Graphos (Aust) Pty Ltd v Nillumbik SC [2008] VCAT 2321

Graphos (Aust) Pty Ltd v Nillumbik SC [2008] VCAT 2321 - VCAT 2008 case summary — Zoe

[17]

The Council's grounds did not seek to oppose the use of the review site for a nursing home in principle although Mr Glossop referred to the policy at Clause 22.01 in stating a location close to an activity centre would improve transport options for staff and visitors. Mr Song did not question the need for facilities such as that proposed in this case. It is fair to say that both Mr Glossop and Mr Song focused on the design response with respect to the site characteristics as the basis for their opposition to the proposal, although this led Mr Song to question whether a nursing home could be accommodated on the land. We discuss the design and site considerations below. We do not consider there was any particular disagreement between the parties with respect to findings in numerous Tribunal decisions[3] about need and about the specific circumstances of aged persons' accommodation. Some of these decisions were referred to by the parties. These decisions include the following general conclusions or principles:
- There are a number of cases where the Tribunal has considered the relevance of the question of need[4] with the primary finding being that a demonstrated need for a facility or use may be a relevant factor but lack of a need will rarely, if ever, be a ground for refusing to grant a permit.
- There is a significant need for aged care facilities including high care nursing homes. While regional needs may well vary, we note that the Nillumbik Planning Scheme makes clear that the accommodation needs of an ageing community must be provided for in this Shire.
- A nursing home is a residential use that is appropriate in a residential area. The home is the normal place of residence for its occupants.
- Facilities such as nursing homes have specific functional requirements with respect to their floorplate and size; that means lifts will be needed for more than single level facilities and modules must be designed to relate to staffing requirements and other logistic considerations.
- Facilities such as nursing homes will be larger than conventional residential development because of these functional and economic constraints. They will be different to standard dwellings and units in their built form character and occupancy. Higher forms and lesser setbacks may be acceptable compared with standard housing.
- Nursing homes are growing in size to meet the higher expectations of residents, more stringent Commonwealth standards, and to achieve economies of scale that make them viable given funding arrangements and bed license allocations.
We also accept principles cited in other decisions[5] tendered by the parties with respect to court locations. These include:
- Residents enjoy a higher level of amenity that other local streets and main road locations given the usually smaller number of dwellings and an absence of through traffic.
- Lots at the end of courts may not be suitable for development at significantly higher density given factors such as unusual lot shapes and sizes, multiple property abuttals and the impact of extra traffic.
- Despite the higher amenity and development constraints, court locations are not precluded from some higher density development.
- The situation of courts and cul-de-sacs can differ significantly from access streets or places that do not carry through traffic.
We would add that courts and cul-de-sacs can develop a sense of community that is often highly valued by residents.
Policy within the Nillumbik Planning Scheme requires regard to be given to the environmental and landscape characteristics of the area as well as the ease of access to, and within, the site[6]. Standard provisions within the Scheme deal with amenity impacts.
As relevant to the current case, we consider the primary and determinative issues focus on the specific circumstances of the review site and its setting. The court location is part of this. Impacts with respect to traffic, built form, vegetation loss and the amenity of abutting residential properties are all relevant in assessing the merits of the proposal and must be weighed against the need for a facility of the type proposed and the expected impacts it would bring as a result of form, function and operation. Clause 11 of the State Planning Policy Framework states that the objectives of planning in Victoria are "fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development". [emphasis added]

[19]

This brings us to one of the core issues in this case. That is the use of Grevillia Grove, a cul-de-sac, for all traffic associated with the proposal. The Grove has a carriageway width of 5.5 metres and would fit the category of access place using terms identified in Clause 56.
It is common ground between the representatives of the parties at the hearing that Grevillia Grove can physically accommodate the amount of traffic that the proposal would be expected to generated.
Rather, the debate is about whether it is reasonable to allow this additional traffic in this court mindful of different temporal patterns associated with a nursing home (eg. staff changeovers) when contrasted with the existing situation and the potential development of the site for 6-7 residential lots.
The Grove would provide for all access for emergency services, deliveries and loading as well as staff, visiting service persons and practitioners and visitors. There appear to be two reasons why the only access possible for the proposed development is from Grevillia Grove. The first reason is the evidence of Mr O'Brien that it is not feasible to utilise Yan Yean Road for nursing home access and/or egress due to the grades. The second reason is that VicRoads would oppose this option (an option proposed prior to the substituted plans) given there is an alternative from Grevillia Grove. In addition, VicRoads has plans to widen Yan Yean Road, potentially requiring part of the site's frontage for a depth tapering up to 20 metres (although 15 metres or less may ultimately be pursued based on Mr Lanza's submission). Planning for road widening is at an early stage and there is no confirmed alignment or Public Acquisition Overlay in place.
There are several features relevant in considering the use of Grevillia Grove for all vehicle access to and from the proposed nursing home. First, the Grove is accessed via other local streets in a quite long and circuitous route from the arterial road network. Second, Grevillia Grove is fairly narrow and rises up toward the review site. Parking occurs on-street but limits through movement if two cars are parked close to one another (even if not directly opposite one another). Third, there was never any real prospect of Grevillia Grove being opened to Yan Yean Road based on VicRoads' position and the 1991 Outline Development Plan referred to in DDO3. The ODP shows a continuous tree reserve and states no access to the main road. Fourth, the review site is located at the end of the Grove so any traffic associated with the use and development of the review site needs to pass all houses in the Grove as well as properties in Treetop Terrace (that Terrace allows movement to both the north and south into other roads).
On the evidence, the numbers of additional vehicles may be less than double the existing volumes (150 vs 198 vehicles per day[7]) although on some submissions suggested volumes could be higher at around 240 vehicles per day. There would be peaks associated with the increased traffic notably with staff changeovers, although traffic would vary between times of day and days of week (ie. lower at night and on weekends). A daily rate of 1.25 vehicles per bed, equivalent to that calculated by Mr O'Brien might seem low. Even if 240 vehicle movements per day is adopted, the road's physical capacity would not be exceeded. These volumes would contrast with 60-70 vehicle movements per day that would be expected if the site was subdivided into 6-7 lots each with one dwelling.
Thus, the volume of traffic, type and range of vehicles, and temporal pattern of traffic movement would bring a significant change. It would be noticeable to all residents along the Grove. It is an increase that seems above reasonable expectations in normal circumstances particularly when mindful of the local policies and DDO3 provisions that earmark this area as low density. We are also concerned about parking impacts, as we discuss later. Having said that, access from Grevillia Grove is not a single "knock-out" point at this stage; we come to our balancing of all relevant considerations at the conclusion of these reasons.

[21]

The review site contains one dwelling and is the last lot in a residential area that has been developed over the past 5-6 years. The Scheme's intent for this area is plain, insofar as the provisions of DDO3 do not allow multi-unit development and do not allow lots of less than 1,000 square metres or more than 2,000 square metres. The area is, therefore, desired as having a fairly low intensity of development. Further aims through DDO3 and Clause 22.12 are for substantial native and exotic trees to be retained or planted, as well as to ensure front gardens are quite open with informal plantings (without high front fences where this is an existing feature).
The review site is at a high point in the area. It abuts Diamond Creek and Yan Yean Roads close to their intersection and it is prominent in this main road context. The main road setting includes a range of building styles and forms; some are quite prominent while others are hardly seen such as the two churches that abut the review site on relatively large well treed lots. We note that the dwellings in the residential area associated with Grevillia Grove, Treetop Terrace, Mackelroy Road and other through streets and courts are recently established. With the larger lot sizes, many dwellings are substantial in their footprint and scale. There is some older vegetation and much new, often low, landscaping with open front yards. The slope throughout the wider neighbourhood means that dwellings are often elevated above the ground level. Thus, a single level building can appear with some second storey elements because of a raised sub-floor level and double storey dwellings can appear in part to be almost three levels.
The main issues identified in opposition to the proposed development focus on the extent of the building's mass, at two and three levels, across much of the site. Setbacks from existing dwellings were regarded by opponents of the permit application to be unacceptable and the proposal was said to fail to respond to the site's features and character outcomes sought by the Scheme. It was further argued against the proposal that the road widening would mean the building would be prominent to Yan Yean Road and existing vegetation (that is not proposed to be removed) would be lost. The loss of other existing indigenous vegetation on the site was criticised including three vulnerable Melbourne Yellow Gums. The retention value of trees is not agreed between the Council and Applicant.
In reply, Mr Connor submitted the proposal would be acceptable having regard to the nature of the use. He relied on the evidence of witnesses that the proposal is respectful of the area's character as a result of the front setback to Grevillia Grove, the retention of trees in the front setback with open pool-style fencing, the materials and finishes including central glazed section, and setbacks to existing dwellings that exceed Clause 55 requirements (B17) in all but one instance. The landscape setbacks were regarded as generous. The witnesses variously questioned the extent of land that might be assumed by VicRoads, or whether any land might ultimately be acquired, but in any event Mr Milner regarded the proposed setbacks from main roads as acceptable with an allowance for road widening if required. [Mr Lanza accepted the proposed development at the setbacks shown in the plans and did not seek any additional setbacks from the main road to accommodate any future widening]. There were also submissions that the amount of vegetation loss associated with the proposal would be less than might occur with a 6-8 lot subdivision of the site.
The proposed building is generally U-shaped. Two wings would be linked by a central section facing Grevillia Grove. The front setback to Grevillia Grove includes a group of five retained trees, plus several others (including #1 within the road reserve), with a one-way driveway serving the entry. Open pool-style fencing is proposed to 1.8 metres and Mr Kern's evidence was that the group of five trees should be free from access and retained as a conservation area. He also suggested the two parking bays be moved, by the removal of tree#13, thereby protecting the more important group. Mr Galbraith's evidence was that the building would intrude into the critical root zone of tree#5 and thus changes would be needed to retain the tree. The architect said at the hearing that the requirements of the arborist could be achieved even though tree #5 is close to a lift. Our inspection suggests considerable pruning of part of tree#5 might also be needed.
The overall scale and massing of the building would be apparent moving north up Grevillia Grove even with the tree retention in the frontage of the site. The dwellings nearby in Grevillia Grove are generally single level, and thus the building's presence would be dominant in that context. Our most critical concerns are the treatment of the edges of the building with abutting residential lots. In narrowing our findings in this way, we have less issue with the main road presentation. The interfaces with the church properties to the east and west are also less sensitive than dwellings in although the three storey form to each edge, with very limited planting opportunities at those edges, could be moderated. We also do not consider a double storey building to be problematic per se if well modulated.
The south-west wing of the development would abut No. 20 Grevillia Grove that is lower than the review site (varying with the slope to the east). There has been an effort to provide setbacks at ground and first floor levels, well beyond the standards of B17 of Clause 55, to mitigate the impact of visual bulk. The scope for planting is, however, limited by a pathway within the setback area that is part of a circuit around much of the site.
The visual bulk of the development experienced by No. 21 Grevillia Grove would be greater when compared with the impact on No. 20 Grevillia Grove. The dwelling at No. 21 Grevillia Grove and its rear open space are also downslope from the review site although the level variations are not uniform. The rear deck is elevated above the natural ground level. There has not, we find, been the same degree of amelioration of the building mass along the northern boundary of No. 21 when compared with No. 20 Grevillia Grove. Rather, as a result of the sub floor store and two levels above, the proposed development would be two to three storeys abutting this property's private open space at setbacks from the common boundary of 5.7 - 7.7 metres rising to a wall height of around 9 metres. Views from this dwelling and its open spaces would also be exposed to other parts of the proposed development as the building wraps around the review site. Opportunities for planting within the setback area along this elevation of the building are again limited by the pathway network. Even if there was no path and some space was made for additional tree planting, the continuous building along this section of the west elevation is not acceptable in our view. Similarly, adjusting the built form where there is the marginal non-compliance with B17 would not resolve our concerns. We find there is simply too much building too close to the common boundary with the property to the south.
Thus, with respect to the interface with Nos. 20 and 21 Grevillia Grove we do not consider a suitable transition in built form has been achieved and there are insufficient setback areas on-site to provide scope for meaningful landscaping to ameliorate the visual impact. In this respect the proposal fails several objectives of Clause 55 and the purpose of the Residential 1 Zone even though we are mindful that facilities such as this will be larger than single homes.
It is also necessary to refer to the extent of vegetation removal associated with this proposal. There has been an effort to retain trees although we have alluded to some tight conditions that are also arguably demonstrative of a building that is too large for this site. Some of the trees would be likely to be lost even in a modest residential subdivision and we think the amount of vegetation proposed to be retained, in the context of a single large building of this type, is reasonable. Our concerns are about the realistic ability to retain those that have been nominated for retention as well as limited opportunities for new canopy planting around the edges of the site as is sought by the DDO and local policy.
In summary, we find the proposed development to be too large and too close to its non-main road boundaries. We are particularly concerned with the interface with No. 21 Grevillia Grove. The interface with No. 20 Grevillia Grove raises built form issues as well as potential amenity impacts as we discuss below. We are concerned about the loss of significant vegetation in a context that little room is available around the building to provide for new trees as sought by local policy and DDO3.

[24]

A reduction in parking is required from the rate required for a residential building under Clause 52.06 of the Nillumbik Planning Scheme. A total of 44 spaces is proposed to service staff, visitors and others who might require parking such as visiting specialists and service persons. All would be within car park except for two vehicle spaces at the front of the site, one of which would serve disabled persons and the other is an ambulance bay.
The Council and Respondent Objectors have accepted the rate at which parking is provided, around 0.33 spaces per bed. We agree. The reality of high care aged accommodation is that residents will not drive and there is not continuous and large visitation. We accept the proposal provides sufficient on-site parking to accommodate the expected routine demands. As no on-street parking is desirable along Grevillia Grove, staff and visitors would need to park on-site, with on-street parking restrictions likely to be required.
We accept the proposed parking rate based on current expectations with respect to staffing. Any significant increase in staff, such as might be directed by the Commonwealth, would cause the car park to reach its limits in a context where Grevillia Grove is not a feasible option as Mr O'Brien said in his evidence. Similarly, while it is not usual to plan to accommodate infrequent high parking demands that might occur on a busy day, such as Christmas Day and Mother's Day, another constraint of the review site is the absence of options for any overflow parking should that occur very infrequently. This is because neither the main roads nor Grevillia Grove are viable prospects for overflow parking. Mr O'Brien suggested some tandem parking might occur for staff to assist such a situation should it arise on a peak visitation day and, although we agree with him that such an occurrence is not likely, the lack of contingencies is a problem.
As previously noted, we raised with the Applicant our concerns with respect to arrangements for loading and waste collection. The evidence was prepared based on a 6.4 metre rigid vehicle and, when asked about this at the hearing, Mr O'Brien was confident the layout could accommodate an 8 metre truck. There is only a door leading to the kitchen for deliveries and Mr Connor said that this would, on his instructions, be sufficient. However, we consider, for a new building, loading and waste collection should be internalised in a better manner or least not located immediately abutting an existing residence.

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Graphos (Aust) Pty Ltd v Nillumbik SC [2008] VCAT 2321 (24 November 2008)

Parties

Legislation Cited (1)