The application proposes three signs positioned as follows.
A sign of 2.47 square metres free standing near the front boundary.
A business sign of 1.66 square metres is on the front façade of the building.
A parking directional sign of 0.27 square metres positioned on a post near the southwestern corner of the property.
I note that council does not oppose the business sign on the building but submits that the freestanding sign with reduced overall height (now with an overall height of 2.575 metres) and reduced advertising area would potentially satisfy preferred signage criteria including those in clause 15.01-1L-03. The parking directional signage was not raised as an issue of concern by council.
Other parties did not make strong written representations opposing the signage, except Ms Griffith who raised concerns in relation to the location and effectiveness of the parking directional signage.
[2]
Much of what was said in Gonopoulos v Banyule CC[2022] VCAT 13 about the locational strategies in clause 13.07-1L remains the same, except there is no longer any need to assess whether there are suitable sites in the commercial centre.
As to the remaining location strategies, I accept that the existing veterinary clinic has already established and demonstrated a need for veterinary services within this location to service the local community. The site is on a road in a Transport Zone, does not isolate the dwelling from surrounding residential areas and is within easy walking distance to public transport.
One of the location strategies is that the site be a corner lot. Whilst it is on the corner with a laneway that results in a different context to one where a site is at the corner of two streets.
Although the proposal does not re-use an existing non-residential building for a new non-residential use, it does use an existing dwelling in preference to developing a purpose-built non-residential building. The latest building design is more sympathetic to neighbouring dwellings in terms of siting, density, scale, form and style compared with the previous proposal refused in 2022. Car parking at the rear of the site to avoid it dominating the development or street frontage and there are no additional crossovers to the street.
As in the previous proposal, landscaping in the front setback has the potential to enhance the appearance of the site and the locality. The landscape buffers provided along the two boundaries with residential properties are wider this time and allow for the planting of taller growing vegetation to mitigate visual impacts. However, I observe that vegetation rarely assists in mitigating noise and odour impacts.
It is my conclusion that the proposal meets many of these locational, siting and design, and landscaping strategies for non-residential uses in residential areas.
However, it remains the case that the approval of non-residential use on the subject land would create two direct interfaces and one diagonal interface with three residential properties. At present there are no direct interfaces and where a physical separation or buffer is provided by the laneway. I consider approval and removal of the buffer created by the laneway would erode the existing residential character and amenity of these properties and this confined area of NRZ3.
Despite some redevelopment having occurred elsewhere in the Ivanhoe East NAC, there is a clearly defined boundary along the laneway at this edge of the centre which separates the commercial area from the adjoining residential area.
As in 2022, it remains the case today that non-residential uses have not intruded into the adjoining residential areas and there is a clear demarcation between commercial and residential uses. As it affects this edge of the activity centre, the boundary is formed by the laneway and the public car park off Burton Crescent.
The NRZ3 is the most restrictive of all the residential zones and its purposes include to recognise areas of predominantly single and double storey residential development and to manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics. Whilst non-residential uses serving the local community can be contemplated in the NRZ3, approval of such uses can also impact on the character and amenity of those areas and undermine the role of the Ivanhoe East NAC.
I am also not persuaded that the intensity of the proposed use and activity is consistent with residential amenity given the number of staff and the number and turnover of animals on site at any one time.
In my opinion, this creates a level or intensity of activity which will adversely affect the character of this residential area. Whist agreeing with Mr O'Connor that the built form is not unlike what might be expected in any future residential development, the intensity of activity is well beyond what could be reasonably expected in a residential development approved in accordance with the NRZ3 provisions for such development.
It is often the case that in refusing an application, I can give pointers as to what refinements, redesign or scaling back would make a development acceptable. However, I am not able to do that in this case because I consider a veterinary centre in this particular location is not an acceptable outcome when assessed against the full suite of relevant provisions of the Banyule Planning Scheme.
In essence, I have not been persuaded that the proposal represents a net community benefit in the manner required by Clause 71.02-3 of the Banyule Planning Scheme.
[3]
Having regard to all the above reasons, I will therefore affirm Council's decision and direct that no permit is to be issued.
[4]
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all this material will be cited or referred to in these reasons.
[3] At the commencement of the hearing, Mr Crack orally noted two errors in the grounds of refusal. In ground one the word 'inappropriate' should be replaced with the word 'appropriate' and in ground four the word 'order' should be replaced with the word 'orderly'.
[7]
[4] I note that Council submits that 5 trees require a permit for removal pursuant to VPO3. Mr Haydon submits that the number is four (paragraph 40).
Parties
Applicant/Plaintiff:
Denali Nominees Pty Ltd
Respondent/Defendant:
Banyule CC [2024] VCAT 699
Legislation Cited (2)
Environment Act 1987
Civil and Administrative Tribunal Act 1998
Cases Cited (3)
Denali Nominees Pty Ltd v Banyule CC [2024] VCAT 699 (24 July 2024)
I record that parties referred to this being a repeat appeal and made reference to the various principles discussed in a number of cases including Shine Development & Investment Pty Ltd v Stonnington CC[2024] VCAT 139, Zumpano v Banyule City Council[2016] VSC 420, Zumpano v Banyule CC[2015] VCAT 1572, Sprut Pty Ltd v Stonnington CC[2012] VCAT 1675 and Amoco Australia Limited v City of Berwick [1983] 1 PABR 1166-169. In assessing this latest proposal, I have had regard to but do not recite the principles set out in those decisions.
Although I am guided by my findings about the previous proposal, I am required to independently assess the current proposal and reach new conclusions about whether it is now acceptable having regard to the site context, the relevant planning scheme provisions and the particular design.
In refusing to support the previous proposal in Gonopoulos v Banyule CC[2022] VCAT 13, I concluded that:
As also noted in paragraph 24 in Gonopoulos v Banyule CC[2022] VCAT 13, whilst not explicit, the language used throughout clause 15.01-5L-01 is directed at residential rather than non-residential development.
For example, the statement of preferred future neighbourhood character for all areas includes terms such as:
Design site layouts (including basements) with spacing around dwellings that allows for planting and future growth of trees and understorey vegetation to maturity.
Locate secluded private open space behind the line of a dwelling that faces the street.
That emphasis is not surprising given the policy is about residential neighbourhood character, rather than about non-residential uses.
The submissions presented by Mr Chiodo and Ms Eastoe both raised a concern that approval of this proposal would remove a dwelling from the supply of housing around the Ivanhoe East village; and that at a time when there is a housing crisis due to people being unable to access affordable housing well located to places where people work. According to Ms Eastoe, given the prevalence of single dwelling covenants, every dwelling has a role to play in delivering upon the housing growth targets.
Mr Chiodo also submits that the subject land in its current form contributes to the existing supply of residential land within the municipality. While he accepts that approval for a non-residential use does not necessarily equate to the land being used for non-residential uses in perpetuity, the changes made to the building cannot be readily undone to allow the building or site to again contribute to the housing stock. Given the current housing shortage issues, it is inappropriate to remove a dwelling from the supply.
The issues surrounding housing supply and demand are complex and involve governments, corporations and individuals responding to a whole range of influences including, but not restricted to, government policies, macro-economic factors at international, national and state levels, and personal circumstances of existing and potential landowners.
Whilst I accept the proposition that the loss of individual dwellings to non-residential uses may ultimately impact on housing supply, it is the cumulative loss of many residentially zoned sites rather than a single dwelling which is likely to noticeably affect the ability to achieve housing targets.