned per se by abutting residents, although obviously they are the greatest beneficiaries.

24. To conclude on this issue, the Responsible Authority and this Tribunal on review must consider whether a proposal will produce "acceptable outcomes" in terms of the decision guidelines. I am satisfied that an orderly planning outcome in this case, which balances the desirability of kerbside parking for residents with the relatively short-term demands of the synagogue is an acceptable outcome. This is particularly the case given the relatively easy option of instituting parking restrictions. Parking restrictions would also address residents' concerns about traffic safety. Although I accept the expert evidence of Mr Hunt, which was to the effect that parking congestion would not result in an unacceptable impact on traffic safety, I nevertheless agree that a benefit of having parking restrictions on one side would be to make reversing out of resident's drives an easier option.

25. The final two issues for determination concern neighbourhood character and noise generation.

26. On the subject of noise I find that with the imposition of conditions requiring compliance with the relevant State Environment Protection Policies and the commissioning of a report from a qualified acoustic engineer, that existing concerns over mechanical noise emissions can be properly addressed. My inspection of the premises also confirmed the use of sound proof walls and doors within the synagogue and I am confident, given the use of artificial ventilation, that there is every prospect of noise from activities within the building not intruding upon surrounding residential properties.

27. At the end of a service the Kiddush Room and adjacent outdoor deck are clearly a facility that is important to congregants. Persons at this time may well be outside, meaning that conversation and other people generated noises may be audible from outside at adjoining residential properties. I have great difficulties in finding that this noise, given the fact that it is of people conversing and the relatively limited period within which it occurs, could in any way be regarded as a significant detriment to the amenity of abutting properties at the time of day that it is most likely to occur. In an abundance of caution however I think it appropriate, as suggested by the Responsible Authority, to place a limitation on outdoor deck numbers after the hour of 9.00 p.m. in order that the peace of the abutting neighbourhood is not impacted upon. Likewise I accept that a limit on the number of persons within the building after 9.00 p.m. other than on particular occasions such as Simchat Torah and Yom Kippur will ensure that levels of activity in surrounding streets, as people return home, is not excessive. The evidence suggested that attendances of this magnitude after 9.00pm would be unlikely, accordingly it is only in an abundance of caution that I include such conditions.

28. The State Planning Policy at Clause 19.03 refers to development achieving architectural and urban design outcomes that "contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties".

29. It was suggested by the Responsible Authority and respondent objectors that the two storey additions - which include a row of clerestory windows above the proposed multi-purpose and expanded ladies' gallery area - represented an excessive amount of visual bulk. They recommended that the first floor be set further back than the existing ground level, south facing wall.

30. At the commencement of the hearing Mr Osborn sought and was granted leave for the permit application to be amended by substituting revised plans for those which had originally accompanied the application. Later, these were further amended to ensure that the restrictive covenant affecting the land is not violated. These plans substantially reduce the visual impacts of the clerestory windows - making the clerestory more consistent with the general architectural theme of the building. It would be fair to say that with this change the contest in relation to the built form scale of the building reduced considerably. Following my inspection of the premises I am satisfied that the new addition will be in no way out of character with the surrounding area which includes some quite substantial two storey dwellings at the entrance to Embling Road. In fact in many ways the new additions will complete this building. They will eliminate the existing exposure of mechanical equipment which I accept gives the building a somewhat industrial appearance. In general terms I find the whole complex sits comfortably within the Glenferrie Road streetscape. Given also the substantial setbacks from the rear - protected as they are by the covenant - I am further of the view that this development will have minimal effect on the built form character of the neighbourhood further to the east, in Embling Road and Malvern Road.

31. To conclude I find that the potential disbenefits which an expansion of this existing place of worship will cause for the local residential community - particularly given the options to address those disbenefits, such as through the institution of resident parking - are not so significant as to warrant a refusal of permit given that the facility will at the same time provide a significant social benefit for many other members of the local community. While it might be open to control days and hours of operation and attendance levels in more minute detail than is proposed in this determination I am of the view that to do so would be to unacceptably fetter the flexibility of this place of worship to cater for changing needs. By setting attendance levels at 200, 300 and 450 persons and hours of operation from 7.00 a.m. to 11.30 p.m., with limits after 9.00pm is not to suggest that the use might eventually operate to these levels at all times. It does however provide a framework - one that can be operated within but which at the same time sets some outer limits. I find on balance that this is a commonsense outcome. The evidence clearly suggested -as does common experience in relation to places of worship - that it is highly unlikely that the maximum levels of attendance suggested by the conditions would ever be achieved on a daily basis. However, by setting a base figure of 200 and applying the 0.3 ratio, the spill over after use of the on site and opposite car parks is 30 spaces. On any view this can be comfortably accommodated within the area given the fact that the site fronts Glenferrie Road.