Victorian Civil and Administrative Tribunal|2006-09-14|Before: Planning P

Dingli v Hobsons Bay CC [2006] VCAT 1876 (14 September 2006)

Application under S. 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit. Industrial 1 Zone. Non industrial use in an Industrial zone.

Dingli v Hobsons Bay CC [2006] VCAT 1876

The decision of the Responsible Authority is set aside.

The Responsible Authority must issue a permit for the use of the land for the purpose of dancing school and music studio and the construction of and carrying out of works including a mezzanine floor at Factory 2, 20-24 Tennyson Street, Williamstown North subject to the following conditions:-

1. Before the use and development starts amended plans (three copies) shall be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:

a) Provision of at least five tandem carspaces in addition to the five carspaces provided.

Once approved these plans become the endorsed plans of this permit.

2. The layout of the site and the use of the site as permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3. The use may operate only between the following hours:

•

Dance Studio and music tuition - 9am to 10pm Monday to Sunday

•

Music studio/sound recording - Monday to Sunday 2pm to 12 midnight

unless otherwise consented to in writing by the Responsible Authority.

4. The number of employees/staff members on the premises at any one time must not exceed five (5) persons without the consent of the Responsible Authority.

5. The number of patrons on site at any given time is not to exceed 50 persons without the consent of the Responsible Authority.

6. The owner, the occupier and the manager of the premises must make reasonable endeavours to ensure that people associated with the site do not create a nuisance and annoyance to neighbours or otherwise disturb the amenity of the area.

7. Music emanating from the premises must comply with the State Environment Protection Policy N-2 'Control of Noise from Public Premises'.

8. The site must be kept in an ordered and tidy state and its appearance must not prejudicially affect the amenity of the area.

9. Before the use begins, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

a. Constructed to the satisfaction of the Responsible Authority.

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

c. Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority.

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

e. Line marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

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

10. Prior to the use allowed by this permit starting, landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained to the satisfaction of the Responsible Authority.

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

a) The use is not started within 2 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.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1) (b) of the Planning and Environment Act 1987.

Ms Lorraine Stupak, Town Planner of LS Planning P\L

1 This is an application under Section 77 of the Planning and Environment Act for review of a decision by Hobsons Bay Council to refuse permission to use a factory for a dance school and music studio at 20-24 Tennyson Street, Williamstown North.

2 The Responsible Authority issued a Notice of Refusal to Grant a Permit with the following reasons:

I.

The proposal does not meet state planning policy, particularly the industrial objectives of Clause 17.03 of the Hobsons Bay Planning Scheme.

II.

The proposal does not meet local planning policy, particularly Clause 21.09 (Industry) and Clause 22.02 (Industry) of the Hobsons Bay Planning Scheme.

III.

The proposal is inconsistent with the objectives of Clause 33.01 (Industrial 1 Zone) of the Hobsons Bay Planning Scheme.

3 The review site is located on the northern side of Tennyson Street, opposite the intersection with Southey Street. The site is rectangular and relatively flat. A factory is currently under construction on the land; one of a group of five factories approved under Planning Permit No P04.255.

4 The factory (known as Factory 2) will have a ground floor area of 335 square metres and a height of some 7 metres. A loading bay is shown within the building. Five carspaces are provided in front of the building together with a reversing bay accessed via a shared driveway to Tennyson Street.

5 Surrounding land is used for industrial purposes including a range of manufacturing industries, warehouses and motor vehicle repairs.

6 It is proposed to use the factory as a dancing school and music studio. Details of the use are as follows:

• Ground floor to be used as two dance rooms (which can be opened into a larger area), office area, toilets, change room and showers and a foyer/waiting room.

• First floor level to be used for a live room, control room, vocal booth, two music tuition rooms and a powder room.

• Hours of operation are: Dance school and music tuition - 9am to 10pm Monday to Sunday; Music studio/sound recording - 2pm to 12 midnight.

• Number of staff would not exceed 5 at any one time.

• The dance school will run two shifts of classes. One during the day with the main one after school hours where is anticipated approximately 50 students would attend

• Music tuition would be by appointment with one teacher to one student generally from 4pm to 10pm.

• The sound recording studio will be available for hire by individuals and groups to record music and would employ a maximum of 2 staff.

• The office to be used by a part time receptionist and a talent agent generally between the hours of 9am and 5pm.

• Construction of a mezzanine floor and sound proofing of the ceiling and walls of the factory is to be undertaken.

• Onsite carparking comprises 5 spaces approved as part of the factory development.

7 The review site is zoned Industrial 1 under the Hobsons Bay Planning Scheme. (the 'Scheme'). The site is not affected by overlays.

8 A dancing school is included in the definition of indoor recreation facility which is nested under the definition of leisure and recreation. This use is a specified Section 2 use in the zone and thus subject to a permit. Decision guidelines are provided at Clause 33.01-2 of the Scheme. A music studio is an unspecified use under the Scheme and is subject to a permit in the zone as an unspecified Section 2 use.

9 The buildings and works proposed include construction of a mezzanine and installation of sound proofing. Ms Stupak indicated that no permit is required for the buildings or works since it was proposed to alter plant without increasing height or area and an exemption applies under Clause 33.01-4 of the Scheme. I agree that the sound proofing is exempt from the need for a permit but on examining the controls following the hearing, I find that the proposed mezzanine, which clearly adds additional floor area, is subject to a permit . Decision guidelines at this clause are thus relevant.

10 Clause 52.06-1 of the Scheme requires that a new use must not commence or the floor area of an existing use must not be increased until the required number of carspaces have been provided on the land. Neither dancing school nor music studio are listed in the table at Clause 52.06-5 and as such an adequate number of carspaces must be provided to the satisfaction of the responsible authority in accordance with Clause 52.06-1.

11 The decision guidelines at Clause 65 are relevant.

12 The relevant clauses of the State Planning Policy Framework are 11, 12, 14, 15 and 17. The relevant clauses of the Local Planning Policy Framework are 21 and 22.02. Reference documents at Clause 22.02 are relevant and include Industrial Land Management Strategy, 1997 and Hobsons Bay Industrial Land Use and Development Guidelines, 1997. I was also referred to the document Hobsons Bay Industrial Land Management Strategy February 2006.

13 The parties at the hearing relied on both written and oral submissions and a number of photos, plans and other documents were tendered to the Tribunal. I inspected the site and environs following the hearing.

14 It was common ground between the parties that there was no built form issues (since the factory building has been approved and there is no significant external alteration proposed). There was also no dispute about carparking provision. In this regard I note that a Traffic Engineering Assessment prepared by Traffix Group dated March 2006 was submitted with the application for permit. This report concluded that peak use of the premises will result in reliance on street parking but parking surveys indicate that there is sufficient carparking available on street in the immediate vicinity of the site without adversely affecting the availability of car parking for others. A number of suggestions in terms of layout were also made. Mr Waldon advised that Council did not contest the application in relation to parking. I place significant weight on Council's acceptance of the carparking provision and will only address this matter in relation to appropriate conditions.

15 From the matters raised in the submissions I consider there are two critical issues which must be addressed in reaching a decision in this application and these are as follows:

•

The loss of industrial land to non industrial uses.

•

The impact of non industrial use on industrial viability.

The loss of industrial land to non industrial uses.

16 The loss of industrial land to non industrial uses is a concern to Council on both a strategic and local basis. The value of industrial land in this area relates to provision of employment, both regionally and locally, and its excellent access to the State's main road system, to railways and the airport. State and local planning policy are consistent in seeking to ensure availability of land for industry and avoiding approval of non industrial land uses which will prejudice that availability.

17 The Hobsons Bay Industrial Land Management Strategy 1997 (the 'Strategy') is a reference document. It addresses land management issues in the various industrial precincts and recommends objectives for each. The subject site is part of the Williamstown North precinct spanning Kororoit Creek Road between the Mobil refinery and The Range residential estate. It is in three parts with the review site being in the area north of Kororoit Creek Road and west of Maddox Road. The report states in regard to this area:

This is one of the most disgraceful industrial estates in the western region. The apparently uncontrolled land use in the area presents a depressing site that is completely at odds with the Council's strategic intentions for industry in the municipality. The area contains many sites littered with piles of junk, derelict vehicles, rubble and rubbish which frequently spills onto the nature strips, footpaths and road pavements. The area is virtually devoid of landscaping. The image presented is one of dereliction, neglect and failure.

18 This blunt description is not totally borne out by my inspection of the area. Clearly some redevelopment and cleaning up of sites has occurred in the nine years since 1997. However there are certainly sites which are vacant, underutilised or used as apparent junk yards.

19 Both the Strategy and the Hobsons Bay Industrial Land Use and Development Guidelines 1997 (which is also a reference document) state that the precinct as a whole is suited to small to medium size industries, office/warehouse operations and small service industries including motor vehicle repairs and panel beaters. Objectives include encouraging 'high-tech' and start-up enterprises, providing for smaller enterprises, improving the appearance of the area, ensuring that the amenity of the area is respected and ensuring adequate off street parking is provided.

20 Both these documents state that the City already has a substantial supply of smaller serviced industrial lots. There is no specific guidance in these reference documents as to type of uses which are considered appropriate other than avoiding inappropriate uses where sites are near residential land. uses.

21 Mr Waldon referred me to a revised strategy 'Hobsons Bay Industrial Land Management Strategy' February 2006 (the 'revised Strategy') which is a review of the 1997 Strategy. This document was prepared in response to the release of Melbourne 2030 and changing land uses in a number of the City's industrial areas. It states that Council must protect 'appropriate' industrial land and identifies a number of threats including the following:

• Unplanned and mismanaged change adversely impacting on existing industrial, commercial and residential uses in the City.

• The pressure on existing industry from the encroachment of new commercial and residential growth.

• Once an area has changed from industrial activity, it is difficult to revert back to an industrial use.

22 This revised Strategy includes a classification system to indicate the future role and function of each of the City's industrial precincts. The review site is included within a 'Secondary Industrial Areas' category. This category designates smaller concentrations of industry which will continue to be of strategic importance to Hobsons Bay in terms of local economic development and employment. The areas are identified to cater for a wide range of small to medium businesses, which supply both industrial and domestic markets and it is stated that non industrial protrusions into these areas will not be supported. The strategy detail includes developing a local policy that documents the role and function of each industrial precinct and provides guidance in relation to permitted land uses.

23 The weight I give to the revised Strategy must be limited. It has no reference status in the Scheme and I was not provided with details as to its progress in terms of public consultation or Council adoption. Ms Stupak advised that the document had been in preparation for over two years, had changed considerably from the original draft and was very contentious amongst different groups in the community. Mr Waldon agreed that the revised Strategy could not be considered as a seriously entertained planning proposal.

24 Despite its limited status in I find some findings in the revised Strategy particularly relevant to this review. These include the following:

• There is an oversupply of industrial land in Williamstown North.

• Approximately 25% of land zoned for industrial use in the City is currently vacant.

• In a metropolitan context there is sufficient industrial land in the west and north regions to meet expected demand for at least 25 years, having regard to past take up rates and the zoned land identified as vacant.

25 It is clear that the thrust of policy relating to industrially zoned land is to ensure that is remains available for industrial use. However it is also apparent that the Industrial 1 zone allows for a wide variety of uses indicating that uses other than industry are specifically contemplated in the zone. Uses expressly provided for in Section 2 include Education centre, Leisure and recreation, Office, Place of Assembly and a range of unspecified uses not included in section 1 or 3.

26 I also found it relevant that Ms Stupak identified a number of non industrial uses in the precinct including an indoor children's playground in Chelmsford Street and a Fitness centre/gym in Kororoit Creek Road.

27 From the information before me in this review I am satisfied that there is justification for allowing the proposed non industrial use in this location. I base this decision on the following key points:

• The use proposed will not transform the structure to such an extent that future use for industrial purposes would be prevented.

• There is nothing presented to me to indicate that the proposed use would adversely impact on the operation of any nearby existing or proposed warehouse and industrial land uses.

• Acknowledging the purpose of the Industrial 1 zone relates to industry does not preclude non industrial uses which are clearly contemplated in the table of uses.

• There is a mix of uses in the area and whilst that may not be the direction Council seeks to pursue in the Industrial 1 zone, it cannot be ignored. The revised 2006 Strategy needs to have some statutory status to be useful as a basis for refusing proposals which are clearly contemplated in the table of uses to the zone.

• Clear evidence that alienation of the industrially zoned land in this area would result in a supply shortage of such land has not been presented to me. I asked Mr Waldon if he had information regarding current supply and demand for industrial land. Unfortunately he was unable to provide any current information. I thus rely on my observations of the area which show there are a number of vacant site sites in this industrial area together with many underutilised sites together with the findings of the recent 2006 Strategy which suggests that there is an oversupply of industrial land in Williamstown North.

• The use would be suitable in an activity centre and I acknowledge that the State and Local policy would support such location with its obvious advantages of proximity to other community facilities and public transport. I also recognise the difficulties of finding suitable sites for this type of use in activity centres in terms of both a physical space and parking provision. I note that the Council report on this application acknowledged that whilst location of this type of use in a Business 1 zone or Activity Centre is preferable, this is not always possible or practical, and the availability of suitable sites with provision for carparking in Williamstown is particularly limited.

28 Mr Waldon advised me that Council would be guided by the Tribunal's decision on this application in determining future applications for non industrial uses in industrial zones. I make it clear that this application has been determined on its merits having regard to the nature of the use and the ease of conversion of the building to industrial use in the future. The need to protect industrial zones for industrial uses is entirely appropriate and encroachment of non-industrial uses can have undesirable impacts in terms of conflicts between land uses and impacts on property values. That is recognised by the policy at Clause 17.03 and a blanket approach to disregarding this important policy basis is inappropriate.

The impact of non industrial use on industrial viability

29 Mr Waldon drew my attention to the State Planning Policy in relation to industry which states at Clause 17.03:

Industrial activity in industrial zones should be protected from the encroachment of unplanned commercial, residential and other sensitive uses which would adversely affect industry viability.

30 It was submitted that the intended use has the potential to adversely affect nearby industry due to conflict between uses. It was put to me that the dancing school and music studio may be disturbed by noise, vibrations and other emissions from nearby industry giving rise to complaints. Each non industrial use in the area would add to a cumulative effect of making it difficult for industry to operate.

31 The argument here is that non-industrial uses are more sensitive and their presence in an industrial area will constrain viability of industries. I agree that the use proposed is more sensitive than an industrial use and there may be potential for conflict between uses. However I note that there are several factors which mitigate against this occurring as follows:

• The applicant intends to sound proof the building and clearly for a recording studio such work needs to ensure no outside noise will penetrate the building. This means that noise from other uses will not be disturbing to the business.

• A significant proportion of the hours of operation of the music studio and dancing school will be after normal business hours of industry including evenings and weekends, where any issues arising from noise, smell or overflow parking generated by nearby uses will not be a concern.

• The applicant is fully aware of the industrial zoning and surrounding land uses in choosing this site. In this situation there must be some expectation and acceptance of a lower level of amenity and indeed, this to some extent, is the trade off in locating in an area where neighbours are less likely to complain about the applicant's activities.

32 Draft conditions were not circulated prior to the hearing and nor were they presented at the hearing. An emailed copy was provided to the Tribunal and the applicant subsequent to the hearing. The Tribunal received email correspondence from Ms Stupak on 23 August 2006 (with copies sent to other parties) advising of no objection to the draft conditions except in relation to Condition 3 which restricts the maximum number of staff to 5. Ms Stupak indicated that although there will be no more than 5 staff present on the premises at any one time, the total number of staff would exceed this number. She requested that the condition be reworded to accommodate a maximum of five staff at any one time. I received no subsequent correspondence from Mr Waldon or Council on this matter.

33 I find that a change in Condition 3 is acceptable to allow for a maximum of five staff at any one time. This will ensure there are no unconsidered carparking implications generated by a greater number of staff yet allow for the flexibility in total staff numbers.

34 In relation to other conditions I find them satisfactory except for two matters as follows:

• The preamble should include reference to use and development since construction of a mezzanine is part of the proposal.

• The carparking should be altered to provide for tandem carparking generally in accordance with the recommendations of the Traffic Engineering Assessment prepared by Traffix Group dated March 2006. This should include a minimum of 10 carspaces (allowing for the maintenance of the reversing area) of which 5 will be in tandem. On the basis of the Traffix report this provision will ensure the bulk of the parking demands of the use are accommodated on site. I note that the Traffix report referred to six onsite carspaces and the addition of six tandem carspaces. This includes the area designated as reversing area on the plans approved as part of the factory development. As the conditions were not available for discussion at the hearing, I have not heard submissions on this matter. I am not satisfied that this reversing area can be converted to carparking without prejudice to the provision of turning area for loading and unloading vehicles using the adjoining factory and will therefore not include this in the conditions. If Council is satisfied that the reversing area is not required then the applicant may choose to lodge an amended plan seeking secondary consent for a change in carparking layout which could provide for 6 carspaces and 6 tandem carspaces.

35 For the reasons outlined above the application for review is allowed and I will order that a permit issue subject to conditions.

Environment Act 1987

Dingli v Hobsons Bay CC [2006] VCAT 1876

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Dingli v Hobsons Bay CC [2006] VCAT 1876 (14 September 2006)

Parties

Legislation Cited (1)