Victorian Civil and Administrative Tribunal|2006-07-28

Family Matters v Brimbank CC [2006] VCAT 1541 (28 July 2006)

Place of Assembly, Place of Worship with counselling administration and seminars, Industrial 3 Zone, Car parking, Potential on street conflicts

Family Matters v Brimbank CC [2006] VCAT 1541

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

2 Not less than 10 car parking spaces must be provided at all times on the site to the satisfaction of the Responsible Authority.

3 The religious services conducted on Saturdays (2.00pm - 10.30pm) and Sundays (9.00am - 10.00pm) shall only operate provided that not less than 56 car spaces are available during those specified times on the subject site and at 14, 16, 18 and 22 Commercial Place to the satisfaction of the Responsible Authority.

4 Seminars for up to 30 persons may operate between 7.00pm and 10.30pm on any weekday evenings and up to one seminar (between 7.00pm and 10.30pm) which holds between up to 75 persons on any one weekday evening per week provided car parking is available at 14, 16, 18 and 22 Commercial Place and the subject site on a pro-rata basis of 1 car space for each 2 persons attending the seminar at those times to the satisfaction of the Responsible Authority.

5 Not more than 160 persons may be present on the premises at any one time without the written consent of the Responsible Authority.

6 No more than 150 seats within the auditorium may be made available at any one time to patrons on the premises, without the written consent of the Responsible Authority.

7 The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a)

Transport of materials, goods or commodities to or from the land;

(b)

Appearance of any building, works or materials;

(c)

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

(d)

Presence of vermin.

8 Any proposed site lighting, including street lighting, car parking lighting and advertising or business sign lighting must be installed such that it does not project light spillage above the horizontal plane or beyond the subject site to protect the integrity of Melbourne Airport airfield lighting system.

9 Any structure or building activity (eg. construction cranes) on the subject land, either permanent or temporary, must not penetrate prescribed airspace surfaces without approval of Melbourne Airport.

10 This permit will expire if the use is not started within two years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires, or within three months afterwards.

Mr R Hocking, Town Planner. Mr Hocking called evidence from Mr Hancox, Traffic Engineer.

Mr S Vittorio, Town planner. Mr Vittorio called evidence from Mr Robert Clementi, Traffic and Transport Co-ordinator.

1 Family Matters, a religious and community care centre group which provides support to the community and families in life coaching, counselling, seminars and religious observance, wishes to convert a recently constructed warehouse building into a place of assembly comprising place of worship, community care centre and associated offices at 10 Commercial Place in Keilor Park.

2 Brimbank City Council refused the application for permit on the basis that:

•

There was insufficient on-site car parking

•

The is inadequate justification to waiver the car parking requirements in Clause 52.06 of the Brimbank Planning Scheme

•

It will adversely impact on industrial uses by way of overflow car parking

•

It will compromise the objectives and strategies for industry and business in the Brimbank Planning Scheme

•

The use is clearly at its maximum on Sundays when the remainder of this industrial estate is barely operating

•

Car parking has been appropriately provided, with agreements to use the car parking spaces on adjoining sites together with the opportunity to park on-street

•

The use is a nominated use contemplated for consideration in an Industrial 3 Zone

4 The matters for consideration in this review can be confined to whether:

•

The use is appropriate within this zone.

•

The provision of car parking is acceptable for the nature of the proposed use.

5 It is proposed to convert a recently constructed warehouse building into offices, meeting rooms, small seminar areas, an auditorium containing up to 150 persons, counselling rooms together with storage, kitchen facility and on-site car parking for 10 vehicles. Some building alterations will take place by the installation of a mezzanine lobby and an existing roller door at the front entrance will be removed.

6 It is intended to:

•

Operate the office and related administrative functions of Family Matters between 9.00am and 5.00pm on weekdays

•

Conduct religious services on Saturdays (2pm -10.30pm) and Sundays (9am-10 pm) with a maximum patronage of 150 persons

•

Undertake seminars, counselling and meetings with up to 30 persons on weekday evenings with an occasional seminar having up to 75 patrons.

7 Family Matters has arranged with the owners of nearby properties at 14, 16, 18 and 22 Commercial Place to occupy 46 car parking spaces after normal business hours, that is, weekday evenings after 7pm and on Saturdays and Sundays.

8 The subject site is located on the northern side of Commercial Place about 60 metres east of Keilor Park Drive in Keilor Park. These premises are relatively new and form part of a newly developed yet relatively isolated industrial park located between Keilor Park Drive, the Western Ring Road and the Keilor Cemetery. There is a large electricity transmission line bisecting this industrial precinct and the other notable feature is that it is opposite Brimbank Park.

9 Most of the recent industrial/commercial buildings are two storeys or two storeys in appearance. Industrial Drive is a wide industrial standard road with recent landscaping but no footpaths.

10 Access to Commercial Place is from Keilor Park Drive. This involves left turn in, left turn out to Commercial Place or right turn in from the southern side of Keilor Park Drive.

11 The subject site and all surrounding properties are zone Industrial 3 under the Brimbank Planning Scheme. The relevant purposes of the zone are:

•

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

•

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.

•

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

12 A planning permit is required for use of land as a Place of Assembly under Clause 33.03-1 and for buildings and works under Clause 33.03-4 of the Brimbank Planning Scheme. A permit is also required for car parking dispensation under Clause 52.06-1.

13 There are various decision guidelines under Clause 33.03-2 which require an assessment of:

•

The effect that the use may have on nearby existing or proposed residential areas

•

The effect that nearby industries may have on the proposed use

•

The effect of traffic to be generated on roads

•

The effect on nearby industries

14 Matters for consideration under Clause 52.06 include assessment about:

• The availability of car parking in the locality

• Any reduction in carp parking demand due to the sharing of spaces by multiple uses, either because of variation of parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces

• Any car parking deficiency or surplus associated with the existing use of the land

• Local amenity including pedestrian amenity

• An empirical assessment of car parking demand

15 The site is also located within an Airport Environs Overlay Schedule 2. There are various decision guidelines under Clause 45.02. These mainly relate to whether there is to be an increase in the number of dwellings and people who may be affected by aircraft noise. It is noted that Melbourne Airport raised no objection to this application provided a number of conditions were inserted on the permit.

16 There are other local policies and controls of relevance including:

•

Clause 21 Municipal Strategic Statement

•

Clause 65 Decision Guidelines

17 At the review hearing both parties tabled and read from detailed written submissions and called traffic evidence. I was provided with photographs of the subject site and locality, including photos of the site on Saturdays and Sundays. There were also locality plans, layout plans and details of the proposed use tabled. Following the review hearing I undertook an inspection of the subject site and the neighbourhood.

18 I consider the responsible authority has overstated and overemphasised potential problems relating to car parking associated with this proposed use. In addition, I consider the responsible authority has not given sufficient regard to the manner in which this use will operate and I suggest little regard was given to the fact that during a normal weekday operation it will only operate its office and administrative functions and where it does operate at its peak it is at a time when this industrial area is not likely to be affected by car parking conflicts with this or other industrial uses.

19 I also consider the proposal does not offend any purpose of the zone nor applicable planning policy.

20 I consider the occupation of the premises for a combination of administrative counselling, seminars, meetings and religious observants is a reasonable activity in this modern industrial precinct. It will have little, if any, offsite amenity impacts by reason of noise or the activities on site. The only amenity issue for resolution relates to potential for car parking conflict between different uses in Commercial Place. In this regard the applicants have been mindful of their relatively high parking needs for religious services and have addressed this through arrangements with landowners and occupiers and ensuring these peak operating times do not conflict with the industrial and business users.

21 I do not see any undermining of the Council's Industrial Policy or the purposes of the Industrial 3 Zone particularly in the context of this use and this location. The proposed use will occupy a relatively modern building in a contemporary industrial estate. It has good vehicular access to nearby suburbs due to the proximity to Keilor Park Drive and the Western Ring Road. The low key nature of its offices and administrative functions will not compete with other industrial uses during busy weekday times nor are the types of industries which will establish in these premises likely to adversely impact on this use.

22 I note the purposes of the Industrial 3 Zone will serve as a buffer between the more conventional or obnoxious activities in an Industrial 1 or Industrial 2 zone, so this type of use does not conflict with that purpose. If anything, the current use could be said to serve the nearby community. I would suggest it would be preferable to a Residential 1 zone because there is less opportunity for amenity conflicts.

23 I am satisfied that the proposed use falls within the general definition of Place of Assembly which is "Land where people congregate for religious or cultural activities, entertainment or meetings". In this case I consider it is not appropriate to just call it a place of worship which is defined as "Land use for religious activities, such as a church, chapel, mosque, synagogue and temple" because there will be various associated activities including administrative functions, counselling, meetings and seminars, some of which are related to religious observance but others are related to a broader community care program conducted by this organisation. It fits best under the overarching definition of Place of Assembly rather than calling it part Place of Assembly or part Place of Worship and part Offices. This in itself is also a pointer to the manner in which car parking should be assessed.

24 The responsible authority argued strongly that there were inadequate on-site car parking for the proposed use and local streets will not cater for traffic associated with religious observance and that it would exceed off-street parking supply available to visitors, with resulting congestion and safety concerns.

25 By comparison, Mr Hancox had undertaken an inventory of the existing services from the present facility in Avondale Heights and illustrated that the car parking demand on a Sunday was in the about 0.5 car parking spaces per person in attendance. He also provided a detailed park study of parking in Commercial Place on Saturdays and Sundays together with comparisons with weekday operations. This information demonstrated that the premises will be able to cope with all car parking needs during weekday business hours of 9am to 5pm. He advised that where overflow parking is required for religious services or seminars, particularly on weekends, this could be accommodated on the nearby nominated sites at 14, 16, 18 and 22 Commercial Place and within the Commercial Place roadway.

26 I accept Mr Hancox's evidence and I consider it to be preferred to the approach taken by Mr Pearson and verified by Mr Clementi because they applied the ratios in Clause 52.06 and did not adequately take into account the very nature of the operations of this use. The peak parking demand of the use is clearly at the non-peak industrial parking and traffic times for this industrial precinct.

27 Similarly I consider the method chosen by the council of calculating a requirement of 161 car parking spaces for a 150 seat auditorium to be disingenuous and excessive in the least. In addition, the addition of the standard car parking ratio for offices was inappropriate because the offices will not be operating at the same time as the religious services and the seminars. The office will only be operating on weekdays between 9.00am and 5.00pm.

28 The responsible authority also criticised some car parking spaces on the other sites in Commercial Place because they were at the "dead-end" of small driveways and were unsafe. This concern relates to the potential need fore some vehicles to back out of the driveways into Commercial Place roadway. I find this somewhat surprising as this is a recently constructed industrial development and I would have presumed that Council officers themselves would have approved this car parking layout. Presumably the car park lay out is acceptable for employees of commercial and industrial uses but it is not acceptable to church goers!!! In reality a person in one of the end car spaces may require to back out or they may choose to undertake a more awkward manoeuvring movement, but if so, these are relatively short driveways and they would be backing out into a very wide (20 metres) road pavement on a weekend. I find this arrangement is acceptable.

29 I have examined the proposed conditions supplied by the responsible authority and I consider it is inappropriate and unnecessary to apply a Section 173 Agreement. Instead I have imposed new conditions limiting the religious services to those times that car parking is available on adjoining or nearby sites as claimed by Mr Hocking. Similarly I have inserted conditions regarding seminars, generally for 30 persons but allowing for 75 persons on one evening per week maximum.

30 I have retained the maximum number of persons to be present on the premises at any one time at 160 with a maximum number of 150 seats in the auditorium.

31 With regard to Melbourne Airport requirements I have retained two conditions and omitted one, having regard to the lack of any major external alterations to the building bulk or fabric.

32 For the abovementioned reasons the responsible authority's decision is set aside. The responsible authority is directed to issue a permit in accordance with this order. I consider that both the proposed use and the car parking arrangement are appropriate for this place of assembly.

Family Matters v Brimbank CC [2006] VCAT 1541

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Family Matters v Brimbank CC [2006] VCAT 1541 (28 July 2006)

Parties