Victorian Civil and Administrative Tribunal|2001-10-25|Before: Dr P

Daehli & ors v Bayside CC [2001] VCAT 2141 (25 October 2001)

RESPONDENT OBJECTOR: Mr Lynton Daehli, Mr R P Newman,

Mr Robert Knight and Ms Annette Knight, Mr Peter Cully and Ms Merrill Cully,

The order of the Tribunal is that the decision in relation to permit application 2000/6179 by the Bayside City Council to refuse to grant a planning permit is set aside. The Tribunal directs the Responsible Authority to issue a permit for 21 dwellings and associated car parking on land known as 21 Wilson Street, Brighton generally in accordance with the plans submitted with the planning permit application, 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 three copies must be provided. The plans must be generally in accordance with the plans substituted in the application by the Tribunal, but modified to show:

b) No part of the finished ground floor levels exceeding 500mm above natural ground level measured directly below.

d) All paving (except driveways) to be porous pavers laid on a compacted sand base.

e) A schedule of all external materials and finishes showing the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing).

f) All plant and equipment (including air conditioning units, heating units, hot water systems, etc).

g) The car parking spaces allocated to the hotel component of the development clearly marked as such.

i) No alterations to the front facade of the hotel.

j) Noise protection measures for the proposed apartments.

k) First floor study and kitchen windows of Apartment 4 screened in accordance with Technique 4 of Element 7 of the Good Design Guide.

2. Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show the proposed landscape treatment, including the location of and size at planting of all existing and proposed species.

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

4. Before the development starts, a site layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993 and submitted to the Responsible Authority. The plan must show a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to the Council nominated point of discharge to the satisfaction of the Responsible Authority.

5. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

6. 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.

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.

7. Street numbers contrasting in colour to the background must be fixed at the front boundary of the property as near as practicable to, or on, the letterboxes, to the satisfaction of the Responsible Authority.

8. All service pipes (excluding spouting and stormwater downpipes), fixtures and fittings must be concealed to the satisfaction of the Responsible Authority.

9. Alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift, and the construction of this retaining wall must be the sole responsibility of the developer, all to the satisfaction of the Responsible Authority.

10. Before the development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

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

e) Line-marked to indicate each car space and all access lanes.

Parking areas and access lanes must be kept available for these purposes at all times, and must be maintained to the satisfaction of the Responsible Authority. The new crossover required for access to the basement car park must be constructed to the satisfaction of the Responsible Authority, including provision of any necessary traffic signs.

12. Before any of the dwellings are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority, and must then be maintained to the satisfaction of the Responsible Authority.

13. All existing vegetation shown on the endorsed plans must be marked before demolition of the existing building and before any development starts on the site, and that vegetation must not be lopped without the written consent of the Responsible Authority.

14. All basic services, including water, electricity, gas, sewerage and telephone, must be installed underground and located to the satisfaction of the relevant authorities and the Responsible Authority.

15. Prior to the occupation of the apartments authorised by this permit, a noise management plan must be approved by the Responsible Authority. The noise management plan must include measures to alleviate noise associated with mechanical plant, music and patron noise (including testing requirements) to the satisfaction of the Responsible Authority. The development must be constructed and operated in accordance with the requirements of the noise management plan to the satisfaction of the Responsible Authority.

16. Prior to the commencement of construction of the building authorised by this permit, the permit holder must provide details of the drainage or other measures to provide reasonable protection to the adjoining property of 19 and 19A Wilson Street, Brighton from water form the landscape irrigation system to be established as part of the approved landscape scheme to the satisfaction of the Responsible Authority.

___________________ ____________________

Mr P Martin, Solicitor of Gadens Lawyers, appeared on behalf of the Bayside City Council.

Mr Lynton Daehli, Mr R P Newman, Ms Kaye Bradd, Mr Barrie Sheppard, Mr Robert Knight and Ms Annette Knight, Mr Peter Cully and Ms Merrill Cully, Mr Ian Ferguson, Mr Algernon Sucharov, Mr G L Phair and Dr P Phair, Respondents/Objectors, appeared on their own behalf.

Mr Christopher Canavan QC, and Mr Philip Bissett, Minter Ellison Lawyers, appeared on behalf of the Applicant for Review/Permit Applicant. Mr Canavan called the following witnesses:

Mr Greg Tucker, Traffic Engineer, Greg Tucker and Associates

Mr Timothy Vernon, Landscape Architect and Director, Contour Design Australia

Mr Robert Burton, Noise Consultant, of Burton Acoustic Group

1. This application for review was made by Resdale Pty Ltd under S.77 of the Planning and Environment Act 1987 (the Act) in relation to the refusal by the City of Bayside to grant a planning permit for 21 dwellings and alterations to the existing hotel, known as Kyat's Hotel, at 25 Wilson Street Brighton.

2. The Responsible Authority's submission described the site as follows:

The site has a frontage to Wilson Street of 40.5 metres, a depth of 50.33 metres and a total area of 2,377 square metres. There is a two metre wide connecting laneway to Collins Street at the rear, which is not intended to be utilised as part of the proposal. The use of the Site currently involves car parking for 40 spaces and a hotel comprising a public bar, saloon, walk-in bottle shop, restaurant, two function rooms, courtyard, and three apartments.

3. Further details of the surroundings of the site will be considered in relation to neighbourhood character and design response issues.

4. The Tribunal has inspected the review site and surroundings during the day and between on a Friday evening.

5. Mr Martin's submission contains details of relevant Planning Scheme provisions and policies which are summarised as follows:

The site is zoned Residential 1. The purposes of this Zone essentially involve providing for a variety of dwellings to meet different household needs, together with allowing certain other sympathetic non-residential uses in appropriate locations. A permit is required for medium density housing as is proposed here.

Clause 52.04 requires the applicant to accompany its application with a Site Analysis as described in the Good Design Guide containing a site context plan containing information in respect of the Site and the surrounding area. The Applicant must also provide a design response to the Site analysis.

Good Design Guide and Council Neighbourhood Character Study

Under Clause 16.02-2, Council examined the Proposal in relation to the Good Design Guide when making its determination.

The Bayside Corporate Plan 1998-2001 is a reference document to Council's Strategic Framework Plan under clause 21.04-3 of the Scheme.

6. Local Planning Policy provisions and relevant excerpts from the Council Neighbourhood Character Study are set out and considered under the Issues heading later in these reasons.

7. Mr Borelli provided a summary of the proposal in his submission as follows:

The proposal in this application involves the redevelopment of a large site, occupied by a suburban hotel and car park. It involves retention of the existing `front bar', office and caretaker's flat and the construction of a three storey residential building containing 21 apartments over a basement with 52 car parking spaces. The top floor apartments have a roof terrace above.

The application site is located within a civic and residential precinct that contains the Brighton Town Hall, a municipal library and the Brighton Police Station as well as residential development. The development proposed has a density of one dwelling per 113 square metres and a site coverage of approximately 50.7%.

8. To avoid repetition, further detail of the proposal will be considered in relation to the issues, and in particular issues of amenity and neighbourhood character.

9. Mr Martin's submission contained the following with respect to advertising and objections:

The proposal was first lodged in December 2000. Council received in the order of 80 public submissions in response to the proposal. The objections raised essentially dealt with lack of sympathy with neighbourhood character, overdevelopment, excessive density and height, loss of privacy, and likely noise, visual bulk and traffic problems.

Following a recommendation by its Planning Department that the Proposal be refused, Council issued a Notice of Refusal to Grant a Permit on 7 May 2001

1. The proposal is contrary to the Municipal Strategic Statement.

2. The proposal is contrary to the spirit, intent and objectives of the Good Design Guide.

3. The proposal would have a detrimental impact on the amenity of the area.

4. The proposal is excessive in density and height and has inadequate setbacks.

5. The proposal causes an unreasonable level of visual bulk to the streetscape and adjoining land.

6. The proposal has a detrimental impact on the amenity of adjoining land.

7. The proposal provides inadequate car parking facilities.

8. The proposal is an overdevelopment of the site.

11. The permit applicant appealed against the Council's Refusal to Grant a Planning Permit on the following grounds:

1. The land is zoned for residential purposes and the development complies with the relevant policy, objectives and controls of the Bayside Planning Scheme.

2. The development provides for adequate car parking facilities and will not cause any unreasonable traffic impacts.

3. The proposed development will not detrimentally impact on the legitimate and reasonable amenity expectations of the occupiers of adjacent and nearby land.

4. The proposal is sympathetic to neighbourhood character.

5. The proposed development is recessive and highly articulated thereby integrating with the streetscape and adjoining properties.

6. The proposal is not an overdevelopment of the land.

12. Amended plans incorporating minor design changes were circulated on 1 August 2001 notably moving the basement ramp to the centre of the street frontage of the site. The Tribunal amended the permit application by substitution of those amended plans in the permit application.

13. A central issue in the application for review was the potential impact of the proposed development on the parking supply in the vicinity of the review site.

14. The proposal would replace the existing car park and the existing function rooms at the rear of Kyatt's Hotel with the proposed apartment building. The car park was provided for function rooms which are to be demolished. Historically, the original hotel component did not provide off street car parking.

15. Mr Greg Tucker gave evidence that during a `worst case scenario' in relation to peak demand and available supply twenty additional car spaces would need to be found in the vicinity. During cross examination it was suggested that this number may be higher or in the order of 25 spaces due to the changes to bus parking which may occur in Wilson Street.

16. Mr Martin provided a hypothetical view that if, for example, the use of the library car park were precluded through traffic management measures, the car parking supply would be significantly reduced and the demand for on street car parking would be greater than that estimated by Mr Tucker. The Tribunal notes that the library car park is a public car park and that there appears to be little overlap in the demand for car parking of the hotel and the evening hours of library operation. The Tribunal inspected the library car park on a Friday evening when patrons of both the library and the hotel were present. Even if parking measures were applied to the library car park the Tribunal noted that there were more than sufficient spaces available in the vicinity to provide for Mr Tucker's projected overflow of approximately 25 spaces.

17. The respondent objectors were of the view that the car parking supply would be less than that forecast by Mr Tucker. In particular Mrs Knight provided information that the supply in Wilson Street was likely to be reduced due to the formalisation of a Request bus stop.

18. During the site inspection, the Tribunal noted that the hotel bar was fully occupied and that there were also some patrons in the outdoor area adjacent to the car park (this area would be removed as part of the review proposal). The supply of car parking included at least 30 spaces in very close proximity including on street parking in Wilson (particularly in front of the church) and St Andrews and off street car parking in the public car park outside the library. The Tribunal also noted, on the Friday evening inspection that the bus stops on both sides of Wilson Street were clear of parked vehicles. Slightly further afield, in streets at one block or less from the hotel, there were further car spaces on street. The right angled parking adjacent to the open space in Boxhall Street was completely empty of vehicles. These spaces are indented into parkland, rather than being outside residences, and are in reasonable walking distance of the hotel.

19. The Tribunal concluded that the proposed parking arrangements as set out in the Tucker report, including the residential car parking, was satisfactory.

20. Mr Martin referred to the overview of the Bayside Municipal Strategic Statement (the `MSS') as recognising the trend towards smaller household sizes, the need to accommodate a projected 2140 additional households over the next 10 to 15 years, and the demand for a variety of housing types. He also highlighted the reference to the need to `balance the expectations of residents and development pressures', and that Clause 21.05-2 includes the following:

"Development pressures in the City of Bayside due to its attractiveness as a place to live and its accessibility are eroding the urban character and quality of some residential areas.

21. The Tribunal agrees that local policy seeks to balance the demand for more housing and more diverse housing against the essential character of Bayside . Local housing policy also encourages housing in and around commercial and community facilities and public transport nodes. The subject site is in close proximity to a grouping of large scale community facilities and the hotel.

22. In relation to housing variety, Dr Phair commented that older people want houses with gardens. This was not supported by survey material and is not borne out by the experience of the Tribunal. It is probable that some older people want houses with gardens whilst others do not wish to have gardens. As stated by Mr Borelli there are few sites available for this form of development and that housing with lifts is rare.

23. The Tribunal considers that the proposal is consistent with Local Policy, and this will be amplified in the following reasons.

Urban Character and Design of the Review Proposal

24. A key issue, raised at the hearing by both the Responsible Authority and the respondent objectors, was whether the three storey nature of the proposed apartments would be appropriate in terms of the relevant objectives, criteria and techniques of the Good Design Guide with respect to built form, including the objectives for neighbourhood character

25. Mr Martin provided the Tribunal with relevant descriptions of urban character. A copy of the Area B provisions are attached at Appendix 6 to the submission on behalf of the Responsible Authority. Under Bayside's Neighbourhood Character Study, the desired future character Statement for Character Area B (in which the site is located ) is as follows:

The area should seek to retain and enhance the character established by the existing individual Victorian, Edwardian, Federation, interwar and post war dwellings, within the streetscape and their associated established gardens.

New dwellings and extensions to existing dwellings are to be developed in a style and form that is consistent with the overall scale, massing and proportion of the established style of housing within the street and maintain the development pattern of detached villa style housing and set within well-developed garden settings. Dwellings should incorporate sympathetic materials and forms, including roof pitch and articulation of façade.

The siting of new developments on allotments should reflect the established setback patterns of the street, including front, rear and side setback to encourage the development of gardens which will reflect the established garden character of the area.

The area should seek to reinforce and enhance the of the (sic) established `rhythm' of the existing streetscape, specifically:-

. the maintenance of the pattern of street planting

. the maintenance of `articulation' or separation of dwellings from adjacent dwellings

. and retention of bluestone kerb and channelling where appropriate

26. The Planning Scheme requires the Responsible Authority and this Tribunal to consider local and State planning policy as appropriate in relation to the review proposal. It is State and local planning policy to respect neighbourhood character. In this case however, the character statement describes common attributes of a relatively large area, rather than the different scale and context of the immediate vicinity of the review site. The character description is therefore given less weight than if the context was consistent with the character description for Area B.

27. The character and scale of built form around the intersection of Wilson and Carpenter Streets differs markedly from the description given in the Character Study. The allotment pattern includes large and small scale lots due to the number of larger community uses in the vicinity. There are significant gaps in the domestic scale of built form due to the community uses such as the kindergarten and church. The neighbourhood in the vicinity of the site contains a number of large scale community and commercial buildings including the Town Hall, Police Station and Kyatt's Hotel (19th century two storey structures with a height similar to that of modern three storey buildings). The Church spire and Town Hall tower are the tallest elements in the vicinity and are significantly higher than the height of the proposed apartments. These built elements are significantly higher than other community or non-residential buildings in the vicinity of the review site. The Brighton Library is higher than the surrounding domestic scale, although set within parkland. The Knight's dwelling is also a very prominent element in terms of other dwellings in Wilson Street.

28. The portrayal, through computer generated photographs, of the likely integration or otherwise of the proposed apartment building into the streetscape and built form context was questioned by the respondent objectors. In particular Mr Sucharov was of the view that, due to the use of a wide angle lens, these photographs showed a reduced impact of built form compared with that which would actually occur. In considering the likely appearance and bulk of the review proposal the Tribunal places greater weight on the measurements provided on the plans (with respect to heights, setbacks and articulation) than on the computer generated photographs.

29. The southwest elevation of the review proposal shows that the roof line of the proposed development would be lower in relation to natural ground level than the roof line of the police station and hotel buildings. The proposed entry feature, while marginally higher than the main roofline, would also be lower than the roof lines of the hotel and police station buildings. The elevations have the tendency to "flatten" the appearance of built form so that the effect of setbacks or articulation is not as great as it would be in three dimensions. Viewing the review proposal in plan and in elevation allows the Tribunal to better assess the likely impact of built form in the streetscape than looking at the elevations alone. It is noted that there would be varied setbacks along all elevations and that the built form would step away from all boundaries as it increases in height. The Tribunal is of the view that design of the review proposal would make an appropriate transition between the large scale non-residential buildings, including the harder edged vertical façades of the hotel, and the residential dwellings in Wilson Street.

30. Given the existing built form context of the review proposal and the gradation and articulation of the proposed built form the Tribunal is of the view that there would not be unreasonable impacts on neighbourhood and streetscape character.

31. The inclusion of a third storey in the review proposal caused significant concern to all of the respondent objectors and to the Responsible Authority.

32. The Tribunal was referred to a recent Panel Report in relation to proposed Amendment C2 to the Bayside Planning Scheme. The Panel concluded that mandatory height control in the foreshore areas be approved as exhibited in Amendment C2. However at paragraph 8.8, Inland Height Control, the Panel had the following to say with respect to the area including the review site:

When applying these same principles to the inland areas, the Panel is unable to source the strategic justification for a mandatory height control in any of the research which has been undertaken. On the contrary, it is the quite clear need for a discretionary control be imposed over the inland areas......

The lack of justification for a mandatory control is even more pronounced when one assesses the strategic research in the Urban Character Report with respect to height. The Panel has already noted that this report needs to have an elevated status in Amendment C2. The municipality is split into eight "character" areas with each one analysed according to:

Potential threats to the Identified Character and Contributory Elements

In each of the eight character areas, "Built Form Height" is discussed as a dominant contributory element and contains a description of the typical building heights found in the area. Importantly, from the Panel's point of view, not one of the eight areas suggests that building height is a "potential threat" nor does any of the eight areas mention "height " in the context of the desired future character of the areas. The Panel believes that it is a quantum leap to suggest that there is any strategic justification for a mandatory height control in the inland area when the character study omits to suggest that the question of height poses any threat to any area in the municipality; or that the issue of height needs addressing in the context of the desired future character of any area.

33. Under paragraph 8.9 Commercial Area Height Control the Panel addresses the issue as follows:

The Kyatts Hotel proposal involves the redevelopment of the hotel where the front of the property is proposed to be retained and the rear redeveloped as a new three storey apartment building. The hotel has no heritage listing and it is located within the Civic Precinct. The site was exhibited as an area of managed change, with a two storey height limit with the discretion to go to three. The modified amendment proposes an absolute two storey limit. The Panel can find no justification for the change and as mentioned it supports the exhibited amendment.

34. The Panel has clearly indicated that there is no strategic planning basis for a mandatory two storey height limit at the review site. The Tribunal notes this finding of the Panel and considers that the treatment of height in the review proposal is a matter of design in relation to built form context rather than one of an absolute number of storeys. In this review proposal the third storey would be well set back from the lower levels of the building. The effect of the setback would be to substantially reduce the impact of height when viewed from a lower viewpoint and particularly from a closer viewpoint such as walking along Wilson Street on the footpath outside the front fence. This can be seen in a number of examples of apartments around the middle and inner suburbs of Melbourne. The Knights provided photographs of three storey flats in Elwood which appear to have been constructed in the 1960s or 1970s and which have minimal articulation. The design of these dwellings has very little in common with the design of the review proposal.

35. The single storey dwelling at 26 Collins Street north west of the laneway at the rear of the car park is designed to face open space which is located to the Collins Street side of the dwelling The rear open space appears to be used partly as a service yard containing a washing line and there is only one window facing the review site.

36. Until the landscaping matures the Tribunal considers that there would be some impact of bulk on the rear yard. Alternative, better quality, north-facing, private open space is also available to the dwelling. The rear of the dwelling would no longer be affected by the two storey element of the hotel and the impacts of the hotel car park. Given these factors the Tribunal considers that the impact of bulk would not be unreasonable in this direction.

37. The potential impact of overlooking is also a relevant amenity consideration in relation to 26 Collins Street. At present the rear yard is partially overlooked by the two storey windows of the hotel although there are some screening trees in the southeast corner of the rear open space at 26 Collins Street. The minimum setback of a first floor window on the north western elevation from the boundary with 26 Collins Street would be 8m. The first floor deck would be set back at a distance of 7m. The first floor decks would be fitted with privacy screens. The minimum setback of the second floor windows on the north western elevation would be 12.8m. The second floor deck would be setback at a distance of more than 9.5m but would be screened by a permanent planter box to reduce views from the edge of the deck. The closest point at which a person could stand on the second floor deck would be more than 9m from the boundary with 26 Collins Street and this deck would be screened. The roof decks would be more than 15m from the boundary with 26 Collins Street and edged by planter boxes. In view of Mr Borelli's evidence, the Tribunal considers that it would be difficult to obtain a clear view of the Cully's rear yard due to the location of the decks, set in from the edge of the building within the roof form. The Tribunal considers that the first floor study and kitchen windows to Apartment 4 should be screened in accordance with the Good Design Guide as they could result in a perception of overlooking from that direction.

38. Mr Vernon gave evidence that the setback of the proposed basement would allow for the growth of screening vegetation in the northern grassy areas at ground level. The Tribunal is of the view that the combination of setbacks of windows and decks, proposed landscaping, privacy screens, existing vegetation and planter boxes would not result in unreasonable overlooking to 26 Collins Street given the orientation of that dwelling and the existing context of an adjacent hardstanding car park providing little landscaping.

39. The property at 24 Collins Street is being developed as a large two storey residence with a high rear fence. The Tribunal was informed that this property is owned by one of the owners of the hotel and no objections were lodged in relation to this dwelling. Nevertheless the Tribunal is of the view that there would be a reasonable amenity tradeoff for this property in terms of being adjacent to the dwellings rather than the hotel car park.

40. One property in Carpenter Street, at number 79, has a partial interface with the rear of the subject site. The private open space of this property is well screened, in the direction of the review proposal, by existing large trees. In addition the location of the existing garage on the boundary provides further separation between the review proposal and the existing private open space. The decks and windows facing this property would be screened, and as an additional precaution a condition of permit will require all windows and decks to be screened in accordance with the requirements of the Good Design guide. The setbacks of the apartment building would be in accordance with / in excess of the requirements of E6 T4 of the Good Design Guide. The Tribunal is of the view that the combination of setbacks and screening (both existing and proposed) would not result in unreasonable overlooking in this direction.

41. Mr Daehli's property is developed with two residences which have very limited fenestration facing in the direction of the review site. The newer or rear residence appears to have been designed to turn its back on the existing hotel car park at the review site. Mr. Daehli was concerned that overlooking of the rear of his property would occur.

42. Mr and Mrs Knight and Mr Sucharov raised the issue of potential overlooking of the rear of their properties. In his evidence Mr Borelli stated that, given the sight lines (as shown on the diagrams based on Section C at plan SK08A) and that screening devices and 8.5m trees would be included in the proposed landscaping, there would be few opportunities to look into windows and open space at 15 and 17 Wilson Street from windows and decks of the proposed apartments. Mr Bissett also pointed out that the distances over Mr Daehli's property to 15 and 17 Wilson Street were greater than 9m and that some overlooking is reasonable in the residential setting at the distances proposed.

43. The Tribunal notes that some casual unscreened overlooking of nearby properties from first storey windows of dwellings and the hotel can occur at present. The Tribunal is of the opinion that there would not be opportunity for unreasonable overlooking, given the distances between the rear yards of the Wilson Street properties and the proposed decks and windows, the design and extent of the proposed screens and permanent planter boxes, the proposed landscaping, the existing intervening landscaping and the angles of view over Mr Daehli's property.

44. The Knights were also concerned about potential noise from the use of balconies or decks. Mr Knight noted that there were no physical barriers between some of the proposed decks and his dwelling. Mr Knight said he had experienced noise from "ghetto blasters" while travelling along Beach Road. The Tribunal notes Mr Burton`s evidence that occasionally parties will be held in residential properties but that it would be unlikely that they would all entertain simultaneously. He compared the situation with the possibility that immediate neighbours of the Knight would have parties in their rear yards and the Tribunal notes that these events could be in closer proximity than the flats.

45. The proposed dwellings could be occupied by a range of households with a range of ages. The Bayside Municipal Statement highlights the ageing of the population and the Tribunal is of the view that in this location and given the proposed lift it is reasonably likely that some households would be made up of older persons. The proximity of decks within the development could well result a self regulating situation or through the body corporate with respect to noisy behaviour. In any case, there are domestic noise controls which can be enforced, but the Tribunal is not convinced that frequent nuisance is likely to result from this residential source.

46. The respondent objectors were concerned about the impact of noise from the hotel. During the course of the hearing Mr Bissett stated that the permit applicants / applicants for review would accept a planning permit condition such that the alterations to the façade of the existing hotel were not included. The Tribunal notes that without the additional new openings, proposed originally for the hotel facade, the noise from the bar is likely to be similar to the present situation. The existing function rooms and outdoor eating and drinking areas at the rear of the hotel have glass windows or screens which are open at the top. Some of these areas were in use when the Tribunal made its inspection and would appear to offer very little in the way of noise protection for residents to the west in Wilson Street. These areas are to be demolished in the review proposal and replaced by the residential use and development. In his report Mr Burton concluded that the proposed alterations to the Hotel provide the opportunity for considerable reduction in off-site noise impacts. The Tribunal concurs with that view.

47. Mr Burton provided recommended construction measures to protect the internal amenity of future residents of the proposed apartments from hotel measures. The Tribunal is of the view that these measures should be required by appropriate condition of permit.

48. The respondent objectors were of the view that the hotel noise issues should be dealt with in the current planning permit application rather than through liquor licensing. A noise management plan was proposed by Mr Bissett and is considered appropriate as a condition of permit.

49. Mr Daehli's concerns included the potential for damage to his property from tree watering for the landscaping of the review site. A condition in relation to this matter was provided on behalf of the permit applicant and will be included in the planning permit.

50. A number of respondent objectors raised issues of amenity and behaviour associated with the existing operation of the hotel. The Tribunal is of the view that these issues are the province of the liquor licensing commission.

51. The issue of density was raised by a number of the respondent objectors. The Good Design Guide states the following with respect to density benchmarks:

Densities may be increased where it can be demonstrated that the objectives and criteria of the guide as a whole will be met. Similarly, where it can be demonstrated that the objectives and criteria of the guide as a whole will not be met or where there will be unreasonable offsite impacts the densities may need to be reduced.

52. The size of the "site" in relation to the calculation of dwelling densities was questioned by the respondent objectors. As is stated in the above quotation from the Guide, it is the extent of potential off site impacts that is the critical factor in considering the question of density. The potential amenity impacts have been considered earlier in these reasons and it was the view of the Tribunal that these impacts would not be unreasonable.

53. The grouping of the church, hotel, library, kindergarten, police station and Town Hall and open space could be described as a `community activity centre'; that is, the area in the immediately vicinity of the site could not be described as a residential area consisting solely of low scale dwellings.

54. While the Knights and Sucharovs were particularly concerned about amenity issues associated with the hotel, the role of the hotel was mentioned as a positive benefit to the local community by Dr Phair.

55. Some additional car parking may well occur on street and in the public car parking nearby but there is an ample supply and the change in mix from large functions/dining/bar to one of a smaller meeting room and bar may result in a different role for the hotel. On balance the Tribunal considers that the review proposal would result in overall net benefit due to:

b) The construction of a building with a lift, appropriate to a range of household needs including disabled and older persons. Dr Phair said that older people want a place with a garden. We observed that many older people will undoubtedly have such a preference, whilst others will have a preference for this type of accommodation.

c) c) Loss of that part of the hotel which contains openings and faces most directly towards the residents in Wilson Street and which contains outdoor eating and drinking areas

d) Loss of the hotel/ car park interface with residences

56. For all of the above reasons the Tribunal will order that the decision of the Responsible Authority is set aside and direct the issue of a planning permit.

___________________ ____________________

Environment Act 1987

Daehli & ors v Bayside CC [2001] VCAT 2141

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

Daehli & ors v Bayside CC [2001] VCAT 2141 (25 October 2001)

Parties

Legislation Cited (1)