Is the use of the store consistent with the purpose of the Business 1 zone?

1. Ms Kokkinos submitted the use of the land for a store was not sufficiently consistent with the purpose of the zone to as the use would detract from the attractiveness and vibrancy of the centre by reducing active frontage to Centre Road and the poor interface the store to the rear of the building in the form.
2. The Business 1 zone seeks to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses consistent with state and local policy.
3. State and local policy in turn promotes uses development that promotes attractive and liveable centres and public areas that are safe. Ms Kokkinos submitted the proposal would not add to the vitality and vibrancy expected for the existing shopping centre.
4. Whilst the of the site as a store has limited opportunity in itself to add to the vibrancy of the centre, I acknowledge that it is directly linked to use of the specialist upholstery shop located at 187 Centre Road. From submission of Mr Daher and Mr Hanna I accept this business does draw people to this local centre as a more specialist business drawing upon a larger catchments than would generally be expected for this local centre. As such I am satisfied that whilst a store alone may not be best use of a Business 1 zone, it is in this instance tied to use of a broader attracter of the centre. I also note the premise includes a window display of furniture to ensure some visual interest is maintained to passing pedestrians.

Does the use of the store adversely impact the amenity of the area?

1. Ms Kokkinos submitted the shipping containers did not appropriately address the visual amenity of the surrounding area as they presented as rusted poorly maintained utilitarian structure. The Business 1 zone does require that uses should not detrimentally affect the amenity of the neighbourhood through the appearance of any building, works or materials. This requires me to assess whether the appearance of the store, including shipping containers, detrimentally affects the amenity of this neighbourhood.
2. The containers are located in the rear of the premises in a storage yard location where a lesser standard of presentation would be expected than to the front of shops. However, rear service yards still need to maintain a functional, safe and amenable environment, albeit a more service orientated environment. In this instance the rear yard of 177 Centre Road faces toward the side of the front yard of 1 Wilson Street although it is mostly screened from direct view due to fencing and part of a carport. Part of the rear of the site however, is visible due to the rear area remaining open for access to rear car parking. Having two rusted, leaning and poorly maintained structures exposed to the residential interface I find presents a poor visual outlook.
3. In a similar manner that an open store area may require screening to protect the visual amenity of a neighbourhood from, I find it reasonable to consider a need to screen the containers as part of the use of store, regardless of whether their installation is only use or use and development as is likely to be the case[3].
4. Mr Hanna and Mr Dahar stated they were willing to screen or clad the shipping containers so that their appearance to the residential area would be minimised. They also noted that this could be attached to the containers as no access is provided to the containers from the residential interface. I am satisfied that if the containers are generally screened from view of the direct residential interface reasonable visual amenity can be maintained.
5. The containers will still be partially seen in oblique angle over the side fence from Wilson Street. These views, however, are small and partially hidden by other service yard fencing and activities such as trucks parked on the adjoining property. I find these oblique views do not have the same direct interface as the views to the rear of the site that generally remains open to provide for car parking on site. I find these oblique views of the containers acceptable given the service yard context and the distances to immediate neighbours from oblique views of the service yard.

Are there any other matters that may warrant refusal of the application?

1. Mr Behnk submitted the containers were not properly drained and potentially led to problems with weeds and slippage of the containers in the adjoining site.
2. Whether the use of the site is impacting on the drainage of the surrounding area is an issue for Council to address through other provisions in its role as drainage authority for the area that requires the site to drain to a legal point of discharge.
3. I therefore have not specifically addressed this issue in conditions of the permit.
4. Ms Kokkinos also noted that Council had not assessed if the proposal required any additional car parking than the two spaces provided at the rear of the site. I am satisfied the provision of two spaces meets the requirements of Clause 52.06 and does not trigger an additional need for permit for a reduced parking requirement as the area of parking is more than 10 per cent of the site area, based on the calculations provided in the application.

1. Provided the use is suitably screened and clearly forms part of the use of the upholstery centre at 177 Centre Road, I am satisfied that the site use as a store (including use of two shipping containers for storage) appropriate for the site.
2. In addressing conditions I have included additional requirements for amended plans to be submitted to address matters outlined in my reasons above. I have also included a condition to require the use and development to commence within 12 months of the date of issue rather than 2 years as required under the Planning and Environment Act 1987. Given this permit is to retrospectively approve the use including the installation of the two containers on the site I find it reasonable that the screening of the use be undertaken as soon as practable to address current amenity issues to the neighbourhood.

The permit allows use and development of a store in accordance with the endorsed plans.

1. Before the use and development start, amended plans to the satisfaction of the Responsible Authority (2 copies) must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with the application plans but modified to show:

1. A solid screen fence at least the height of the containers to extend the width of the site directly to the rear of the shipping containers, or affixed to the shipping containers so as to screen their view from adjoining residential properties. 2. Materials and finishes of the screen fence.

1. Clarification that two car spaces at least 2.6 x 5.2m in dimension are retained at the rear of the site.

1. Details of any footings, mountings and earthworks to the storage yard to fix the shipping containers in place. 2. Clarification that a commercial display area is to be maintained in the shopfront to face Centre Road.
2. No manufacturing, repair of similar use may be carried out on the subject site.
3. Access to the containers forming part of the storage yard is only to occur from the rear of the building, not the rear car park area.
4. The layout of the site and the size of any proposed buildings and works shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority.
5. The use of any land or building or part thereof as shown on the endorsed plans will not be altered or modified without the written consent of the Responsible Authority
6. The use and development hereby permitted must be managed so that the amenity of the area is not detrimentally affected, to the satisfaction of the Responsible authority, through the:

1. Transport of materials, good or commodities to or from the land; 2. Appearance of any building, works or materials;

1. Emissions of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

1. Presence of vermin.
2. This permit will expire if one of the following circumstances apply:

1. The development is not started within one year of the date of this permit. 2. The development is not completed within two years of the date of this permit.

1. The use no longer forms part of the use of the 'Unique Upholstery' business located at 177 Centre Road, Bentleigh.

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

[1] In reaching a decision I have considered all submissions, expert evidence, statements of grounds and material tendered and filed by the parties. I do not, however, recite all of that material in these reasons.

[2] Mr Hanna and Mr Daher acknowledged that because the containers had simply been placed on the land without any footings or foundations they were leaning into the adjoining property. They indicated they were aware that this breached the rights of the neighbour and would seek to undertake works to right this situation if a permit were granted.