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[2006] VCAT 945
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-05-19
Original judgment source is linked above.
Aged Care Facility - Flaws - Whether adjournment appropriate.
1. The hearing of Application for Review No. P3132/2005 is adjourned to the 7 August 2006 at 10.00am. Three days will be set aside for the hearing.
2. The Applicant shall prepare amended plans showing the removal of the existing dwelling and a minimum setback from the north western (rear) boundary of not less than 15 metres and any other consequential changes.
3. The plans may be further modified to reincorporate facilities lost by the removal of the existing dwelling.
4. By 31/5/2006 the Applicant must notify all persons who were given notice of the original application that amended plans have been prepared and are available at the Offices of the City of Manningham for inspection.
5. By 31/5/2006 the Applicant must serve a copy of the amended plans on the Tribunal, all referral authorities, and on all objectors who submitted a Statement of Grounds in respect of the original application.
6. Any further exchange of witness statements must take place in accordance with the requirements of the Tribunal's Practice Note No. 1.
Mr C.J. Canavan QC with Mr N. Tweedie of Counsel, instructed by Deacons, Solicitors.
Application under s 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.
Aged Care Facility, earthworks and removal of vegetation.
Manningham Planning Scheme - Low Density Residential Zone
- Significant Landscape Overlay - Schedules 1 & 2
1 The review site is situated on the northwest corner of Newmans Road, Templestowe, close to the Heidelberg-Warrandyte Road. It has a frontage of 58m, a depth of 136m and a total site area in the order of 8000m2. The land slopes down to the northwest corner and has a crossfall of approximately 9m. It contains a vacant single storey dwelling, inground swimming pool, outbuildings and a separate garage.
2 The land contains a mix of vegetation including established trees and mature shrubs. Very little of this vegetation can be said to be of high quality, much of it being affected by recent drought conditions. A windrow of pine trees (pinus radiata) extends along the south-western boundary. This adjoins a 20m wide pipe tract which is cleared, open land managed by Parks Victoria. A formal asphalt driveway extends along the north-eastern boundary and this provides access to several dwellings which carry Newmans Road addresses.
3 Housing in the neighbourhood is generally substantial. Further to the southwest, across the pipe track, several large dwellings are located on allotments with areas of around 4000m2. These dwellings have frontage to Cottonwood Court. Directly to the northwest is a large two storey dwelling occupied by the Tremewen family. This dwelling has a pool, pool shed and a large area of private open space including a tennis court with night lighting facing the rear boundary of the review site. The Tremewen family gains its access from O'Brien's Lane. In a report prepared by Mr A. Biacsi, Town Planning Consultant, the urban context was described in the following way:
The site is located within an area generally characterised as low density having regard to the relatively large sized allotments. I consider that the site itself being situated at the edge of the Low Density Residential Zone is in a location that marks the transition between the more pronounced low density environment extending northerly and the more traditional suburban housing that exists to the south.
It is evident that the area supports to varying degrees large lots with large dwellings and associated improvements. Vegetation is concentrated in particular areas with the density of vegetation more pronounced in some parts than others. Built form in the area, particularly in recent times has the appearance in a number of notable cases of large, bold and very prominent buildings set in relatively stark surroundings.
Topography in the area can be broadly characterised as gently undulating with pockets of vegetation in the valleys, along the watercourses and in certain elevated locations being a noticeable feature. That is not to state that vegetation is necessarily an overly dominant characteristic but that in combination with the sloping land and the spaciousness of some of the larger lots creates a sense of landscape interest not found in more traditional residential environments.
4 At the commencement of the hearing the applicant sought leave to substitute amended plans to replace the plans that had accompanied the original application. The amended plans had been circulated to all parties prior to the hearing in accordance with the Tribunal's Practice Note. There was no objection to the substitution and accordingly leave was granted.
5 Mr Biacsi described the amended proposal as follows:
The plans provide for the construction of a building with a height of generally between 2 and 3 storeys (with provision for a semi-basement towards the western end of the development). It is proposed to retain and convert the existing single storey building on the land and to construct a new building behind and extending to the west of the existing building.
The plans of the development generally provide for the following components:
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Use of the land for an Aged Care Facility (Nursing Home) comprising 85 bedrooms (providing for a total of 109 beds) with provision for 49 car spaces.
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Retention of the existing dwelling (with floor level FL 88.70) and its adaption as part of the overall integrated aged care facility.
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Development of a new building with provision for:
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A basement level (FL 82.20) at the western end of the site to accommodate 32 car spaces, laundry, staff facilities and plant/service areas.
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A ground floor level (FL 85.5) that extends from the rear of the existing dwelling westerly and sits above the basement level. This floor will accommodate 40 bedrooms (30 single & 10 double), dining, lounge and other communal facilities, administration facilities, nursing facilities and an ambulance bay.
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A first floor level (FL 88.70) that is at the same floor level as the existing dwelling and extends westerly and will sit above the levels below it. This level accommodates 27 bedrooms (19 single & 8 double), dining, lounge and other communal facilities, nursing and administration facilities, the main entry lobby, kitchen and storage areas and an enclosed loading bay.
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A second floor level (FL 91.90) that is centrally positioned within the site commencing behind the existing dwelling. This level provides for 18 bedrooms (12 single & 6 double), dining and lounge facilities, other communal facilities food preparation area and other ancillary areas.
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The height of the external walls of the proposed building tend to vary between 4.1m and 10.1m whereas the overall maximum height of the building to its highest point is in the order of 11.5m.
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The building is to incorporate pitched roof elements and flat roof sections to assist to create a sense of stepping the height of the building and to break up the roof massing.
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The building is highly articulated with variable setbacks to side boundaries which at the uppermost level (Level 2) vary from 8.5m to the north, 18m to the south, 51.9m to the east (Newmans Road) and 45.6m to the west.
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The building is of a contemporary architectural style using a combination of materials and design cues that have drawn reference from the local area.
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Vegetation is proposed to be removed as part of the proposal and this is addressed in the Arborist's Report and Landscape Report and Concept Plan that accompanies the proposal. The majority of the existing pine trees that form the row along the southern boundary are to be retained.
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The Landscape Concept Plan details the proposed landscaping treatment for the site which includes the retention of some of the existing planting that is to be supplemented by substantial new planting. An extensive communal courtyard area is proposed on the north side of the building together with other passive open space areas within the development.
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Excavation of certain parts of the land by up 2.5m will be required to facilitate the changing levels of the site and building.
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Access to and from the site is proposed via the existing semi-circular driveway off Newmans Road. Access and car parking requirements and the traffic implications of the proposal are addressed in the Traffic Report accompanying the proposal.
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The proposed development is to be sewered in accordance with the relevant authority's requirements. An underground pumping plant is to be constructed in the south-west corner of the building which will connect the sewerage services to the existing reticulated system in Newmans Road.
6 The original application was advertised and attracted 31 objections. The Responsible Authority summarised these in the following way:
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Loss of mature vegetation.
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Pine trees are an integral part of Templestowe's character and a welcome reminder of its fruit orchard heritage and should not be removed.
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The proposal will result in the loss of the features of the area that attracted people to this area.
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The proposal will have noise impacts that will disturb the peace.
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The building will have a detrimental impact on the landscape.
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The building will have a stark appearance for a long period until the planting is properly established.
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The building height is excessive.
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The building has inadequately small setbacks.
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The building has an unacceptable continuous built form along its western boundary.
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There is no pedestrian crossing.
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The proposal is inconsistent with 22.04 of MPS as it is not located adjacent to commercial facilities.
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The road is narrow (cars parked on the road will create traffic flow problems).
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There is a history of accidents at this intersection.
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It is dangerous to turn right from Newmans Road onto Heidelberg Warrandyte Road at the present time (without a large development).
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This intersection is known as a black spot.
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Poor amenity for future residents as there is no pedestrian path.
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The screening of windows reduces internal amenity.
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Loss of privacy/overlooking.
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Impact of lights.
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Overlooking of POS (including swimming pool) of 38 O'Brien's Lane.
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The value of the zoning of the land will be undermined.
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The proposal is inconsistent with the provision of the Low Density Residential Zone.
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The boundaries of the Low Density Residential Zone are clearly defined by the Road.
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Planning precedent for Low Density Residential Zone areas.
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High density activity within a low density zone contradicts purpose of why this zone was established in this area.
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Degradation of area through knock on effects.
7 The Responsible Authority's delegate resolved to refuse the original application on the following grounds:
1. The proposed development is contrary to Clause 19.03, 21.03, 21.05, 21.13, 22.01, 22.04 and 52.17 of the State and Local provisions of the Manningham Planning Scheme because the building would dominate the landscape and be detrimental to the neighbourhood character of the area.
2. The proposal will result in an overdevelopment of the site due to the excessive site coverage and impervious site area, inadequate setbacks and inappropriate building height.
3. The proposed development is inconsistent with the objectives of the Low Density Residential Zone because of its scale and the level of activity generated.
4. The proposed development is inconsistent with the decision guidelines of the Significant Landscape Overlay, Schedule 1 because it requires extensive clearing of vegetation, proposes a building which would dominate the area due to its scale and because of the lack of significant landscaping opportunities.
5. The proposed building will have unreasonable amenity impacts on the adjoining property to the north-west due to visual bulk and loss of privacy.
6. The proposal will be detrimental to the amenity of the area because it will impact on the landscape quality, the attractive neighbourhood character and the low density, semi-rural feel of the locality.
7. The increase in activity levels associated with staff traffic movements and service vehicles will be detrimental to the amenity of the adjoining and nearby properties.
8. Council remains unconvinced that the proposed vehicle access for the scale of facility in this location is appropriate.
9. The proposal is inconsistent with Clause 22.04 of the Manningham Planning Scheme because pedestrian access to and from the site, particularly to the small shopping strip to the south-east is unsuitable.
10. The windrow of pine trees to be removed has been identified in Council's Pine and Cypress Study as having high landscape and heritage significance.
8 The amended plans seek to address the grounds of objection and refusal.
9 On the first two days of hearing the Tribunal heard submissions from Mr Montebello on behalf of the Responsible Authority and Mr Dwyer on behalf of the objectors. Mr Dwyer called evidence from Ms V Jackson, a Town Planning Consultant, who read from a written statement of evidence. Mr Canavan QC who appeared with Mr Tweedie of Counsel for the permit applicant also made submissions and called evidence from Mr A. Wyatt, a Landscape Architect, who read from a written submission. Prior to the commencement of the second day of hearing the Tribunal conducted a very thorough inspection of the review site, the surrounding properties, other sites where nursing home facilities have been either approved or rejected, and a general drive around to establish the type of neighbourhood character involved. This inspection has served to confirm the submissions made by the parties during the course of the hearing.
10 Prior to the hearing the following additional statements of expert evidence were received by the Tribunal and read by both members:
For the Applicant
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Mr A. Biacsi, Town Planning Consultant
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Ms D. Donald, a Traffic Engineer
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Dr A. Howe, a Consultant Gerontologist.
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Ms M. Lefebure, the CEO of the Age Care Association of Victoria Ltd.
11 However, in answers to queries from Mr Canavan QC at the conclusion of the second day of hearing, the Tribunal advised that it had reservations regarding some fundamental aspects of the proposal. The inspection had revealed that the Tremewen property to the northwest, would be seriously affected by the proposal in its present form. Whilst emphasising that the Tribunal had not reached any concluded view on this or any other aspect, it queried whether the retention of the existing dwelling did not amount to a serious constraint to the ultimate development of the site.
12 At the commencement of the third day of hearing discussion took place as to the best means of proceeding further. Mr Canavan indicated that he would be content if the Tribunal adjourned the matter to enable the preparation of amended plans. The parties ultimately agreed that it may be helpful to hear from the Tribunal as to the preliminary views that it had formed. These were provided by the Tribunal and, with some minor corrections, are now repeated below:
13 "We accept that the Council's Policy Framework sets a preference whereby institutional uses such as this should be located in the urban areas. We also accept that, for the purposes of the planning scheme, the review site is in an established urban area, not a non-urban area.
14 However, this does not entitle the responsible authority or the Tribunal to treat the policy framework as tantamount to prohibition. The proposal falls within Section 2 and the discretion must be exercised having regard to Council's relevant factors (see for example the decisions in):
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Main Street Property Pty Ltd v Banyule CC (unreported decision, P441/2003, 6 October 2003;
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Altostruct Pty Ltd v Manningham CC [2001] VCAT 243.
15 We also accept that, as institutional uses of this kind are discretionary, and their built form is larger and likely to be more prominent than single dwellings, such buildings are likely to comprise a component of neighbourhood character. We note however that the Low Density Residential Zone supports many very large single dwellings, and much of the nearby housing could by no means be described as "modest".
16 The issue of "need" has not been contested. We stand by the comments of the Tribunal in Lineus May Pty Ltd v Stonnington CC (1998) 22 AATR 248. The shortfall in nursing home beds in Manningham is a serious planning issue and one which the Responsible Authority will need to address. Applying the decision of Osborn J in Knox CC v Tulcany Pty Ltd (2003) 18 VPR 29, we accept that "need" cannot override all other relevant considerations, but is relevant in assessing "net community benefit". In the present case, there are several factors which weigh heavily in favour of granting a permit, provided the development is well planned and properly designed. Those factors include:
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the fact that the site is twice the permissible minimum lot size for the LDRZ;
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that it partly faces a road in a Road Zone Category 1;
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it is bounded on one side by a 20m wide pipe track and on the other by a large paved driveway;
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that much of the vegetation on the site is in relatively poor condition. Some of it is senescent and the site contains a proliferation of environmental weeds. We have very little concern regarding the removal of vegetation located internally within the site. Our concern is directed more towards vegetation around the periphery. We will return later to that question.
17 We think the critical issue concerns the way the development would relate to the Tremewens' dwelling. On the one hand, the Tremewens cannot reasonably expect the review site to remain vacant. If this application does not proceed, it is distinctly possible that the site would be subdivided into two lots with a dwelling erected on each. Like most of the newer surrounding housing, these dwellings are likely to be substantial. It would be quite possible for a two storey dwelling to be erected with a setback similar to the present proposal. However, in all likelihood, such a dwelling would not extend for the same length as the nursing home proposal, and would thus have a lesser effect on the Tremewens' dwelling and outdoor living areas.
18 If a building of an institutional nature is to be constructed, we believe it to be appropriate for the Tremewens to retain an outlook somewhat similar to that they presently enjoy, namely, one of layered vegetation. This could be achieved, we believe, if the setback to the rear boundary was not less than 15m. This would provide an opportunity to supplement existing vegetation with additional canopy trees. We believe this to be at least an equivalent outcome to the likely scenario posed by a conventional subdivision and development.
19 We do not believe that the properties of the other objectors will be detrimentally affected by the present proposal. The Stoltenberg dwelling will have a separation in the order of 50m, and its own excellent planting program already masks the review site. The dwellings on the other side, the Newmans Road properties, are also well separated and will not suffer any direct loss of amenity. We do not accept Ms Jackson's evidence on this issue. The fact that distant glimpses of the building may be available is not of itself, sufficient to deny a permit (see for example Rowcliffe Pty Ltd v Stonnington CC & Anor (No.1) (2004) 16 VPR 9).
20 The existing dwelling acts as a formidable site constraint. It is set back between 34 and 39 metres from Newmans Road and the site falls around 2m over that distance. If the rear setback was increased by a further 6-8 metres, and this distance was subtracted from the existing front setback, we believe a development of the type envisaged could comfortably be accommodated and have a negligible impact on the amenity of other dwellings. This however would require the removal of the existing dwelling and its replacement with a more contemporary structure.
21 We return to the question of the windrow. We accept that there are good reasons to retain the pine trees, among them, their cultural/heritage value and their capacity to screen the development from the south-west. On the other hand, the trees have a limited life span and their appropriateness in a residential setting catering for the frail aged is highly questionable. If they are to be retained, we would anticipate a condition requiring that they be subject to a maintenance program including, in some cases, significant tree pruning and limb removal. Such a program would, of necessity, need to be ongoing.
22 That said, in terms of net community benefit, we would not wish to be faced with a choice of, on the one hand, protecting the pine trees against, on the other, protecting the frail aged in our community. The choice is, we trust, obvious to all concerned."
23 Following the delivery of these interim reasons, the matter was stood down to enable the parties to obtain instructions from their clients. Perhaps with some reluctance, Mr Dwyer and Mr Montebello agreed that it would be preferable to adjourn the matter to enable the preparation of amended plans. Mr Montebello made a number of points which, he submitted, should be taken into account in any attempt at redesign. Briefly these were:
a
The impact of the development on the adjoining pipe track deserved closer examination as it was effectively an area of public open space.
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It was questionable whether the outcome of the conventional development of the review site would accord with the Tribunal's observations.
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The inclusion of the third storey of the development remained a design issue.
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The evidence of Ms Lefebure and Dr Howe on the question of viability remained untested by cross-examination.
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There were different levels of expectation involved between on the one hand the Residential 1 Zone, and on the other the Low Density Residential Zone.
24 While we note Mr. Montebello's comments, it is pertinent to observe that any view of the review site from the area of the pipe track will be masked by the very thick screen of vegetation provided by the windrow. As to the question of viability, that is closely linked to the issue of need. Mr. Montebello has made it clear that the council does not contest the issue of need. Matters relating to built form are clearly highly relevant to the ultimate outcome of these proceedings.
25 As the Tribunal emphasised at the hearing, requiring amended plans to overcome a fundamental problem does not offer any guarantee that a permit will ultimately issue. In the Tribunal's words, the amendments are a necessary but not sufficient condition along the path to a proper review of the council's decision. If any doubt exists on this point, one need only to review the events in Rowcliffe Pty Ltd v Stonnington CC (No. 2) (2004) 17 VPR 130 where the Tribunal, having offered the permit applicant an opportunity to amend a proposal, later refused to approve the modified version. Nor is that by any means an isolated case.
26 The short point to be made is this: to continue to hear evidence on a proposal which has an obvious but correctable flaw would be wasteful of the resources of all the parties concerned. The Tribunal rejects the notion that the objectors are being put to unnecessary additional expense. In fact, it believes the contrary to be the case.
27 In inviting amended plans, the Tribunal has avoided any temptation to be prescriptive. Moving the building forward will clearly change the levels and hence affect issues of overall height, visibility and the like. Any such changes will need to be carried out with due care and sensitivity. Consequential changes that improve the proposal may well be desirable.
28 For all the foregoing reasons, the Tribunal adjourns the matter in accordance with the directions set out at the commencement of this interim determination.
Fifth Linstock Nominees Pty Ltd
Manningham CC [2006] VCAT 945