Victorian Civil and Administrative Tribunal|2009-04-03

Finescape Pty Ltd v Greater Geelong CC [2009] VCAT 582 (3 April 2009)

Greater Geelong Planning Scheme, Use of a Function Centre in a Farming Zone, Compatibility with Agricultural Uses, Adjacent sensitive waterways and sand dunes, Visual bulk and scale of proposed building.

Finescape Pty Ltd v Greater Geelong CC [2009] VCAT 582

Use and development of land in the Farming zone for a replacement dwelling and 120 person function centre, and a liquor license and partial waiver of carparking.

In accordance with the endorsed plans and subject to the permit conditions set out in Appendix A.

It is ordered, pursuant to Section 149(1) (a) of the Planning and Environment Act 1987 that the Responsible Authority must not endorse the plans, marked 'Proposed Residence' and dated 1 April 2008 as satisfying the requirement under Condition 4 of permit 926/2005/A.

The use and development of a Place of Assembly, six person Bed and Breakfast and dwelling in one building, a liquor licence and waiver of carparking.

P3595/2008 - Section 149 Planning and Environment Act 1987

Cl35.07-4 Buildings and works for section 2 use

PS605408. Land area 1.414 ha with dimensions of 130m x 108m approx, containing a dilapidated heritage listed cottage, a weatherboard dwelling and other outbuildings, and orchard. The site is located on Breamlea Road, a short distance northeast of the Breamlea township between Torquay and Barwon Heads.

An inspection of the site and surrounding area was undertaken on 21 March 2009.

The first application is to seek review of a Notice of Refusal to Grant a Permit issued by the City of Greater Geelong for the use and development of the land as a Place of Assembly, six person Bed and Breakfast and dwelling in one building, a liquor licence and part waiver of carparking..
The second application is in relation to the failure of the Responsible Authority to endorse plans required to the provided under condition 4(a) & (b) of Permit Application No. 926/2005A, for a new dwelling on the land and demolition of the existing weatherboard bungalow. It is noted that a Section 173 Agreement has been entered into to the effect that the existing dwelling will be demolished upon completion of a new dwelling on the site.
My decision has considered the issues raised by the parties in this case which are:
- Compliance with Planning Scheme Policy and the Zone requirements.
- Impact of the proposed development on the surrounding area, including effluent disposal, carparking and views.

The site is in a rural setting and has coastal salt-march to the south, southeast and southwest which has an Environmental Significance Overlay Schedule 2 (high value wetlands and associated habitat protection).
A Land Subject to Inundation Overlay affects a small 10 metre wide strip on the eastern side of the property, although this overlay does not apply to the part of the site for the proposed development. Heritage Overlay 1712 applies to the 'ruined cottage' located on the Breamlea Road frontage of the site, again this is not directly affecting the proposal. The cottage has a 'C' grading and is of local significance.
Breamlea Rd provides access to the property and there is an unmade Government road on the southern boundary. Extensive cypress hedging is located on the Breamlea Road frontage that provides screening to the site.
The area generally is characterised by coastal salt marsh and low-lying vegetation to the east, west and south, and offers views to Breamlea Township and the Bancoora sand dunes. The Black Rock Treatment facility is located some 300 metres to the east. Rural properties to the north are used for cropping and grazing.
Land to the west of Breamlea Road is in the Surf Coast Shire and is set aside as a flora and fauna reserve and is managed by Parks Victoria.

This application proposes the use and development of a place of assembly (function centre) which also includes a dwelling for the owners of the property and bed and breakfast accommodation for six persons, a liquor licence and partial waiver of the car parking provisions of the Greater Geelong Planning Scheme.
The building containing these facilities is basically horseshoe shaped with a courtyard component open to the east. The building sits generally in the middle of the site and there is some fall across the land. The building varies in height up to 8 metres above natural ground level and will incorporate a basement level cellar, store and garage. At ground floor level there will be a commercial sized kitchen, an 'L' shaped function room for seating for 100 guests, toilets, an entrance foyer, an elevated garden and a northern wing will incorporate the bed and breakfast guests rooms with associated facilities.
The first floor will incorporate a master bedroom including a sitting room walk in robe and en suite with views to the coast.
The applicant says that the design reflects the 'Edo' period of Japanese samurai architecture and will include large banks of timber framed windows with sliding doors, vertical cedar lighting boards, a tiled roof with a 25 degree pitch, face bluestone and render and it will be set in a Japanese style garden.
The building is proposed to be located approximately 47 metres from Breamlea Road and its main access entry point will be in the middle of the boundary fronting Breamlea Road adjacent to the derelict cottage using the existing crossover. To the south of this entrance will be located a 20 space car park with a 7 metre setback from the boundary and to the north of the entry will be a further 11 car parking spaces and one disabled space with three car parking spaces labelled for bed and breakfast patron use. There is also proposed to be a staff car parking area to the north.
The site is unsewered and although within a very short distance of the major sewerage treatment plant for the area will need to contain all waste water within the boundaries of the site.
It is proposed to use the function centre for a maximum of 10 days per year for the purpose of holding weddings and other types of functions.
There is an existing weatherboard bungalow on the property, which it is proposed to be demolished once the main building has been constructed. It is further proposed to augment the existing orchard on the property and make areas available for the growing of bonsai plants, non-invasive bamboo and vegetables to be used by the occupiers of the site
The Japanese style gardens around the dwelling will be used for photography backdrops associated with the function centre and the growth of the bamboo and bonsai that will be sold off site to the nursery trade. The applicant further proposes the gardens, when established, being used as part of an "open garden" scheme and linked with other similar properties in the area for this purpose on a limited number of days per year.
The second application deals with planning permit application no. 926/2005/A which is for construction of a new dwelling on the site. A permit was granted by council for this use and part of that requirement was for the demolition of the existing bungalow on the site. The large dwelling was in the form of a U shape, similar to the function centre model and the areas in the application for the function centre were proposed to be used as lounge and dining areas in the large dwelling with the three double bedrooms with ensuite facilities to be used for bed and breakfast purposes on the other side of the U shape.

The subject site is in a Farming Zone and one of the purposes of the zone is to "encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision". The use of the function centre is a Section 2 use under the Greater Geelong Planning Scheme with the requirement that it not be used for more than ten days a year. Council maintains that there is inadequate support for this use other than the applicant wishing to take advantage of the visual location, without taking into account the sensitivity of surrounding land.
The Council maintains that the proposed use is not considered to be a tourism industry nor promote agricultural activities. During the course of the hearing, Mr Smith did not provide any response to submissions in relation to the zoning and use of the site, but did provide information during earlier discussions with Council officers which I will paraphrase. "In addition to farming the land, we would like to use that one large room with views of the Bancoora sand dunes and surrounding wetlands for ten days of the year for functions. We feel this would help supplement our income from our crops and make the most of this special part of the world."
Council referred to Clause 21.14 of the MSS which states: "In accordance with the State Planning Policy on agriculture council rejects "economic viability as the basis for making planning decisions in rural areas"."
Objective 4 of clause 21.24 of the MSS states:

"to enhance the role and contribution of the city's rural areas to the regional economy.

strategies look to support rural based tourism industries to complement the natural resources of the land and promote agricultural activities which are productive and economically viable, amongst other things."

Council acknowledges that this site of 1.14 hectares is very small given the size of the surrounding parcels in the area which are used predominantly for horticulture, cropping and equine operations. Council maintains that because the land is small in size it should not be used as an excuse for siting an inappropriate use in the area.
Council maintains it cannot ignore consideration of policy and zoning, and I agree with this position. Council has a particular focus on the purpose of the zone, decision guidelines for the zone and relevant policy. It maintains the use and development is at odds with the decision guidelines for the zone particularly when the site is in a sensitive location.
As stated previously Mr Smith did not tender extensive submissions in relation to the issue of the appropriateness of the use in the zone however he did indicate that he was endeavouring to undertake enough horticultural pursuits on the site as was practicable. This included the growing of bonsai trees, the development of bamboo gardens for the florist and hobby industry and growing his own fruit and vegetables and maintaining beehives for honey production. These activities will supplement Mr Smith's income from his landscape gardening business.
This then leaves me in the position as to having to weigh up whether the proposal is appropriate in the zone and whether it is also appropriate in the location on the edge of areas that have high scenic and landscape qualities as well as being sensitive wetland areas. It also raises the significant issue as to what is to be done with small remnant parcels of land in a rural farming zone.
It is clear that Council is not convinced that the proposal is an agricultural pursuit or a development in harmony with the rural landscape. It is noted that the Council has issued a permit for a replacement dwelling on the site and links this to the demolition of the existing bungalow on the land to ensure that there is only one dwelling on the land. It is understood that Council has no concerns with the B&B part of the proposal and it then turns on the impact of the function centre in relation to the zoning of the land. With the restriction of the planning scheme for the use to be maximum of ten occasions per year it can be strongly argued that the impact on the surrounding area will not be that great. It is my opinion that the low impact nature of the number of times that this site could be used for this purpose will not necessarily cause a serious conflict with the zone. The proposal has the potential to bring tourists to the area and generate employment of local people at the function centre.
If the size and scale of the building was reduced and the impact of effluent disposal and car parking could be managed in a sensitive fashion it is considered that the use could sit comfortably in the landscape. The low number of functions and the intentions of the applicant to maximise the agricultural potential of the land with the use of the orchard, the keeping of bees and the growing of bonsai and bamboo is a reasonable use of the land given its small size. It is therefore my decision that because of the low impact of the proposed use, together with the limited agricultural production capability of the land, this site can be used for a function centre.

Impact of the proposed development on the surrounding area including views, effluent disposal and car parking and landscaping.

A site inspection of the land and the surrounding areas was most instructive. The land in general in this area is very flat to slightly undulating and when travelling along Breamlea Road towards the Breamlea Township the Barwon Sewerage Treatment Works on the left some 300 odd metres from the subject site is a large structure that is very dominant in the surrounding landscape. It is understood that major extensions are proposed to the treatment works and that landscaping has already been undertaken. When viewed from a distance, this landscaping has not yet made much of an impact in screening the works but it is understood that in time the screening would become more effective. The distant views from Breamlea Road to the Bancoora sand dunes are probably one of the highlights in the area; however, there is a large Surf Lifesaving Club located on the landward side of the dunes, with little in the way of landscaping to screen the building from inland views.
When inspecting the area on a weekend day it was evident this area is highly used with the car parking spaces around the life saving club being full and a number of people using the beach for swimming, sunbathing and surfing.
On the other hand, the dwellings in the Breamlea Township itself are scattered on the landward side of the dunes with large amounts of vegetation screening the majority of them from views of passing traffic, and therefore sit comfortably in their surroundings.
The subject site is relatively well screened from the road by the existing cypress hedge that is understood was planted a couple of years ago. The applicant proposes landscaping on the other two boundaries of the site primarily to screen the treatment works to the east but maintain views towards the Bancoora dunes located to the south east of the site.
Travelling back towards Geelong from Breamlea, once suitable landscaping is in place it is considered that visually the site will be well screened. The surrounding land to the southwest and the east is relatively flat with saltbush the primary form of vegetation. Therefore, the size and height of the proposed structure to contain the function centre, dwelling and bed and breakfast facilities has the potential to be a dominant feature in the landscape. To overcome this and reduce the bulk of the building I consider that the first floor of the building should be deleted. This will require some redesign of the building but it is considered that a master bedroom suite could be incorporated into the building and keep its low slung single storey nature with extensive views to the dunes.
A balance needs to be struck between the applicants 2 storey function centre proposal and the desirability of reducing the visual impact of the building. The materials to be used in the Japanese style architecture are considered appropriate although a Japanese style building is not a vernacular that one would normally find in this environment. The materials being timber, render and bluestone in muted colours and with appropriate landscaping could sit well in its environment.
Landscaping and the low-slung nature of the proposed building on the site are key to the visual issues related to this proposed development.
It is understood that Mr Smith's keen interest in all things Japanese has lead him to seek an 'Edo' design building. However, with appropriate muted colours and materials to the satisfaction of the Responsible Authority a single storey dwelling, low slung in nature could be appropriate to the area. Landscaping of this site is therefore critical and a landscaping permit condition will be required to ensure suitable screening of the building when viewed from all angles. A mixture of exotic and native indigenous species would be considered appropriate. It is further understood that the applicant in fact has a landscaping business and so has the ability to generate suitable stock for planting on the site.

The provision of a suitable effluent disposal system is probably one of the major environmental impacts that requires careful consideration. Mr Smith provided to Council a geotechnical report from Saunders Consulting Group as to the suitability of the soil within the site to contain any effluent from an onsite treatment regime. The Saunders Group concluded that:

"knowing some of the site conditions and providing there is careful planning allowance made for suitable treatment and dispersal systems we consider that waste water can probably be successfully treated and retained on the proposed development site. A development investigation and more specific details will be required to proceed further."

Council did not refute this position and so I am satisfied that effluent can be satisfactorily disposed of upon this site.
It is my view that effluent disposal from ten functions per year could be accommodated with a suitable treatment regime that needs to be developed in consultation between the applicants consultants and the environmental health authorities of Greater Geelong City Council.

There appears to be some confusion between the plans and the written information provided by the applicant as to whether it is for 100 guests or 120 guests. This becomes particularly critical in relation to the provision of car parking on the site. I consider Council's concerns about large areas of the site being taken over by car parking are correct. They would have a considerable impact on the visual amenity of the site, and have the potential to generate runoff when the land can be better used for vegetation and agricultural related uses. It is noted that the applicant has provided 31 car parking spaces for the function centre that falls 19 short of the 50 required by the Planning Scheme. Due to the intermittent nature of the use of the function centre, I consider that it is not appropriate to require the full amount of car parking being provided on the site. I am satisfied that the 31 car spaces for the function centre needs to be provided in an all-weather surfaced car park. To minimise the amount of hard standing that would be needed an additional condition is required requiring a detailed landscaping plan. The landscaping plan must provide for an additional 19 car parking spaces that can be provided in a less formal fashion on grass or "grasscrete" areas to soften the appearance of the car parking to the site.

A discussion regarding conditions was held between the parties at the conclusion of the hearing and agreement reached that the conditions were basically appropriate for the development, with the exception of the above-mentioned conditions that I intend to impose.

This site is recognised as being a small remnant parcel in a rural area that is constrained by a heritage overlay and inundation overlay, but I consider that it is appropriate for the development proposed in that it puts the land to a viable use, is low in intensity and, with suitable conditions, can provide a tourist opportunity for visitors. It also has the potential to create local employment, without destroying the rural vistas and fragile landscape.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the submitted plans but modified to show:
- (a) the function centre/dwelling to be single storey in height, and
- (b) areas for overflow carparking

The development as shown on the endorsed plans, including dimensions, finishes, materials/textures and colours, must not be altered without the written consent of the Responsible Authority.

Before the development starts, a schedule of construction materials, external finishes and colours (muted in tone and incorporating samples) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the schedule will be endorsed and will then form part of the permit.

A landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of this permit. The plan must be prepared by a suitably qualified and experience landscape architect or landscape designer, drawn to scale with dimensions, and three copies must be provided showing:
- (a) A survey (including botanical names) of all existing vegetation to be retained and /or removed;
- (b) Details of surface finishes of pathways and driveways including an area for overflow parking to be created using grasscrete or similar;
- (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
- (d) Landscaping and planting within all open areas of the site;
- (e) Details of irrigation and/or watering systems;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit. No environmental weeds referred to in Clause 21.14 may be planted on site.

The site must be drained to the satisfaction of the Responsible Authority and no storm water, sullage, sewerage or polluted drainage may drain or discharge from the land to adjoining properties.

Before the use of the development, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
- (a) Constructed;
- (b) Properly formed to such levels that they can be used in accordance with the plans;
- (c) Surfaced with gravel or crushed rock;
- (d) Drained

all to the satisfaction of the Responsible Authority.

Entrance culverts with endwalls and suitable pavement material must be constructed in concrete to suit the proposed driveway to the satisfaction of the Responsible Authority.

Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles to the satisfaction of the Responsible Authority.
The dwelling must be connected to a wastewater treatment system and all wastewater retained on-site in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.
The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes to the satisfaction of the Responsible Authority.
The dwelling must be connected to a reticulated electricity supply or have an alterative energy source to the satisfaction of the Responsible Authority.

Not more than 120 guests may be present for functions at any one time without the prior written consent of the Responsible Authority.
The use hereby permitted must only operate and sell liquor for consumption between the hours of:
- (a) 10am and 11pm Monday to Thursday
- (b) 10am and 1:30am Friday and Saturday
- (c) 10am and 10pm Sunday or Public Holiday

All patrons must vacate the premises no later than 30 minutes after trading ceases.
At all times during the operation of the use, there must be present on the premises a person over the age of 18 years who is responsible for ensuring that the activities on the premises and the conduct of persons attending the premises do not have a detrimental impact on the amenity of the locality to the satisfaction of the Responsible Authority.
The amenity of the area must not be detrimentally affected by the use or development through the:
- (a) Transport of materials, goods, commodities to or from the land;
- (b) Appearance of any building, works or materials;
- (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapor, steam, soot, ash, dust, waste water, waste products, grit or oil;
- (d) Presence of vermin

No permanently fixed sound amplification equipment, juke boxes or loud speakers may be used for the purpose of announcements, broadcasts, playing of music (whether recorded or otherwise) or similar purposes so as to be audible on adjoining public or private land, except with the prior written permission of the Responsible Authority. Noise levels emanating from the land must comply with the requirements of the Environment Protection Authority's Information Bulletin No. N3/89 Interim Guidelines for the Control of Noise in Country Victoria.

The external fabric including the roofing of the dwelling and function centre must be in muted tonings of non-reflective materials to blend with the environment and preserve the aesthetic amenity of the area to the satisfaction of the Responsible Authority.
All advertising (including flags, bunting etc) must be in accordance with the Greater Geelong Planning Scheme.

This permit will expire if one of the following circumstances applies:
- (a) The development and/or the use is not started within two (2) years of the date of this permit.
- (b) The development is not completed within four (4) years of the date of this permit.
- (c) The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three (3) months afterwards.

Finescape Pty Ltd v Greater Geelong CC [2009] VCAT 582

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Finescape Pty Ltd v Greater Geelong CC [2009] VCAT 582 (3 April 2009)

Parties

Legislation Cited (1)