Victorian Civil and Administrative Tribunal|2004-08-20|Before: Mr J

Good Guys Contractors Pty Ltd v Hobsons Bay CC [2004] VCAT 1630 (20 August 2004)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Car Wash. Residential 1 zone. Amenity impacts. Local Need. Built form.

The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted.

Mr Cicero called Ms A Spinks, town planner of The Nicol Group, Mr H Turnbull, traffic engineer of Traffix Group and Mr R Burton, acoustic consultant of the Burton Acoustic Group

1 Oral reasons for the decision were provided by me at the hearing on 9 August, 2004. The following is a summary of the reasons provided by me at that time.

2 In giving these reasons for my decision, I do not propose to set out the details of;

* the background to the Council's consideration of the permit application and decision.

3 The relevant background facts in relation to these matters were comprehensively set out in the written submissions and evidence. I note that the relevant background facts were not disputed in any significant way. I have also had the benefit of an extensive array of photographs, plans and other material which have given me a very good understanding of the land and its context and the proposal. I inspected the site during the course of the hearing.

4 In coming to my decision I have considered the matters raised in the submissions and the evidence, the relevant matters under the planning scheme and legislation together with the details of the proposal for which a permit is being sought.

5 The proposed use is prohibited in a Residential 1 zone unless it is a use on a site which has a frontage or access to a road in a road zone, a feature which this site enjoys. However the fact that the site has a frontage to a road in a Road zone has the effect of allowing a consideration of the appropriateness of a particular site for the proposed use, it does not provide an indication that any particular site in a Residential 1 zone with a frontage to a road in a road zone is a suitable site for a carwash. The purpose of the condition attached to the use in the table to clause 32.01 is to eliminate lower order residential streets from consideration for the location of a carwash and to provide a basis for the identification of sites which may be subject to full assessment through the planning permit process. The overriding issue in undertaking a full assessment will always come back to an assessment of the proposal's effect on the residential character and amenity.

6 There is I think good reason for a carwash to be a prohibited use in a Residential 1 zone. The combination of the nature of the use and the fact that by and large activities on the site are conducted in the open (albeit under a roof and in separated bays and behind acoustic fences) does give rise to the potential for off site amenity impacts including noise, traffic movements, hours of operation, spray, odours and lighting. I also think that the built form of these uses is such that it does not fit comfortably in a residential context. It is important therefore that consideration is given to the appropriateness of the site for the use and I reiterate that a frontage to a road in a Road zone does not of itself qualify a site as a suitable site for this use, it merely provides an opportunity to assess the suitability of the site. Clearly there are sites which are zoned Residential and which have access to a road in a Road zone which will be suitable locations for a carwash but I think that those sites will be suitable because of a combination of factors which do not exist here. In particular, I do not think that the traffic volumes along Queen Street are such that the residential amenity of sites abutting this site has been diminished to such a point as to make this site unsuited to residential development. The existence of residential development along both sides of Queen Street but particularly the north side provides a strong indication of this. There are also many examples of residential development in metropolitan Melbourne located on roads carrying much higher volumes than the 15000 vehicles per day using Queen Street. I acknowledge that volumes along Queen Street are likely to increase as further residential development to the west proceeds however I think it will be many years before these volumes reach a point whereby the suitability of land along Queen Street for residential use is significantly compromised.

7 Similarly, while I acknowledge that the pattern of development and use of land on the south side of Queen Street in the vicinity of the review site, has assumed a non residential flavour, with the exception of the petrol filling station located on the corner of Queen Street and Victoria Street, these non residential uses can I think demonstrate a link or association to a greater or lesser degree with its residential community. The welfare centre, child care centre, and the various medical centres on the north side of Queen Street are perhaps the best examples of this. I also include the swimming school in this categorisation although its association with the local community is perhaps less well established. These are uses which in my view can be expected to be found in a residential area and their amenity impacts are such that they are not necessarily dependent on a main road location and could be accommodated on lower order streets. By and large, they are uses whose off site amenity impacts, to the extent that they exist at all, are accepted by their residential neighbours primarily because of the association that they do have with their community and the services they provide to that community.

8 I acknowledge the existence of the shopping centre to the west of the review site but I do not think that any great reliance can be placed on this development in support of the car wash proposal. It is relatively distant from the review site (about 600 metres) with intervening land uses which contributes to its separation from the review site in a functional sense. Similarly the petrol station to the west has its own site specific characteristics not the least of which is its location at the corner of a main and a secondary road.

9 My finding therefore is that the review site does have a primarily residential context within which this use and its associated built form will not be appropriate. My finding in this respect is further influenced by the fact that the review site has a direct abuttal to residential development to the south and has an interface with a primarily residential area to the north on the opposite side of Queen Street. The existence of non residential uses in the vicinity of the site and in particular on the south side of Queen Street do not in my view provide a non residential context to this site which justifies the introduction of a use which does have the potential to give rise to off site amenity impacts and for which it has not been demonstrated to my satisfaction that there is an overriding or compelling reason for the use to locate on this site in order to service local community needs. While I acknowledge the environmental and water saving benefits which apparently derive from the use of a carwash as opposed to the practice of washing cars in the street, it has not been demonstrated to my satisfaction that they are of such benefit that these benefits ought to override my findings about the inappropriateness of the site's location.

10 I accept the evidence of Mr Burton that the use of acoustic fencing and the like is capable of containing noise exposure in compliance with the relevant State Environmental Protection Policy. Similarly I accept Mr Turnbull's evidence with respect to traffic related matters. Notwithstanding this the grant of a permit would lead to the introduction into a primarily residential context of a use which is intended to operate between 7 am and 10 pm, will be fully lit during non daylight operating hours and which generates levels of activity and disturbance which I consider to be simply inappropriate for this site.

11 For the above reasons the decision of the Responsible Authority is affirmed and it is directed that no permit issue.

Environment Act 1987

Good Guys Contractors Pty Ltd v Hobsons Bay CC [2004] VCAT 1630

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Good Guys Contractors Pty Ltd v Hobsons Bay CC [2004] VCAT 1630 (20 August 2004)

Parties

Legislation Cited (1)