Victorian Civil and Administrative Tribunal|2004-04-19

Green v Chabad House of Glen Eira Inc. [2004] VCAT 696 (19 April 2004)

Sections 80 and 82 of the Planning and Environment Act 1987; Glen Eira Planning Scheme; Residential 1 Zone; Road 1 Zone; Synagogue; Place of Worship; Child Care Centre; Creche; Off-Site Amenity Impacts; Noise; Traffic; Acoustic Fencing; Visual Bulk; Overshadowing; Hours of Operation.

The decision of the Responsible Authority in permit application no. GE/PP-15624/2003 is affirmed. A permit is granted and is directed to be issued. The permit will allow the use and development of the land at No. 484 Glen Eira Road, Glen Eira, for the purpose of a place of worship (synagogue) and crèche/child care centre, including a reduction in car parking, in accordance with the endorsed plans and subject to the conditions included on the Notice of Decision dated 6 November 2003 with the following variations:

* The preamble to Condition 1 is amended by the deletion of the all of the words including and between "plans submitted .... Associates)" which are replaced with the words "plans marked as Issue C (sheets 2-6 inclusive) with sheets 1, 7, 8 and 8A marked as Issue B (revised 2/6/03)".

* Condition 1(i) is deleted and replaced with the following:

The provision of two (2) tandem spaces along the east boundary for staff parking with the spaces positioned to the east of the entry to the synagogue. Delete the roller door or re-locate it to the east side of the same entry. Delete the tandem spaces opposite the synagogue entry and west of that entry and the car space adjacent to Creche Room A.

* Condition 1(vii) is deleted and replaced with the following:

Provision of a continuous 2.4 metre high acoustic fence along the east boundary, grading down to 1 metre commencing at a point 3 metres from the site frontage. Provision of a 2.1 metre high continuous acoustic fence along the south boundary.

* Condition 1(viii) is deleted and replaced with the following:

Provision of a continuous 2.4 metre high acoustic fence along the west boundary, with the lower 1.8 metre to be of solid timber construction with the upper 600mm to be clear acoustic glazing.

(x) Notations to the plans to show the upper level windows in the east and west elevations to be a minimum of 1.7 metres above finished floor level and those to the west to be non-openable.

* Condition 2 is amended by the addition of the following words: "The acoustic fence shall be constructed on the boundaries of the land as shown on the endorsed plans at the permit holder's expense and thereafter maintained to the satisfaction of the Responsible Authority".

* Where the word "patrons" appears in Condition 9 it is to be replaced with the word "persons".

o in the third dot point the number "30" is deleted and replaced with the number "40".

o in the fourth dot point, the words "6 staff" are deleted and replaced with the words "8 full time and 2 casual staff".

o in the second dot point the number "12" is deleted and replaced with the number "20".

o in the fourth dot point, the number "200" is deleted and replaced with the number "250".

o in the seventh dot point, referring to Holy Day Services, delete the words "lasting for 11 days"; and delete the number "100" and replace it with the number "250" where referring to both Simchat Torah and Purim Night.

o in the eighth dot point, referring to Rosh Hashana, delete the number "200" and replace it with the number "250".

o in the ninth dot point, referring to Yom Kippur, delete the number "200" and replace it with the number "250".

* Add the following words at the end of Condition 9:

The child care centre is to be closed on High Holy Days. The use of the land as a synagogue in accordance with the above restrictions is further limited as follows:

* All participants in religious services, Bar Mitzvahs and wedding call ups are to be congregated at the first floor of the building only.

* The play area/open space to the south of the building must not be used before sunrise and after sunset on any day during the use of the land for the purpose of a synagogue.

* In Condition 10, replace the words "Chabad House, Glen Eira Incorporated" with the words "Chabad House of Glen Eira Incorporated".

19. Before the commencement of buildings and works, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved it will become an endorsed plan forming part of this Permit. The Landscape Plan must incorporate:

* A survey, including botanical names, of all existing vegetation to be retained.

* Trees identified for retention (including botanical names) and buildings on neighbouring properties within 3 metres of the boundary.

* A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.

* Landscaping and planting within all open space areas of the site.

20. Prior to the commencement of the development, the report of a qualified arborist shall be provided to the satisfaction of the Responsible Authority detailing measures to be undertaken to ensure that during the construction of the development (in particular the proposed acoustic fences) the trees on adjacent properties identified in the report as likely to suffer an impact during construction are not unreasonably damaged.

21. All existing vegetation shown on the endorsed plan(s) must be suitably marked before any development (including demolition) commences on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

22. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the commencement of the use or at such later date as is approved by the Responsible Authority in writing.

23. The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

24. At the commencement of each calendar year the permit holder must leaflet-drop residents of the following streets:

s Glen Eira Road north side between Bambra Road and Devon Street;

s Glen Eira Road south side between Bambra Road and Webb Street;

advising of the dates of High Holy days in that year when demands for kerb side parking may increase. Similar notice of other events with attendances likely to exceed 100 people must be given at least three weeks prior to the event.

Mr S Jones of counsel. Evidence was called from Mr M Verhoeven, town planner.

Mr M Naughton, solicitor of Minter Ellison Lawyers. Evidence was called from Mr P Small, town planner, Mr S Hunt, traffic engineer, and Dr N Broner, acoustic engineer.

1 This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by F & S Green and others seeking review of a decision made by the Glen Eira City Council ("the Council") to determine to grant a permit in application no. GE/PP-15624/2003. A Notice of Decision was issued on 6 November 2003. The Application for Review was lodged by Mr Verhoeven on 17 November 2003.

2 This is also an Application under Section 80 of the Act brought by Chabah House of Glen Eira Inc. seeking review of some conditions included in the Notice of Decision. The Application for Review was lodged on 7 January 2004. Specifically, review is sought of Conditions 1(vii) and 9 in relation to the number of children attending the crèche, the number of persons attending the synagogue and the hours of operation.

3 The following were dealt with at the commencement of the Hearing.

4 First, Mr Jones sought leave to join a number of persons into the proceeding. There being no objection, we granted leave for Ms B Zefira, Mr A Lubenfelf and Ms A Frenkel to be joined as parties pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

5 Second, Mr Naughton sought leave to amend the name of the permit applicant/Respondent to "Chabad House of Glen Eira Inc." in place of "Chabad House Glen Eira Inc.". There being no objection, we granted leave for this amendment to be made to the relevant documentation pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

6 Third, Mr Naughton sought leave to substitute the plans submitted with the permit application with plans circulated in accordance with the Tribunal's Practice Note. He tendered an updated schedule of changes. He also referred to several additional changes required to the circulated plans, being the deletion of a notation to a car space to the north-west of crèche room A, the addition of the notation of windows in the east elevation at first floor level being a minimum of 1.7 metres high, and the deletion of references to a 1.8 metre high acoustic fence along the east and west boundaries. There being no objection to the substitution request, we granted leave for the plans to be substituted pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998. The plans are identified as Issue C (sheets 2-6 inclusive) with sheets 1, 7, 8 and 8A being Issue B (revised 2/6/03).

7 The subject site is located mid-block on the south side of Glen Eira Road, west of Bambra Road. The land has a frontage of 18.19 metres, a depth of 53.34 metres and an area of some 975 square metres. The existing single storey building on the site has a deep front setback of some 11.65 metres, paved to provide a circular driveway. There is some landscaping along the front boundary and to each side boundary.

8 The existing dwelling is setback by a minimum of 2.9 metres from the eastern boundary and 1.4 metres from the western boundary. A roller door is sited adjacent to the eastern façade of the dwelling extending to the fence. That leads to a driveway extending toward the rear of the site where a small building is located at the south-east corner. The signage on the rear building shows it to have been established at some time as a "back care and sports therapy/laser therapy centre".

9 Adjacent properties to the east, south and west are used for residential purposes. The property to the west, at No. 482 Glen Eira Road, is developed with two townhouses. They include a double storey unit to the front and a single storey unit to the rear. Each has high ceilings and raised floor levels relative to natural ground. The front unit has private open space behind a solid fence to the north (street) and a garage abutting the common boundary with the review site. A courtyard area of private open space also faces east. The rear unit similarly has an east-facing raised courtyard adjacent to the kitchen and living area as well as a more undeveloped southerly open ground area. The outlook from these courtyards is to landscaping on the review site with the raised terraces being at fenceline. There are a number of habitable room windows in both units that face east.

10 To the east at No. 486 Glen Eira Road is a double storey dwelling with two single storey units to the rear. The common driveway abuts the review site and one unit is close to the common boundary of the review site to the rear.

11 To the south are two properties each comprising single storey dwellings. Private open space and habitable room windows face toward the site.

12 The review site is located within an established residential area on a relatively busy road. There is a mix of dwelling styles and forms within close proximity to the review site including some attractive period homes and more contemporary styles.

13 It is proposed to redevelop and construct additions to the existing dwelling for the purpose of a crèche and synagogue, both to be operated by Chabad House of Glen Eira Inc. The Notice proposes to personalise the permit to Chabad House, Glen Eira.

14 The works proposed at ground floor level were summarised as follows in the statement of evidence of Mr Small:

* The majority of the work to the ground floor of the building involves internal alterations to create three crèche areas (Crèche A, B and C), bathroom and storage areas for each, a reception, office, kitchen and laundry.

* The setback of the northern facade of the dwelling is proposed to be reduced by filling in the existing verandah area [porch] which exists across the frontage, creating a consistent setback of 12.065 metres.

* A new entrance is to be created on the eastern elevation of the dwelling. This opening will provide the access to the synagogue at first floor level.

* The building is proposed to be extended to the south by between 4.0 and 6.0 metres with a pergola extending a further 3.0 metres to facilitate the crèche areas and a covered play area.

* Internal alterations are also proposed to the existing bungalow in the south-eastern corner of the site. This room will contain an activity room, storage area and bathroom facilities.

15 The works at the first floor were summarised by Mr Small as including:

* It is proposed to construct a first storey over the existing single storey building. A setback of between 11.07 and 12.12 metres to Glen Eira Road is proposed with a setback to the east of between 2.9 and 3.5 metres, a setback to the south of 18.0 metres and a setback to the west of 3.0 metres.

* The first floor level is open plan with curtains and folding walls separating the space into three separate areas for men, women and overflow...

* The first floor west elevation windows have a height above finished floor level of 1.7 metres. With the exception of two windows within the stairwell, the sill height of the windows on the eastern elevation is 1.7 metres above finished floor level with the first floor windows proposed along the southern elevation having obscure glass to a height of 1.7 metres. These windows are to be treated in accordance with the recommendations of the acoustic engineer.

* The existing fence across the site frontage is to be retained. New acoustic fencing is proposed around the eastern, southern and western property boundary.

16 We understand that the trees in the front setback area would be retained.

17 The crèche component of the use is separated into three rooms of 46.3, 49.5 and 34.4 square metres respectively. A play area of 292.2 square metres would be located at the rear of the building in addition to a small covered play area. The crèche is sought to cater for 40 children, although a limit of 30 is placed as a condition on the Notice of Decision. It is proposed that there be a maximum of 8 full time staff for the crèche with an additional two staff at the centre during the lunch time period between 12.00 and 2.00pm. A maximum of 6 staff is proposed by the Notice of Decision. The hours of operation are proposed to be from 8.00am to 5.30pm Monday to Thursday and from 8.00am to 4.30pm on Friday. The crèche would not operate on weekends. We were advised by Mr Naughton that the crèche would not be operational on High Holy Days that occur on weekdays.

18 The "regular" hours of operation for the synagogue are sought to be from 6.30am and 9.30pm, seven days a week. The types of activities carried out in the synagogue would include prayer services, private prayer sessions, religious education classes, enrichment programs, religious services (Jewish New Year - Rosh Hashana, Day of Atonement - Yom Kippur) and special events including wedding call ups and bar mitzvah ceremonies.

19 A list of maximum attendances sought at each Holy Day was tendered by Mr Naughton. We note that the evening attendances at many services, such as Shavout, Succot and Rosh Hashana, are estimated to be around 20 persons although there would be larger congregations on the eve of each of these occasions. The Notice of Decision has a complex set of "patron" limits at Condition 9. The proponent seeks to vary the maximum number on nominated days (Simchat Torah, Purim Night, Rosh Hashana and Yom Kippur) to 330 persons being the ultimate growth of the congregation compared with 200 required by Condition 9. The maximum would occur on 5½ days in a year involving day and night religious services.

20 The subject land is zoned Residential 1 under the provisions of the Glen Eira Planning Scheme ("the Scheme"). A permit is required to use and develop the land for the purpose of a place of assembly (synagogue) given the gross floor area of the building would exceed 180 persons and some social/recreational activities are proposed. A permit is also required to use and develop the land for a child care centre (crèche). It could be described as a place of assembly which is a Section 2 use.

21 A Development Contributions Overlay (Schedule 1) applies to the land.

22 Glen Eira is a Road 1 Zone, however, no change to the driveway is sought.

23 Car parking requirements are set out at Clause 52.06. A rate of 0.3 spaces per seat or net square metre, whichever is the greater, is required for a place of assembly. With an area of some 270 square metres, 81 parking spaces would be required whereas based on an average weekly attendance at the synagogue of 75 persons, 23 car spaces would be required. [Those figures are based on Mr Hunt's evidence, but the area of the upper level appears smaller in net terms]. Clause 52.06 sets out matters to be considered in assessing an application to reduce the car parking requirement of the Scheme. If the crèche is regarded as an undefined use, then no rate is nominated and parking must be to the satisfaction of the Council.

24 Various local policies at Clause 21 are relevant to the consideration of the proposal as is the local policy at Clause 22.02 that addresses "Non Residential Uses in Residential Zones". Among the range of policies included, we note the objectives of Clause 22.02 (inter alia):

* To encourage the development and location of new non-residential uses in areas which are compatible with the residential nature of the area and comply with orderly and proper planning principles.

* To successfully integrate non-residential uses into residential areas with minimum impact.

* To encourage proposals that retain the existing housing stock within the municipality.

* To ensure that adequate provision is made for appropriate on-site parking for all non-residential uses.

* To ensure that traffic generated by the use of the site is appropriate to the street and the locality and will not adversely affect existing traffic patterns and safety.

* To minimise the effect of non residential uses on the residential amenity by controlling staff levels, numbers of practitioners, hours of operation and the size and intensity of the use, as appropriate.

25 We also note the following policies set out at Clause 22.02 that are set out under various headings that we have not recited:

* Proposed development sites abut a main or secondary road and have vehicular access from a service road or side. Other locations may only be considered where it can be demonstrated that residential amenity will not be compromised.

* The proposal be located where minimal loss to the local amenity is likely from the operation of the use including the introduction of traffic and parking of cars.

* Building height, length and location not cause significant loss of amenity to neighbouring residents.

* Street frontage setbacks respect the amenity of the residents and the character of the neighbourhood.

* Existing dwelling stock be retained in preference to purpose built facilities.

* Sufficient carparking be provided on-site for all users.

* Carparks and accessways allow safe, convenient and efficient vehicle movements to and from the street.

* The standard carparking requirement will only be reduced where the Responsible Authority is satisfied that the area is supported with suitable levels of public carparking and public transport.

* Safe pedestrian access from the carpark be provided to the reception and waiting areas within the premises.

26 A range of performance standards are set out in this Clause which we have considered.

27 A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 15, 16, 18.02, 19.03, 21 and Clause 65 (general decision guidelines). All have been taken into account by the Tribunal. The Tribunal has also had regard to Melbourne 2030. We were also referred to Amendment C25 that is proposed to the Planning Scheme.

28 We have considered the submissions and evidence presented by the parties. That has been assisted by our inspection of the subject site, adjacent dwellings and locality that was undertaken after the second day of the Hearing. We do not recite all of the material presented, as the written submissions tendered by the parties are retained on file, although we do refer to some of the main points. We set out our findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme. The key issues are:

* are the proposed uses of the land acceptable in terms of the purpose of the Residential 1 Zone, the Scheme's policies and decision guidelines?

* is the built form acceptable in terms of streetscape and neighbourhood character considerations?

* is the layout of the proposal acceptable taking into account the dual uses proposed?

* would the proposal result in unreasonable off-site amenity impacts, notably in terms of noise and visual bulk (both in terms of the additions and proposed acoustic measures)?

* would the proposal result in unreasonable impacts in terms of traffic and car parking in the locality?

29 The proposal would primarily serve a local need and is supportable, in principle, in terms of the purpose of the Residential 1 Zone; the purposes of that Zone indicate that community, recreational, religious and educational uses which serve local community needs may be allowed within residential areas. The information provided to us showing the close proximity of many congregation members to the review site is relevant in this regard.

30 Unlike some municipal Schemes, the provisions of the Glen Eira Scheme give weight to the need to provide some non-residential facilities in residential areas and also specifically recognise the high proportion of residents of the Jewish faith that reside within the municipality. It is highly influential to our findings that the proposed use of the land as a synagogue with a community-based child care centre operated by the same body appears to derive strong support from the Scheme's policy directions. For example, Clause 21.01 refers to 15% of the municipal population being of the Jewish faith compared with the metropolitan average of 1%. Mr Small's evidence contained an interesting plan at a collector district level showing the significant proportion of persons who at the 2001 census nominated Judaism as their religion and resided within five kilometres of the review site. Moreover, Clause 21.08 acknowledges that some non-residential uses such as churches have a legitimate place in residential areas as follows:

Medical centres, churches, childcare and kindergartens all, quite clearly, have a place within residential areas. However, badly sited or controlled non-residential uses can progressively erode Glen Eira's residential nature. The Non-Residential Use in Residential Zones Policy has been developed to ensure that such uses are integrated into residential areas with a minimum impact or loss of residential amenity.

31 The policy at Clause 21.08 includes several objectives that are relevant to the current proceedings, such as:

* Encourage new buildings and works that are compatible with the residential character of the streetscape and neighbourhood.

* Encourage uses that have a minimal effect on residential amenity.

32 These are restated in some form at Clause 22.02. It is essentially the last of these dot points that is in issue in these proceedings, in addition to matters such as car parking and traffic movement which are also guided by specific policies at the state and local levels (eg. Clause 18.02 and 21.12).

33 Clause 22.02 is intended to be applied to assist in the exercise of discretion. We have set out the most relevant parts of the policy previously. In relation to compliance with the local policy at Clause 22.02, we note that the proposal:

* re-uses the existing building, which is encouraged by the policy.

* would not change the existing front setback of the building, although a second level would be added, as we discuss below.

* has a main road location but no access to a side road. We do not find this to be a fatal failing given the existing driveway condition that provides for one-way through movement around the front of the building. The critical issues focus on off-site amenity and parking, matters properly required to be considered (as identified by the policy) when considering applications relating to sites other than on a main road with access to a side road.

34 While we appreciate that the child care use differs to the established dwellings around the subject site, it is only sought to be a daytime facility operating on weekdays. It would be closed if a High Holy day falls on a weekday. Based on the hours sought, and provided that potential off-site impacts can be managed, the operation of a child care centre by the same permit applicant as the synagogue with either 30 or 40 children is not, in our view, unreasonable in this location.

35 We agree with the evidence of Mr Small that the day to day activities associated with the synagogue would be "low key" and it is the special events days that cause more intensive activity and have greater potential to create unreasonable off-site amenity impacts. In accepting this evidence, we give weight to Mr Small's description of the anticipated use of the synagogue as follows:

* The peak attendance at the synagogue is expected to occur on a Friday evening or Saturday morning with a maximum of 75 persons in attendance.

* Small groups (maximum of 15) people are expected to attend weekday morning services and Sunday services. The weekday morning prayer sessions will be finished by 7.30am with the Sunday services will commence at 8.30am and will be finished by 12.00pm.

* The weekday evening prayer and study sessions will commence at 6.00pm and be finished by 9.30pm. A maximum of 20 persons will be in attendance.

* Saturday evening services are expected to have a maximum of 20 people in attendance.

36 Mr Small's description of the anticipated use of the synagogue continues:

* For the festival religious events, total attendance could reach a maximum of 330 people. In the space of a year, this would occur only a limited amount of days per year... During these events, the ground floor will be utilised.

* Attendances at special events could reach a maximum of 230 people. Bah mitzvahs and wedding call ups held on Saturdays. There will be a maximum of 10 of these celebrations per year and these celebrations are held during the regular Saturday morning services.

37 In our view, the key issues focus on the multiple uses proposed, the ability to avoid unreasonable clashes in activities, and, related to that, the intensity of the dual activities. It is the larger occasions that Council seeks to limit to 200 persons and the permit applicant seeks approval for 330 persons that are critical, but certainly not the only matters in issue.

38 No significant issues were raised in relation to the form of the double storey additions to the existing building in terms of the impact on the streetscape, although the unrelieved form and mass toward the rear of the development were commented upon in Mr Verhoeven's evidence mainly in terms of off-site impacts.

39 The proposed works would essentially retain the front of the existing building in-situ with the associated driveways, landscaping and the side roller-door. The front setback would be unchanged although the area of the existing porch would be filled. The main and noticeable change would arise from the upper level addition essentially of the same footprint as the lower level with some recession along the western elevation. The building would extend further into the site than the existing dwelling but retain an area of open space to the rear, to be used as a play area essentially for the crèche.

40 There is no doubt that the proposal would present a considerable mass and bulk but it is relevant that it would sit in a context with double storey dwellings to its immediate east and west and a mix of single and double storey residences further afield.

41 The proposal would concentrate development to the front portion of the site adjacent to other double storey forms and a driveway. The retention of the rear open space and concentration of building to the north would limit impacts on single storey dwellings/units on adjacent properties to the rear portion of the land.

42 Contemporary styling with the use of render is proposed, and taking into account the setback that is deeper than adjacent sites and being mindful of the retention of landscaping to the street frontage, we find the outcome to be acceptable in terms of streetscape and neighbourhood character considerations given the purposes for which the building would be put and the built fabric of the immediate area.

43 There are several issues which we discuss under this heading.

44 The first matter relates to the operation of the site on the main festival and religious days when some 330 persons are sought to be accommodated on the land. We understand from Mr Naughton's submission that 330 is a figure that allows for some growth when compared with the current membership and is the "ultimate" number sought by the permit applicant.

45 A letter from Stokes Planning Pty Ltd to the project architect dated 1 March 2004 was tendered by Mr Naughton and refers to the requirements of the Building Code of Australia (BCA). It states that based on a net floor area in the building of 214.5 square metres, the maximum number of persons that could be accommodated would be 214.5 or 215 people. We were advised at the Hearing that this is the area for the upper level of the building and when more than 215 persons were in attendance the lower level crèche rooms would be used (without amplification equipment).

46 We have some problem with this arrangement in so far as it seems ad hoc and without proper planning if such circumstances requiring an overflow of congregation members arises. This is for several reasons:

* we understand that there may be some people attending the premises but not participating in the religious service who would be located at the lower level, such as parents supervising younger children. It is not clear how the different activities would be readily segregated if an overflow associated with the religious service, bar mitzvahs and wedding call ups did occur.

* it seems sensible to have all participants associated with a service within contiguous spaces if not they are not catered for within one space or assisted to participate by way of amplified systems in a separate space. It is not unusual to see a congregation overflowing into gardens or car parks around places of worship or into an adjacent hall in association with a major activity, but often amplification and other arrangements enable those outside the principal space to participate. In this proposal, the place of worship would be in a confined first floor area where there is less flexibility to manage larger gatherings when no amplification equipment is used.

47 We find that there are strong reasons, therefore, to require the religious services, bar mitzvahs and wedding call ups to be confined to the upper level (ie. 215 persons) with an additional allowance for some people/children to be in the lower level when the religious activities are occurring. A sufficiently flexible figure would be 250 persons maximum.

48 The second matter is the four tandem car spaces that are proposed along the east side of the site. We address the adequacy of car parking in detail below and here we discuss here the principle of relying on four car spaces in one tandem arrangement and their relationship to the synagogue entry.

49 The plans show four spaces in a single tandem row along the eastern boundary of the site and across the entry to the synagogue, which is to the side of the building. The proponent placed weight on the ability to avoid an overlap in operations of the synagogue and crèche contending that the spaces would not be occupied when persons are visiting the synagogue because the child care centre would not be operational at the same time. While the hours of operation may strictly achieve that outcome, staff of the crèche may arrive early and other persons may take longer to leave the synagogue. On busier occasions, it would be inappropriate for the entry to potentially be blocked and we are not convinced that making the front (crèche) entry available for the whole congregation is appropriate (rather that should be confined to disabled access only, as currently proposed). We therefore consider it reasonable for two staff spaces to be in tandem and these should be sited to the east of the synagogue entry. The existing roller door should be removed or relocated to the east side of the synagogue entry.

50 The main issues arising in relation to off-site impacts concern noise, the visual impact of the proposed works (including acoustic fencing), and overshadowing. These issues were raised in relation to most adjacent properties with much emphasis focussing on the townhouses abutting the western boundary of the review site.

51 We refer first to noise, and the associated matter of the height and form of any acoustic fencing.

52 There are several potential noise sources for nearby residents arising from the proposal:

* noise associated with the operation of the synagogue;

* noise associated with people arriving and departing the synagogue and crèche, mindful of the different entry points for the two uses;

* noise associated with increased traffic and parking on the review site, on streets near to the review site, or streets a further distance from the review site but used by those attending the synagogue.

53 We note that the upper level east and west facing windows are proposed to be double glazed and fixed. Windows to the lower level are proposed to be openable. Conditions 1(vii) and (viii) on the Notice refer to a 2.4 metre high acoustic fence being required to the south, east and west boundaries, grading down toward the street frontage to maintain sightlines for pedestrians.

54 Acoustic evidence was provided by Dr Broner, for the permit applicant. We do not set out the details of this evidence, although it is primarily focussed on the first three of the matters we have listed above. He concluded that a 2.7 metre high acoustic fence would be required for the proposed uses to essentially be inaudible from the adjacent properties most notably the townhouses to the immediate west of the review site. This was based on an "open window" scenario and taking into account the raised floor levels of the terraces and dwellings at No. 482 Glen Eira Road. His evidence was that the use of the lower level of the proposed development as an overspill area for larger gatherings would require a 1.8 metre high fence to address potential noise associated with open windows.

55 Dr Broner's evidence referred to the possibility of lowering the heights of some of the proposed acoustic fences on the basis that some degree of audibility is acceptable (a proposition put by Mr Naughton).

56 Mr Verhoeven had suggested that the acoustic fence be re-positioned into the site to avoid the high structure enclosing the neighbouring private open spaces, although Dr Broner's evidence was that such a proposal would reduce the level of sound attenuation achieved. The Council sought for acoustic fencing adjacent to the forecourt given the possibility of noise associated with gatherings.

57 We are satisfied that with the works proposed to the building and the provision of acoustic fencing adjacent to existing residences that noise associated with the proposed use can be adequately mitigated.

58 In reaching that view, we are persuaded by Dr Broner's evidence and have been cognisant of the presence of a garage forward of No. 1/482 Glen Eira Road and the position of the driveway associated with No. 486 Glen Eira Road that would separate the closest dwelling to the east from the synagogue entry.

59 The consequence is, however, a very high fence along the common boundaries. This is mainly an issue for the townhouses to the west, given their small side and raised terraces that would suffer a considerable sense of enclosure and shading from a fence of 2.7 metres in height, or around 2 metres higher than the 3 metre wide terraces. However, the front unit has access to further open space to its north (enclosed by a solid fence) and Unit 2 could utilise an area to the rear of the dwelling if desired.

60 We do not consider that "inaudibility" is the necessary test. While the review site is within a residential area, activities on adjacent properties are "part and parcel" of living in a community. A lower fence could achieve a sufficient level of acoustic protection without the extent of enclosure that would result from a 2.7 metre high fence. We propose adopting 2.4 metres along the east and west boundaries resulting in a fence of around 1.7 metres adjacent to the terraces. [The residents along the west side proposed a solid fence to 1.8 metres and clear glazed section above, a form of acoustic fencing that Dr Broner indicated could be effective and which we will accept]. We form our view based on the fact that the crèche is only to operate on weekdays between 8am and 5.30pm (4.30pm Fridays) and some daytime noise is not unreasonable. Confining the operation of the synagogue as we have set out previously would limit night time disruption. However, we find it reasonable to limit the extent to which the rear yard could be used by the synagogue congregation and that should be restricted to daylight periods.

61 We do not consider noise associated with the use of the two tandem spaces on the review site or associated with day/night activity on Glen Eira Road or adjacent side streets is a basis to reject the proposal. Those closest to the review site would be adequately protected by acoustic fencing.

62 Next we refer to the matter of visual bulk. Mr Verhoeven was critical of the continuous building mass down the site and the impact on the outlook from adjacent properties and shadowing impacts. We accept that there would be an increase in shadowing from the proposed development compared with the current situation (noting that the existing vegetation contributes significantly to shadows but in a dappled form). While we agree that the proposed addition is substantial, we have not been able to conclude that it is unacceptable taking into account the building mass associated with the function of the development, the position of the townhouses set close to the western boundary of the review site, the retention of vegetation on the review site and on adjacent sites and the ability to provide additional planting.

63 A final matter raised by Mr Jones concerned the possibility of a visible security presence associated with the synagogue, which he said was of concern to his clients. That is not a matter we have sought to explore in detail as it is a matter for the operator. It is not a matter that causes us to require any additional permit conditions or to reject the proposal.

64 The submissions and evidence on behalf of those opposing the proposal expressed considerable concern about the amount of on-site parking proposed for the two uses. Mr Verhoeven's evidence was that the amount of parking on site is inadequate for the proposed uses and may lead to the occupation of space within the driveway adding to congestion and other problems. He observed the greater number of on-site spaces provided at the Chabad House facility in Glenferrie Road, Malvern. He suggested that a car park could be added to the rear of the site.

65 There is no doubt that the proposal provides little on-site parking with two spaces to the east of the synagogue entry only realistically possible. There is the potential for some car parking to be provided at the front of the site along the driveway but that is not favoured by Clause 22.02 and in our view, the driveway would be best used for short-term activities such as drop off of children and convenient access to the synagogue for persons with more limited mobility.

66 With effectively only two on-site spaces, this proposal seeks a reduction in the parking requirement of close to 80 spaces (based on 0.3 space per seat or net square metre as set out in the Scheme) in relation to the synagogue use. Mr Hunt's evidence was that a rate of 0.2 spaces/person could be applied resulting in a peak demand on the Sabbath of 15 spaces (based on 75 persons attending) and 66 spaces on days with 330 persons in attendance.

67 The first significant point in considering the synagogue use is that car parking typically much lower than for other places of worship because:

* the facility would be close to much of the congregation, encouraging walking;

* congregations often involve or encourage family groups; and

* strict observance of the Jewish faith dictates that motor vehicles not be used on the Sabbath and most High Holy Days.

68 In Chabad House of Malvern Toorak Inc. v Stonnington CC [2001] VCAT 1448 (6 July 2001) Senior Member Monk said:

Off-street parking may cater for day to day - that is weekday religious observance and administration - but on the principal day of worship, namely the Sabbath which extends from Friday evening to Saturday evening, a car park is not a facility which members of the congregation are in a position to use. This is not to say however that all members are or are in a position to be observant of the "no driving on the Sabbath" rule. Many attempt to subtly evade the rule by "parking around the corner". The result is that, notwithstanding the main road location and the proximity to an activity centre, the local streets end up bearing some of the brunt.....I was persuaded, based on Mr Hunt's parking surveys and the evidence of Messrs Tashi, Kornhauser and Teperman, that for an "average" Sabbath - catering to the core community which may be said to live within a "reasonable" walking distance - that the parking generation rate due to non-observance is significantly less than the Planning Scheme's suggested ratio of 0.3 cars per person...

69 In the above case, a larger congregation of up to 450 persons was being considered and the site context was quite different compared with that in the current proceedings. The discussion led Senior Member Monk to rhetorically ask "Does the impact of this kerbside parking so greatly affect the amenity and safety of Embling Road and other nearby residential streets such as Haverbrack Avenue, to warrant a refusal of permit?" In the current proceedings, we must ask a similar question - would the impact of kerbside parking in Glen Eira Road and some side streets, such as Webb Street, Linlithgow Avenue and Tennyson Avenue, be unreasonable? This question is primarily focussed on occasions where:

* members of the congregation do not observe the "no-walking" rule or park a discrete distance from or at a discrete location from the review site;

* one or two occasions in a year when driving is allowed such as Purim Night at 250 persons based on our findings above (or around 100 for Chanukah Night);

* up to 10 celebrations in a year (based on the Notice of Decision) such as wedding call ups and bar mitzvahs when invited guests may not drive with approval sought for a maximum of 230 persons (compared with 200 on the Notice).

70 We are not able to conclude that the impact would be unreasonable albeit that levels of on-street parking would increase on Glen Eira Road and in adjacent streets. The impact is likely to be greatest a short distance from the site rather than immediately adjacent to the site on the Sabbath and major events with a "no driving" rule. Activities such as education classes and morning/evening prayers would see more cars immediately adjacent to the site and adjacent properties, in the order of 10-20 vehicles based on Mr Hunt's estimations. We do not find this to be unreasonably intrusive.

71 There would be three evenings with large numbers present. One longer period is Yom Kippur which may continue for 1.5 days. Only on Purim Night is driving allowed and this would be when demand for parking would be at a premium. In addition, wedding call-ups and bar mitzvahs would occur as part of a Saturday morning service while High Holy Day services such as Simchat Torah and Jewish New Year involve the largest attendances (330 persons as sought by the proponent or 250 persons based on our findings) during the daytime with 20 persons in the evenings on those occasions.

72 As occurs at places of worship involving other religions, there would be peak days (that can be likened to Christmas and Easter in the Christian Church) but that does not provide a basis for refusal in itself. That was a matter on which Senior Member Monk also commented. In our view, the situation of one or two peak days is also not a basis to require on-site parking when such a facility would be severely underutilised for most of the rest of the year. We find the arrangement as proposed to be acceptable in terms of parking impact given the ability to use spaces on a main road.

73 In relation to the child care centre, some on-street demand would be likely to be created, for example by staff, in addition to short-term parking within the driveway or on-street as adults drop-off or pick-up children. Mr Hunt estimated that the parking demand for the crèche would be three spaces on-street for staff (based four spaces available on-site) with the ability three cars to park in the driveway for pick-up/drop-off. The peak periods for the child care centre would not coincide with the synagogue on a weekday. In our view, the layout of the driveway facilitates a short term pick-up/drop-off arrangement and there is the ability for some on-street parking as required. That would be focussed close to the review site but again we do not find that to be unreasonable given the main road location and parking provided for adjacent residents within their properties.

74 We are consequently not persuaded that more on-site parking is required to service the crèche, warranting 30 child care places instead of 40 as Mr Verhoeven suggested. We are find that Condition 1(ii) requiring the driveway to be one-way and limited to drop-off/pick-up is appropriate.

75 We record that Mr Hunt suggested that it would be desirable to mark out car bays on-street to avoid cars parking over driveways. That would be sensible in our view and is a matter that can be taken up by the Council.

76 Mr Jones raised a concern in relation to pedestrian access across Glen Eira Road, particularly when those attending the site park on the north side of that road or streets further northwards. We recognise that the closest formal pedestrian crossing is at Bambra Road. Some visitors to the site may elect to take a route utilising the signalised intersection whereas other will not. We are not, however, persuaded that the absence of a designated crossing should cause the proposal to fail and we accept Mr Hunt's evidence in relation to the safety of pedestrians.

77 Traffic issues were not raised with the same vigour as car parking issues, but we briefly address the likely impacts of the proposal on Glen Eira Road and the local street network.

78 Mr Hunt's evidence was that the crèche (with 40 children) would generate a peak concentration of traffic activity between 9 and 9.15am, with around 20 vehicle movements to and from the site. We accept that this would not have a significant impact on the operation of the road network.

79 Other than on peak days, the synagogue would have a limited impact on the local street network and the operation of Glen Eira Road given the numbers of vehicles involved when driving is permitted.

80 In summary, we find no reason to reject the proposal for reasons relating to traffic impacts.

81 It follows from the above discussion that we intend amending the conditions included in the Notice to address some of the concerns raised by local residents and that we accept a number of the changes sought by the permit applicant. The main changes include:

* raising the maximum number of children at the crèche from 30 to 40, allowing 8 staff and two additional casual staff.

* we do not accept 330 persons on the main religious days including some High Holy Days as sought by the permit applicant, but consider a limit based on the capacity of the upper level to be reasonable (215 persons) plus an allowance for persons on the site that are not actively participating in the service (eg. adults supervising young children); with a total of 250.

* we find no need to limit the numbers more particularly between day and night on those special days as that would simply add to the complexity of an already set of complicated conditions.

* we will adopt the preferred acoustic fence height and form stated by Mr Jones on behalf of his clients (understanding that was their fall-back position).

* there is a need to require a landscape plan and related conditions associated with the implementation of that plan and maintenance.

* there is a need for a condition requiring an arborist report to ensure that trees along the common boundaries of the review site, and on adjacent sites, that we were advised would be retained are in fact retained. This is an issue particularly in relation to acoustic fencing works.

* we will adopt the condition suggested by Mr Naughton requiring the operator to leaflet drop residents of nominated streets at the commencement of each calendar year advising of advising of the dates of High Holy days in that year when demands for kerb side parking may increase. Similar notice of other events with attendances likely to exceed 100 people will also be required be given at least three weeks prior to the event.

82 In our view, the Council has attempted to achieve a balance between supporting uses that would serve the local community and managing potential off-site amenity impacts. We find that based on some variations to the conditions included in the Notice, the dual uses proposed for this site are acceptable. We are not persuaded to vary all of the conditions sought by the permit applicant, although we are persuaded to vary some, for reasons we have set out. The restriction we have placed on attendances on main religious and festive days is primarily related to the capacity of the upper level of the building.

83 For the above reasons, we conclude that the decision made by the Responsible Authority should be affirmed. Accordingly we will direct that a permit issue, subject to the conditions included on the Notice of Decision dated 6 November 2003 with some conditions varied and several conditions added.

Environment Act 1987

Green v Chabad House of Glen Eira Inc. [2004] VCAT 696

At a glance

Court

Decision date

Source

Judgment (184 paragraphs)

Green v Chabad House of Glen Eira Inc. [2004] VCAT 696 (19 April 2004)

Parties

Legislation Cited (1)