[2004] VCAT 980

The decision of the Responsible Authority is affirmed. It is directed that a permit must not be granted in respect of planning permit Application No. 2003613, to use the land at 5 Talbot Street, Ballarat, for a medical centre.

Mr Mike Kaufmann, Town Planning Consultant. Mr Kaufmann called the following persons to give evidence:

Mr Ian Clift, Mr Pat Cashin, Mr Chris Munday, Mr Brian Maloney, Mr Rob Carroll, Ms Fiona Carroll and Mr Andrew Gunn in person

1 This was an application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision by Ballarat City Council to refuse to grant a permit to use land zoned Residential 1 at 5 Talbot Street, Ballarat for a medical centre, namely a two practitioner, audiology clinic with off-street parking for 10 cars, as well as to display a business identification sign of 1 sq m.

2 This application for review raises the perennial question of how to address the attraction for medical centres to locate within residential areas within the sphere of influence of major hospitals and at what stage they might start to undermine the residential nature or sense of neighbourliness of the host residential community.

3 The permit application was lodged with the Responsible Authority in August 2003. Following the giving of notice of the application 33 objections were received. The officer's report to Council summarised the objector's concerns as:

4 At its meeting on 12 November 2003 and not withstanding its Planning Officer's recommendation to grant a permit, the Responsible Authority refused a permit on the following grounds:

1. The proposed use will result in the loss of a dwelling formerly used for residential accommodation in a residential zone.

2. There are many existing medical centres which is contributing to the loss of residential amenity in the area;

3. The proposed use will have a detrimental impact on the residential character of Talbot Street North;

4. The proposed use will have a detrimental impact on the amenity of residents in Talbot Street North by way of traffic generation, security and on street parking;

5. It is premature to issue a planning permit for the use prior to the completion of the study on the economic and social impact of medical centres (which is to include maintenance of character and amenity).

5 The applicant's stated grounds for review are essentially a rebuttal of the Council's reasons for refusal.

6 The hearing of this application took place in Ballarat. Prior to the hearing the Tribunal inspected the subject land and surrounding neighbourhood.

7 Each of the persons who made submissions or gave evidence in this proceeding tabled and spoke to written submissions or witness statements. These, together with the other documents tabled in the course of the hearing have been attached to the Tribunal's file.

8 The subject land is located on the west side of Talbot Street North one property to the north of Sturt Street, Ballarat's main central city thoroughfare. The Town Hall is approximately 1.2km to the east.

9 The subject land has an area of 1,026 sq m. It is occupied by a single storey weatherboard dwelling dating from the Federation period and is set in a very attractive and well treed garden, enclosed across its frontage by a dense hedge.

10 The land is bordered on its southern side by a sealed right of way known as London Place and on its western side by another sealed right of way known as Quarry Lane. As noted in the officer's report to Council both lanes are frequently used by residents, visitors and business in the area. Vehicle access to the land is currently available from London Place via a 3.5m wide crossing located approximately 40m from Talbot Street North.

The area is characterised by established single storey residential dwellings from the Victorian and Federation - Edwardian eras with some inter and post war styles as well. The Country Fire Authority (CFA - Region 15 Head Quarters) is immediately opposite the site. Talbot Street is sealed with mature aged exotic street trees on both side and on street parking is available within the gravel shoulders of the road reserve.

12 Notably also Talbot Street is located within an attractive residential precinct much of which is protected by a heritage overlay. Some two streets to the east across. Ascot Street and Windermere Street, is the Ballarat Base Hospital and to the north of Ascot and Windermere Streets, across Muir Street, there is the St John of God Hospital and the Australian Catholic University.

13 It is proposed to convert the existing dwelling into a medical centre to house an audiology clinic for no more than two practitioners at any one time. In a letter, being Attachment 1 to Mr Lee's written submission dated September 10, 2003 the applicant described the clinic as having been established 20 years ago to provide early diagnosis of hearing loss in children, diagnostic services for the medical profession, prevention of noise induced hearing loss, and auditory rehabilitation for those with hearing loss. The clinic currently operates from premises at 22 Drummond Street. The letter advises that the clinic has outgrown these premises and that Drummond Street has also become very busy and noisy following the expansion of both hospitals and increased traffic flow through Drummond and Mair Streets.

14 Conversion of the dwelling to a clinic would involve few internal changes. The two bedrooms would become consulting rooms, the living room would become a waiting room and the kitchen and service areas would be used as staff amenities.

15 In order to create the 10 space car park in the rear - to be accessed via London Place - various outbuildings as well as five of the existing 18 trees in the backyard would require removal. These trees and outbuildings are mostly located along the northern boundary close to the neighbouring dwelling and therefore not particularly visible from Talbot Street or the adjacent right of way. The most significant tree on the land, a large Pin Oak of some considerable height and spread and located midway along the rear, western boundary, would not require removal. A sign indicating the location of the premises and reading Ballarat Hearing Clinic with the centre's name and phone number and having dimensions of 1m x 1m, would be displayed at the front boundary in front of the existing hedge.

16 The officer's report to Council describes the proposed hours of operation as being 8.00 am to 6.00 pm Monday to Friday and 8.30 am to 1.00 pm Saturdays. It is also reported that a maximum of two patients, two practitioners and two administration staff would be present at any given time plus up to two additional patients at hourly intervals.

17 The subject land is zoned Residential 1 under the Ballarat Planning Scheme and is also within a Heritage Overlay.

18 Within the Residential 1 Zone a permit is required pursuant to Clause 31.01-2 of the scheme to use land for a medical centre which is a Section 2 use in the zone table at Clause 32.01-1.

19 Clause 56.06 sets out parking requirements for various land uses. For a medical centre five spaces are required per practitioner unless a permit is granted to reduce or waive this requirement. Because the required number of spaces are to be provided no permit is required under this clause.

20 The land is also within a Heritage Overlay and a Design and Development Overlay. The provisions of the Design and Development Overlay only affect new buildings and are therefore not relevant.

21 Within the Heritage Overlay a permit is required pursuant to Clause 43.01-1 to demolish any buildings or works as well as to construct new buildings and works including advertising signs. The sign and the demolition of the outbuildings therefore require a permit. The removal of the outbuildings was not particularly in issue and need not be referred to further save to confirm that the significance of the buildings or built form making up this residential precinct have been identified as worthy of protection under the provisions of the Planning Scheme.

22 The display of a business sign also requires a permit pursuant to the advertising sign controls at Clause 52.05 of the scheme. The Category 3 - high amenity areas - provisions apply to signs within a Residential 1 Zone. The display of the sign was not particularly in issue save to the extent that its existence would reinforce the non-residential nature of the building which is a primary issue in contention here.

23 Clause 65 of the Scheme sets out decision guidelines that must be considered, as appropriate, before deciding on any application for a permit under the Ballarat Planning Scheme. This clause commences with the following relevant statement:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

24 The decision guidelines most relevant to this application for review are the purpose of the Residential 1 Zone, any effect on the amenity of the area, and the State and Local Planning Policy Provisions that refer to residential development and to the provision of health related facilities.

25 No discussion of the principal issue in this application can avoid reference to the stated purpose of the Residential 1 Zone. In addition to implementing the State and Local Planning Policy Framework and encouraging a diversity of dwelling types and development that respects the character of the neighbourhood, a purpose of the zone is also:

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

26 A question that arises is the means for establishing whether a location is appropriate and the degree to which a use should demonstrate that it serves a local community need.

27 In the face of the very wide discretion afforded under the VPP standard format planning scheme provision it is to the Policy Framework underpinning the new format planning schemes that one must go in order to determine how, in a particular instance this otherwise wide discretion is to be guided.

28 At Clause 20 of the Scheme, referring to the Local Planning Policy Framework, the operation of the Municipal Strategic Statement (MSS) and the local planning policies is described.

29 The Municipal Strategic Statement is described as a concise statement of the key strategic planning, land use and development objectives for the municipality and the strategies and actions for achieving the objectives. The clause goes on to acknowledge that the MSS provides the strategic basis for the application of the zone, overlays and the scheme's particular provisions as well as for decision making by the Responsible Authority. A local planning policy is described as a policy statement of intent or expectation. It states what the Responsible Authority will do in specified circumstances or the Responsible Authority's expectation of what should happen. A local planning policy is described as providing guidance for decision making on a day to day basis. It can help the community to understand how the Responsible Authority will consider a proposal. The consistent application of policy over time should achieve a desired outcome.

30 No reading of the Ballarat Municipal Strategic Statement can fail to appreciate an inherent concern over the possible loss of a sense of social cohesion within residential areas abutting Ballarat's two major hospitals due to the attractiveness of the area around the hospital for the location of specialist medical centres. Equally one could not fail to detect the importance of the hospitals to Ballarat's economy and to its regional significance. Indeed at Clause 21.17 of the Scheme key issues said to be faced by Ballarat or which will influence Ballarat's future include; the location of medical facilities and loss of urban character in residential areas within the older central areas.

31 At Clause 21.10-2 referring to issues to be considered in relation to the supply of services and infrastructure to Ballarat, managing the locational aspects of the health sector is referred to and a particular strategy at Clause 21.10-4 is to encourage health related services to locate within the Ballarat Central Business Area where they serve the region and in neighbourhood areas where they have a local focus. The subject land is neither in the CBA or a neighbourhood area, although Sturt Street extends into Ballarat's CBA.

32 At Clause 21.11-4 Residential Development Strategies include discouraging the loss of existing housing stock by conversion or redevelopment to non-residential use

33 Specific local policies at Clauses 22.01, 22.03 and 22.09 refer to residential development, to commercial land use and development and to health facilities respectively. With regard to residential development objectives include providing for a wide range of housing choice, diversity, form and affordability including infill and multi-unit development as well as facilitating urban consolidation within older established areas and protecting areas identified as being of historic and conservation value. In terms of commercial land use, the development objectives include discouraging the loss of existing housing stock by conversion to or redevelopment for non-residential purposes.

34 The Health Facilities policy at Clause 22.09-2 has specifically as an objective to provide for the location of new health and medical facilities. The basis for this policy is set out in full below:

Ballarat is a significant provider of health and medical facilities within Western Victoria. At the top of the list of medical facilities are the Ballarat Base and St John of God Hospitals with a combined total of over 450 beds and employing over 1,500 staff.

Their adjoining locations in Drummond Street North has had a significant impact on the location of other medical facilities within the City. Of the 128 medical and paramedical clinics within the City of Ballarat, 37 are located within the land bounded by Sturt, Lyons, Mair and Drummond Streets, immediately to the east of the Hospitals. A further 31 are located one residential block to the north, south, east and west of this land.

While the residential character of these areas has generally been retained, their residential amenity has been significantly eroded. The "Health and Medical and Professional Land Use Strategy" adopted by Council in October 1995, addresses the issue of the location of medical facilities, particularly within the vicinity of the two hospitals.

35 The specific provisions of the policy are set out at Clause 22.09-3 as follows:

* The importance of the medical profession is recognised as a major contributor to the Ballarat and regional economy.

* General practitioners (especially single practitioners) be encouraged to locate in neighbourhood centres or in buildings adjacent to such centres, particularly in those poorly serviced residential neighbourhoods.

* Medical practitioners be encouraged to located within the Ballarat Central Business Area particularly where the practitioner is serving more than a single neighbourhood.

* The further clustering of medical facilities within the vicinity of the hospitals be discouraged, particularly where this results in the loss of residential land uses in the area.

* New medical facilities be permitted to locate within the vicinity of the hospitals where these are to be on the east side of Drummond Street between Sturt and Webster Streets or on the north side of Mair Street between Drummond and Little Raglan Streets.

* No new medical centre be permitted to establish on any land included in the Residential Zone and being within the area bounded generally by Eyre Street, Ripon Street, Wendouree Parade, Mill Street, Loch Avenue, Creswick Road, Claxton Streets, Davey Street, Mair Street and Lyons Street (as shown in Map 1 to Clause 22.09). This does not apply to land on the east side of Drummond Street between Sturt and Mair Streets and land on the north side of Mair Street between Drummond and Little Raglan Streets or to purpose built medical centres located within the hospital grounds.

* Any application for medical centres must be assessed using the Medical Centre Code of Practice - October, 1995.

The provisions of this policy which discourage clustering of medical centres within the vicinity of hospitals, and which provide that no new medical centres be permitted to establish within a defined area, have no effect after November 30, 1999.

37 The subject land is within the defined exclusion area depicted on the map at Clause 22.09. It was agreed by all parties that these expiry provisions, which fall under the heading Expiry of certain provisions, apply only to certain of the dot points in the policy - namely dot points four and six.

38 The Tribunal was advised that the expiry clause had its geneses in the report of the Panel/Advisory Committee that had reviewed Ballarat's new format Planning Scheme. The Panel, in considering the medical exclusion area (at that time to be identified in an Incorporated Plan Overlay) expressed a number of concerns, namely:

* The importance of health care services for the region being identified as a strategic strength.

* The restriction of the development of health care services from a significant area around the main hospital being inconsistent with the strategic objectives of promoting regional health services.

* The major concern being potential impacts on residential character and amenity.

* The potential for the overlay to have the effect of distorting the market by creating an artificial supply situation whilst simultaneously promoting the strategic significance of health services.

39 The Panel concluded that the Incorporated Plan Overlay is inconsistent with Council's strategic objective. Consideration should be given to its removal and replacement by a local policy dealing with residential character and amenity rather than artificial restrictions on the land use itself.

40 In response to the Panel's concerns the Minister for Planning approved the new format Scheme with the exclusion area identified via the Clause 22.09 local policy but included the expiry date of 30th of Novembe 1999. In March 2000 the Council placed a Planning Scheme amendment, Amendment C27, on public exhibition. This amendment was developed to address the concerns of the panel and to provide an alternative planning mechanism to the expired policy provisions.

41 The exhibited amendment was similar to a previous Council policy that had sought to limit the establishment of additional medical centres within the Medical Exclusion Area to areas within the hospital grounds and the area formerly covered by a Residential/Office Zone to the east of the two hospitals - that is to say on the other side of the hospitals to Talbot Street North.

42 As a result of submissions in respect of the amendment the Council resolved to revert to the current policy that prohibits the establishment of medical centres within the Medical Exclusion Area including the former Residential/Office Zone - other than for the strip of land on the eastern side of Drummond Street between Sturt and Mair Streets and the strip on the north side of Mair Street between Drummond and Little Raglan Streets.

43 The Panel appointed to consider the submissions in relation to Amendment C27 recommended its abandonment, again due to what the Panel regarded as an insufficient strategic basis as required by its Strategic Assessment Guidelines. The Panel noted also:

The Responsible Authority has still not reconciled a fundamental contradiction in their views to the promotion of medical and health facilities with the protection of the residential amenity and urban character.

44 The Panel recommended that an economic study be undertaken to provide a sound strategic basis for the medical and allied health sector. I was advised that no such study has been undertaken.

convinced that the widespread further agglomeration of medical offices would be undesirable and counter to the primary objectives of the Residential Zone.

46 The Panel went on to conclude that whilst it was most sympathetic to the desire of those who made submissions calling for the protection of this very attractive area, the mechanism and the drafting of the local policy failed in that it was not strategically driven and purported to override zoning provisions. The Panel also held that the amendment failed to develop the Code of Practice into a sound performance based method of assessing applications for medical practices. It came to the view that there was no way in which these problems could be readily resolved without major changes to the content of the MSS and the local policy and therefore recommended that the amendment be abandoned.

47 The Panel also stated that the existing policy could provide interim protection until the Council had resolved the issues.

48 The Medical Centre Code of Practice - October 1995 referred to in the last dot point of the Health Facilities Policy originally appeared in the 1995 Health, Medical and Professional Land Use Strategy Plan. As noted by Mr Lee at page 11 of his written submission, despite the Panel finding that the amendment had failed to develop the Code of Practice into a sound performance based method of assessing applications for medical practices, and that the Code should be reviewed, it nevertheless recommended that in the interim the Code be made an incorporated document.

49 The officer's report to Council which recommended the grant of a permit applied the Code of Practice checklist to the various elements of the proposal that are referred to in the checklist and determined that the application warranted a score of 99 to 80. According to the Code this score allows for a conditional permit. A score of 100 to 130 is suggested to warrant an unconditional permit and below 49 a refusal. The elements listed in the Code of Practice which, depending on the characteristics of the particular application can receive a score of either 0, 3, 6 or 10 are road location, lot coverage, access to buildings, disability access, use of an existing building, on-site car parking, signage, hours of operation, percentage of landscaping, style of fencing, solar orientation, response to overlooking, proximity to public transport and proximity to other medical centres and community centres.

50 In Mr Lee's submission the incorporation of the Code of Practice without the review that had been recommended in the Panel report was inappropriate. He was particularly critical of the Code's weighting system, a criticism shared in fact by Mr Kaufmann.

51 It is difficult to know what to make of or how to apply the local policy and Code of Practice in the context of the uncertainty arising out of the abandonment of Amendment C27.

52 As a minimum it must be acknowledged that the Local Policy Framework is very wary about the on-going conversion of existing dwellings to medical centre usage within the vicinity of Ballarat's major hospitals. The concern arises due to the potential to undermine the residential amenity or sense of neighbourliness or social cohesion in this inner-urban residential precinct which, in a strategic sense is seen as providing an important opportunity for residential occupation given its benefits of close proximity to services including the CBA, public transport, schools and recreation. Parts of this precinct, primarily that within the former Residential/Office Zone in the pre-VPP format Ballarat Scheme have already had their residential amenity eroded by being host to 128 medical clinics including 37 in the former Residential/Office Zone and 31 within one block of that area.

53 A former policy was to limit such conversions to no more than 50% of properties in a street and with no facility to exceed a floor area of 150 sq m. According to the C27 Panel Report the 50% occupation was reached by the early 1990s although by the time of the Panel hearing there was evidence of a decline, with the percentage being less than 40% in some areas.

54 Attachment 2 to Mr Cashin's submission is a telling document. It identifies the location of these medical centres, other commercial premises, schools and the hospital within the general area bounded by Dana Street, to the south of Sturt Street, Dawson Street to the east, Pleasant Street to the west and Webster Street to the north. Talbot Street North is the only remaining intact residential precinct north of Sturt Street and even it has the CFA headquarters located on the corner of Sturt Street and opposite the subject land. The residential properties of Talbot Street North abut an equally intact residential precinct on the west side of Ascot Street and with one exception, on the east side of Rippon Street, as well as on the south side of Mair Street. Rippon and Ascot Streets however have medical centres or other commercial uses on their opposite sides and of course on the north side of Mair Street there is the university and the hospital.

55 I find it understandable that the respondent objectors, most of whom reside in this now quite rare residential pocket adjacent the hospitals, would see their neighbourhood vulnerable to future pressures for medical centre conversions. A clear concern expressed by the respondent objectors was the prospect of the precedent that a grant of a permit for this site would have for further conversions within their neighbourhood.

56 The case for the applicants was that the conversion of this particular dwelling would not set a precedent in Talbot Street as there is no other property with side access to a car parking area and with sufficient room for the requisite number of spaces to be provided. It was Mr Kaufmann's submission also that the conversion, except for the small sign above the front fence would have little if any impact on the visual character of the neighbourhood, especially given the ability to maintain a majority of trees in the rear yard. Mr Kaufmann also relied on the site's proximity to Sturt Street and the existence of the CFA headquarters opposite the subject land as demonstrative of some existing erosion of residential amenity at this end of the street, and therefore justification to take advantage of this lesser amenity.

57 In arguing this way Mr Kaufmann seemingly failed to note the inconsistency between his existing eroded amenity argument and his contention that the proposal would not create a precedent. Clearly the residential erosion by the CFA was being used as some sort of precedent for other non-residential usage. Interestingly also, Sturt Street to the south and west of the subject land is itself zoned and used for residential purposes, albeit that on its southern side and to either side of Ascot Street North to the west of the CFA headquarters, Sturt Street is zoned Business 1.

58 If the ambit of the Tribunal's discretion in this case had been limited to a consideration of whether conversion of this property to a medical centre use would affect the natural or built form visual character of the property and therefore appear at odds with this heritage protected neighbourhood I would have held that it would not. The issues however go beyond this.

59 While a Residential 1 Zone may accommodate a limited range of non-residential uses, the proviso in the zone purpose is that they must be appropriately located and serve a local community need. It is reasonable to infer that the intention behind this accommodation of other uses is to add to the enjoyment or pleasantness of residential areas. For example, to enable the local community to have quick and easy access to the services of a GP in times of need or so that parents can walk their children to school or to the park or that basic items such as bread, milk and newspapers can be conveniently obtained. Such non-residential uses can serve to enhance the amenity of a residential area, making it a more pleasant and convenient place within which the members of a local community can live, socialise, be educated and cared for when sick. There can come a time however when the benefits of such propinquity are outweighed by the loss of the very community that the non-residential uses were intended to serve. When residential amenity is eroded rather than enhanced by such non-residential uses and the purposes of the zone is undermined.

60 It seems to me that this time has been reached in Talbot Street North and nearby and that the residential community of Talbot Street North would not benefit from the addition of a further medical centre. Indeed quite the opposite. I agree with Mr Cashin that the CFA headquarters is non-residential use enough and that the loss of this existing dwelling to Talbot Street's housing stock is very likely to undermine the sense of residential community so obviously apparent in the submissions made to this Tribunal. Previous divisions of the Tribunal have referred to the tyranny of small decisions and how over time such small decisions can result in unacceptable impacts. It is often difficult to know when the point has been reached beyond which a death by a thousand cuts is likely to take place. I have ultimately been persuaded that, on the balance of probability, it has reached that point here.

61 Having regard to the clear concerns expressed in the Local Planning Policy Framework at the loss of residential zoned land from residential use I have been ultimately persuaded that residential usage in Talbot Street North warrants retention in as intact a form as possible in order to serve the important role of providing for well serviced and located inner urban accommodation and that to have accommodated the CFA headquarters goes far enough in terms of its contribution to non-residential uses. Accordingly the decision of the Responsible Authority is affirmed and it is directed that no permit issue.