Coles Property Group Developments Limited v Boroondara CC

Coles Property Group Developments Limited v Boroondara CC - [2014] VCAT 342 - VCAT 2014 case summary — Zoe

[24]

A permit was granted at the direction of the Tribunal[5] for a four storey mixed use development at 126-138 Union Road and 63 Sunbury Crescent, Surrey Hills. An application has been lodged with the Tribunal to amend the permit to allow construction of a single level supermarket with a mezzanine office above.
Boroondara City Council (the 'Council') support the merits of the proposal, subject to some amendments, but oppose the process of amendment to the permit arguing instead a new permit should be applied for given the extent and significance of changes sought.
A number of nearby residents oppose the proposal for reasons relating to negative impacts on amenity arising from delivery arrangements, noise emissions, overflow parking, trolley management, increased traffic and extensive hours of operation.
The applicant submits that the supermarket proposal will be of considerable benefit to the local shopping centre, is consistent with State and local policy and will present a built form responsive to the setting. It is the applicant's submission that it is appropriate for the Tribunal to exercise its broad discretion under section 87A of the Planning and Environment Act 1987 (the 'Act') to amend the permit as sought.
Despite our finding on this threshold issue that we lack power under section 87A to amend the permit in the manner sought, we provide comment on the merits of the proposal since we anticipate the proposal may become the subject of a new application for permit and our findings may be helpful. In considering the merits we have had regard to the submissions and evidence, the statements of grounds, the provisions of the Boroondara Planning Scheme (the 'Scheme') and the information gained on our site visit. We consider the key issues to address are as follows:
- Strategic support for the proposal
- Acceptability of built form
- Impact on amenity
- Adequacy of car parking and traffic issues
We have found that a supermarket on the review site is supported by State and local policy, amenity impacts are acceptable or can be addressed through permit conditions, car parking provision is appropriate and additional traffic generated by the proposal can be absorbed in nearby streets. We find the built form response acceptable in an activity centre setting but have concerns about the response to heritage values in relation to 138 Union Road.

[46]

For its part, the applicant says that the question of whether an amendment is transformative or non-transformative is not a question of jurisdictional "fact". This is because whether an amendment is transformative or non-transformative is not a matter of fact.
The applicant referred to the words Brooking J in Addicoat that the question is "plainly a matter of degree, and indeed it is almost one of impression". Consistent with this approach, the applicant contends that the question should at the very least be characterised as a question of mixed fact and law. Whilst it is a question that involves a factual component, it is not limited to an analysis of the facts alone.
It could be contrasted, by way of relevant example in the context of section 87A, with the question of whether the instrument that is sought to be amended is in fact a planning permit. This, in the applicant's submission, could properly be considered a jurisdictional fact in the context of section 87A - the Tribunal's power is enlivened only in factual circumstances where the instrument that is to be amended is a planning permit.
For this reason the applicant submits that, even if the notion of transformation is to limit the power of the Tribunal under section 87A in any way, it would do so not as a matter of jurisdictional fact but instead as some other statutory precondition to the exercise of that power.
However, regardless of whether the characterisation of an amendment as transformative or not constitutes a jurisdictional "fact", the applicant contends that nothing in the word "amend" as it appears in section 87A should be taken to curtail the power of the Tribunal to make amendments that are transformative in character in the sense contemplated by the Supreme Court in Addicoat or by the Tribunal in Bestway.
The applicant further contends that nothing in the terms of section 87A, or any other provision of the Act, evidences an intention on the part of the legislature that the word "amend" be read down in the manner contemplated. In support of this argument, the applicant noted:
- The broad definition of the term "amendment" in the Act to include "addition, deletion or substitution".
- Pursuant to section 87A, the Tribunal is expressly entitled to exercise its power in any circumstances that it considers "appropriate".
- By providing comprehensively for third party notification and participation in the decision making process, the scope for unfair outcomes to occur through the amendment process - of the type contemplated by the Supreme Court in Addicoat - is addressed.
- Section 90A(i) requires that the application be assessed "as though it were an application for review", which necessarily involves a wide ranging assessment focussing on the planning merits of the proposal.
- The term "amendment" is clearly intended to encompass a broad range of alterations in other parts of the Act (for instance, section 4B concerning the "amendment of planning schemes", which could not possibly be limited in scope in the manner contemplated in this instance; or section 50(2)(a) of the Act which clearly links the concept of amendment to a range of substantial alterations).
The applicant submitted that permissible amendments to planning permits under section 87A may be trivial or they may be transformative. At all times the Tribunal has the discretion to refuse to make an amendment if it considers it inappropriate. The scope of the amendment proposed may be a relevant factor to be considered by the Tribunal in determining whether it is appropriate to exercise its power to amend a planning permit. However, it should not be considered a limit on the Tribunal's power.

[58]

When interpreting any power conferred by statute, regard must be had to the words of the statute itself. The power conferred on the Tribunal by section 87A is the power to cancel or amend a permit. It is not a power to transform a permit so that what results is something completely different.
The word "amend" in section 87A must be interpreted in the context in which it is used: i.e. to amend a permit. We do not consider that we should interpret the power to amend a permit by reference to other parts of the Act which deal with preparation of an amendment to the Victoria Planning Provisions (section 4B) or the amendment of planning schemes. The extent of change that may occur in the case of such amendments is different to the extent of change that may occur when a specific permit or application for permit is amended.
We do not consider that the definition of "amendment" in the Act, which includes addition, deletion or substitution, changes our view. An amendment may occur through or by way of addition, deletion or substitution, but these words describe how an amendment may occur not the extent of the change that may occur.
To understand the extent of change that may occur, it is necessary to have regard to the context in which the word is used and the meaning of the word in that context. In this context, we consider there is a well established distinction between the concept of amendment and transformation.
This concept of transformation compared to amendment was articulated in Addicoat v Fox (No 2) and has been widely applied in planning decision making ever since. Bestway is an illustration. So too is Becton, where Morris J observed, "the power to approve an amendment to plans is a broad power; but it is not a power which would extend to the approval of plans which transformed the development shown on the plans which had been approved under the permit."[24]
We do not consider the fact that Addicoat was dealing with an amendment to a permit application means that the principle enunciated is any less applicable to an application to amend a permit.
We do not agree with the applicant's contention that the scope for third party participation is relevant to the issue of whether there is a fundamental distinction between amendment and transformation. The opportunities for participation in the various processes provided for under the Act to amend permits, as discussed in Bestway, support the principle that the ambit of change that may be made to a permit under any of these provisions may be quite substantial and may include changes to any of the things allowed by the permit, its conditions or even the land description. However, the power conferred remains a power to amend the permit (or cancel it). It is not a power to transform it in the sense describe by Brooking J in Addicoat.
It is relevant to note that in Addicoat, Brooking J was clearly referring to the Tribunal's power, as distinct from discretion, to grant a permit in respect of a use or development which differs from the use or development the subject of the application for a permit so radically that the decision cannot be supported as an exercise of the power to direct that the permit applied for be issued subject to conditions. He held that the Tribunal did not have such power, either independently or by virtue of various provisions then in the Town and Country Planning Act 1961.
We do not consider it is necessary to read down what Brooking J says about the Tribunal's powers because the statutory framework may now have changed or to confine his remarks only to situations involving the amendment of permit applications rather than applications to amend a permit. Throughout his decision, Brooking J focuses on the principle that there is a need to distinguish "between modification, which is permissible, and transformation, which is not."[25]
For these reasons, we say that the Tribunal does not have the power to transform a permit under section 87A.
There is a further reason why we say that the power to amend a permit under section 87A does not confer a power to transform the permit. This arises from consideration of the decision in Fosters Group Ltd v Mornington Peninsula SC[26].
As noted earlier, the Tribunal held in that case that a permit can be amended so as to permit use and development which would be otherwise prohibited under the planning scheme, but a permit cannot be amended to include a new prohibited use. The decision contains an extensive discussion about the power to amend permits. In reaching the conclusion that the power to amend a permit does not include a power to include an additional prohibited use or to change a permitted use to a prohibited use, the Tribunal said that this would enable the planning controls in a planning scheme to be circumvented. All it would take to obtain a permit for a prohibited use would be to obtain a permit for a permitted use and then apply to amend the permit, or apply to amend any existing permit.[27]
Just as the Tribunal held in Fosters Group Ltd that there are constraints on the way in which permits may be amended for good public policy reasons, so we consider there are good public policy reasons for finding that a permit cannot be amended if it will result in a transformation.
One of the objectives of the planning framework established by the Planning and Environment Act 1987 in section 4(2) is:

[67]

We find strong strategic support in the Scheme for this proposal in a Neighbourhood Activity Centre[33] and note a number of key outcomes sought under State and local policies[34] will be achieved including the following:
- Concentrating major retail developments into an activity centre and contributing to a vibrant and viable centre.
- Maximising retention of retail expenditure within the activity centre and the municipality.
- Supporting and enhancing the role and function of the centre to meet local convenience needs.
- Provision of retail activity at ground level that engages with activity on the street.
- Facilitation of day and evening activity.
- Reduction in the number of private motorised trips by contributing to a concentration of activity that generate a high number of trips in an accessible activity centre and allows for access by walking, public transport and cycling.
Both State and local policy contain objectives that seek mixed use developments in activity centres and specifically seek higher density housing at upper levels that contributes to housing choice in locations with good access to services and facilities. We acknowledge the proposal does not accord with these directions. However, on balance we find that the contribution a supermarket will make to the vitality and business synergies of the centre combined with the difficulties in achieving upper level built form justify the lack of contribution to urban consolidation objectives. Under the current DDO18 that applies to the review site mandatory heights of 8m for a street wall and 11m for overall building are set. The same mandatory controls are proposed under Amendment C108[35] that includes the land under DDO16. These height restrictions combined with a sloping site and the necessity of achieving floor levels that respond to the SBO, make achieving upper levels problematic.
There are important policies and provisions relating to car parking, amenity and built form including heritage that are relevant to our consideration and we address these matters in the following sections.

[69]

To this street frontage the proposal presents with a two storey built form to the corner with Union Road with glazed shopfronts at the ground level and a metal screen enclosing the upper level. A clock is proposed to the upper level near the corner. Further west towards the rear right of way the building is single storey and presents with service features including substation, stair entry to basement levels and the two way vehicle entry to the basement car park.
We find the presentation to Sunbury Crescent acceptable subject to insertion of windows at the upper level. The building achieves pedestrian entry at grade to the corner, provides active frontage for part of the ground level and includes a mix of external materials that will create interest to the street. Whilst there are sections of blank wall that create a poor ground level interface we accept the necessity of accommodating practical elements necessary for a building of this type and consider they have been acceptably placed.
We agree with Council that inclusion of upper level windows facing Sunbury Crescent would add to the perception of passive surveillance, an outcome sought by various provisions of the Scheme and particularly appropriate diagonally opposite a railway station. The inclusion of a clock element creates a marker to the corner.
It is unfortunate that the mandatory nature of the height controls under DDO18 preclude a higher architectural feature at the intersection of Sunbury Crescent and Union Road, which would create a landmark element at this prominent corner. Good urban design principles would support such a feature.[36] We doubt that just a clock will sufficiently emphasise the corner when viewed from across the road or railway line. Whether there is any possibility of utilising the opportunity to exceed the maximum streetwall height to accommodate roof top services that are hidden from view from any adjoining public space or designed as architectural roof top features[37] is a matter for the applicant to consider when preparing revised plans for a fresh permit application.
It is important, in our view, to maintain the active frontage to the street by ensuring the majority of the glazed shop fronts remain open to the street and are not screened by advertising, opaque materials or internal placement of fittings. Our inspection of a similar sized supermarket in Fitzroy demonstrated the advantages of being able to gain views both in and out of the front windows at eye level in achieving activation with the street. We consider this matter can be addressed by permit condition.

[70]

We find the presentation of the development to Union Road appropriate except at the northern end where it adjoins the Moderne styled building on the review site at the Croydon Road corner. The positive design features include the following:
- A continuous street wall is proposed incorporating extensive shopfronts that will create an active frontage and contribute to the vitality of the centre. As referred to earlier it will be important that the glazed shop fronts remain open to the street to allow ongoing engagement with the street.
- Retention of heritage facades of 126 and 130 Union Road which are designated as contributory heritage buildings together with new buildings designed to be responsive to the heritage context in terms of height, window proportions, rhythm of buildings and finishes.
- Clearly defined entry to the supermarket at the corner of Union Road and Sunbury Crescent with a second entry to the Union Road frontage providing good connections for pedestrians, perceptions of safety and improved connectivity within an activity centre divided by a railway line.
- The location of vehicle access to the basement car parking off Sunbury Crescent and access to loading bay via Croydon Road avoids disruption to pedestrian activity or loss of the fine grain shop front pattern to Union Road and contributes to an enhanced public realm along the main retail street in the centre.
- Provision of extended canopies over the footpath will provide weather protection for pedestrians, although we agree that the canopies should generally be connected as sought by Council.
We do not share Council's concern about the height of the infill building at 132 Union Road. This new section of building is to adjoin the retained heritage facades at 126-130 Union Road and at 9.1m will be similar in height to the retained parapets. We find this height sits comfortably in the street, does not protrude above or detract from the retained heritage facades and has some function, as put by Mr Raworth, in contributing to a perception of the buildings as a three dimenstional entity rather than a 'skin deep' façade.
However as the proposal will not be dealt with as an amendment to the existing permit, compliance with the mandatory street wall height of the 8m as required under the current DDO18 will be necessary. We think this can be achieved by lowering the height of the infill building to 8m which will match the height of the horizontal banding in the parapet of 126 Union Road and still result in a sympathetic response to the heritage context. Whilst there may be some visibility of the retained heritage façade and the new roof form, this will be from limited vantage points and will not adversely impact on the streetscape or the heritage fabric
We note that DDO18 ceases to have effect after 31 July 2014. A new DDO16 is proposed to apply to the review site under Amendment C108 and as exhibited, proposes to retain the mandatory 8m street wall height. Depending on the timing of any new application for development of the review site and the final form of Amendment C108, the height of the street wall may have to be 8m; an outcome we consider can be accommodated, as referred to above.
The presentation of the proposal to the northern corner of the Union Road frontage and to the Croydon Road frontage we find problematic as addressed next.

[71]

At the corner of Union and Croydon Roads is a single storey Moderne styled building with distinctive banding, windows and corner elements identified as contributory to the heritage place. An extension to the original building extending west along the Croydon Road frontage is similar in brickwork and fenestration and described by Mr Raworth, in heritage evidence, as sympathetic with subtle differentiation between the new and original building.
The plans show retention of the façade of the building with a metal clad wall of between 1.4 and 2.5m in height extending above. The wall above the retained façade is to be profiled metal cladding with expressed seams. It was the heritage evidence of Mr Raworth that the additional wall would achieve the appearance of a secondary element and result in a positive outcome for the site and precinct in terms of heritage considerations. Existing windows to the building are to be retained but those currently with clear glazing will be covered with opaque film.
The review site is within a Heritage Overlay[38] and the corner building on 138 Union Road is identified as contributory. There are various scheme policies and provisions[39] that guide our consideration of new development in a heritage context. It is our view that the proposed treatment to the contributory building at 138 Union Road will detract from the heritage qualities of the building and the streetscape.
The Moderne building at 138 Union Road turns the corner into Croydon Road in an attractive manner and presents prominently to the Union Road streetscape, despite screening provided by substantial street trees in both streets. Whilst finding the retention of the façade an appropriate heritage response, we consider the proposed wall extension above presents as a discordant and dominant element that fails to appear as a secondary element to the contributory building. The corner element to this building is a distinctive feature that needs to stand proud of the building and retain its three dimensional character, an outcome not achieved by the proposal.
An inspection of some of the sites referred to by Mr Raworth has been undertaken to gain an understanding of the appearance of seamed metal wall finishes and we have viewed the photos provided. We are not persuaded by these examples (all of which have some contextual or built form differences from the proposal before us) that the treatment is sufficiently well resolved to provide an appropriate response to the heritage fabric in this proposal. In some of the examples viewed, the use of seamed metal finishes achieved an acceptable response due to physical separation from the original heritage fabric, significant elevation of the new material above street level or setback from the heritage façade, factors that are not evident in the current design.
We acknowledge the windows of the corner building are proposed to be obscured since they are effectively located with sill heights at the supermarket floor level and this elevated floor level arises due to various constraints. These constraints include a sloping site, the requirement to address the SBO that applies to part of the site, the need to provide pedestrian entry at grade and provide a single floor level for a supermarket. However, we consider the placement of screening on two windows facing Union Road and three windows facing Croydon Road creates an unacceptable interface with the footpath in these roads.
We consider there is an opportunity, with imagination, to develop the overall site in a manner that takes advantage of the corner portion of 138 Union Road, results in the extended wall being secondary to the heritage fabric especially in the view to Union Road, retains clear glazing to windows and engages with the streetscape.
For example, a small café on this corner might be one way of retaining use of the doorway on Croyden Road and activating this corner. Whatever solution is found ought ensure that the corner of the existing building retains its current integrity.

[73]

Respondent objectors raised concerns about noise and disturbance from deliveries, roof plant and activity associated with the supermarket, trolley management, security especially in the rear lane and lighting impacts. Addressing each of these issues in turn we find as follows.
Noise emissions from increased activity on and associated with the review site will occur. The design of the loading bay incorporates a solid 9m high wall to the west side of part of the loading area that will limit noise emissions. This design feature together with a restriction on hours of deliveries imposed by permit condition will, in our view, ensure that noise impacts to nearby residential properties will not be unreasonable.
The limits on hours for deliveries were the subject of discussion at the hearing. Mr Delaire, in providing expert evidence on acoustic matters, recommended that if there was an impact from delivery operations inside habitable rooms of the nearest affected residential property at 112 Croydon Road outside the recommended schedule of EPA Publication 1254, then hours of deliveries should be limited to between 7am and 10pm Monday to Saturday and 9am to 10pm Sundays and public holidays. It was Mr Delaire's evidence that the potential impact from deliveries can only be properly assessed when the delivery activities are occurring. It is our view that the hours ought to be limited to those referred to above with potential for amendment if noise impacts beyond those hours can be demonstrated to be acceptable. Any condition ought be certain as to the hours of operation, but with opportunity for amendment if appropriate.
We accept the recommendation made in the evidence of Mr Delaire that waste collection should be confined to the SEPP N-1 day period between the hours of 7am to 6pm Monday to Friday and 7 am to 1pm Saturday. We are satisfied that noise from mechanical services can be appropriately limited by a combination of location, solid screening and use of low noise equipment, all of which can be addressed by permit condition.
Increased noise in the area generally arising from increased traffic and pedestrian activity we consider an acceptable outcome in an activity centre, associated with use of land zoned Commercial 1 where the creation of vibrant centres are sought and shop is a use that does not require a permit.
Any lighting of the rear right of way can be appropriately designed to limited adverse impacts to adjoining residential properties and trolley management can be addressed by a permit condition requiring a trolley management plan to the satisfaction of Council. Insofar as security issues are a concern we find that the increased activity associated with the use, the active street frontages to Union Road and part of Sunbury Crescent will contribute to a sense of public safety. We agree with Council that passive surveillance and the perception of public safety would be increased with the provision of south facing windows to the upper level of the office facing Sunbury Crescent and improved activation of the northern elevation with the inclusion of clear glazing to the north facing windows. To the rear right of way Council seeks windows to be included overlooking the loading dock to improve passive surveillance. We agree some passive surveillance would contribute to perceptions of public safety but consider this could also be achieved by a security system such a video cameras. We are satisfied that this matter can be addressed to the satisfaction of Council, noting that privacy of the adjoining residential property at 112 Croydon Road must be considered in design.
Although not raised as specific amenity concerns, it is relevant to our finding the proposal acceptable that there would be no unreasonable overshadowing or loss of privacy to nearby residential properties and the built form presentation to the west is acceptable at the interface of residential and commercial zones given its relatively limited height and the separation distance provided by setbacks and the laneway.

[75]

A total of 84 car spaces are proposed in a two level basement accessed off Sunbury Crescent. The Scheme specifies a car parking provision of 5 car spaces per 100m2 of leasable floor area. Application of the ratio results in a requirement for 92 car spaces, thus a waiver of eight car spaces is sought. We are satisfied that such a waiver is acceptable having regard to the following.
Mr Walsh gave evidence that the development is expected to generate a peak parking demand for between 74 and 92 car spaces inclusive of staff demands, a position shared by Council traffic engineers.[40] The proposed 84 spaces is within this range with a maximum reliance on street parking for 8 car spaces, an outcome we find acceptable.
The car parking deficiencies associated with the previous use of the land is a relevant consideration.[41] In the evidence of Mr Walsh the printing business that previously occupied the review site was estimated to generate a demand for up to 30 car spaces on street. The current proposal will result in less demand for on street parking, even allowing for removal of four car spaces in Sunbury Crescent, a matter we address later.
The location of the review site near the Surrey Hills railway station and within an existing activity centre with other services and facilities provided will result in multi purpose trips that limit the generation of additional parking demand.
The excellent availability of public transport means a number of trips to the supermarket will be by train, especially for staff, further reducing anticipated parking demands.
The provision of bicycle parking for staff together with a staff shower and change area supports access to the site by bicycle.
We acknowledge concerns of objectors in Croydon Road about limited availability of on street parking for resident use as a result of the supermarket. Non-resident parking on residential streets in locations near an activity centre and a railway station is common. We note that there is currently some time restricted parking in Croydon Road and would anticipate that Council would monitor the need for this to be extended or altered if necessary.

[76]

The proposed basement car park is accessed off Sunbury Crescent which will result in increased traffic to this road and particularly to the intersection of Sunbury Crescent and Union Road. Delivery and waste collection vehicles will access the site from Croydon Road, utilise the rear lane and egress via Sunbury Crescent. It is our view that the increased traffic that will be generated by the supermarket can be accommodated by the existing road network. We say this having regard to the following factors:
- The supermarket will result in a traffic generation of approximately 239 traffic movements during peak operating hours that will be split between largely evenly split between inbound and outbound movements. Approximately 95% of the traffic will be generated to/from the north and south along Union Road with some 5% arriving and departing to the west along Sunbury Avenue.[42]
- The evidence of Mr Walsh, having undertaken traffic volume surveys of the Union Road/Sunbury Crescent intersection and analysed the operation of the intersection, that the additional traffic volumes anticipated can be comfortably assimilated at the intersection.
- Whilst traffic queues and delays will inevitably be exacerbated at times when the railway level crossing is closed, these will not be beyond what is reasonable and is an existing limitation associated with any traffic generated from the review site.
Sunbury Crescent is a two way road with a trafficable width of approximately 6m and kerbside parking on the north side. We agree with Mr Walsh that removal of the four car spaces adjacent to the review site frontage between the access and Union Road is necessary to ensure traffic flows and allow for adequate queuing at the intersection. Whilst this is a matter for Council as manager of the road, we consider the absence of two way traffic flow in front of the site would be unacceptable.
We think the layout with access to parking from Sunbury Crescent will confine the bulk of additional traffic to that road accessed from Union Road. We acknowledge that local residents may use circuitous routes to access the supermarket that will increase traffic on local streets but are not persuaded that this will be beyond the capacity of those streets. Furthermore we note that there is opportunity for Council to investigate the need to limit or slow traffic in residential streets through various traffic calming devices if this becomes necessary.

At a glance

Court

Decision date

Before

Source

Judgment (118 paragraphs)

Parties

Cases Cited (2)

Coles Property Group Developments Limited v Boroondara CC (Including Summary) (Red Dot) [2014] VCAT 342 (1 April 2014)