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[2006] VCAT 2204
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-10-30
Original judgment source is linked above.
The application seeks to develop accommodation (Residential hotel) and conference facilities (function centre) at the Willow Creek Vineyard.
The proposed uses are to be additional to the existing cellar door sales and restaurant uses which presently operate at the site.
The proposed development comprises a 40 room hotel building to be sited to the east of the existing car park in an area that is currently grassed and treed.
The proposed building has a north-south alignment, with a length of 68 metres (approx) and a width of about 27.5 metres (approx). It is proposed to be set back 8 metres (approx) to the south of the original homestead building, but connected to the rear (west side) of that building by a glass corridor.
The ground floor of the hotel is to comprise the conference area, restaurant, pool areas and 13 hotel rooms. The remaining 27 hotel rooms are to be at first floor level. The first floor rooms are proposed to feature extended balcony areas to maximise views across the surrounding vineyard.
The wall height and building height of the conference centre are proposed to vary between 7.2 metres to 9.3 metres.
The building finishes will be varied, but for the most part will comprise stucco finish masonry and glazing. The southern end of the building will sit on a "heavy stone base", containing a "barrel room".
The existing homestead building is proposed to be converted for use as a reception lounge for the proposed hotel with a glass corridor extending to the conference centre from the cottage.
A minor extension (approximately 30m2) is proposed to the existing wine tasting room that forms part of the existing facilities.
A new crushed rock surface carpark (49 spaces) to service the hotel and conference facilities is proposed on the east side of the proposed hotel.
A new roundabout and guest drop-off area is also proposed to the north of the homestead building.
The Residential Hotel and Conference Centre is proposed to operate 24 hours a day with liquor licence hours as follows:
a)
Monday to Saturday 7am to 1am the following day;
b)
Sunday, Good Friday, Anzac Day 10am to 1am the following day.
The permit applicant intends that patron numbers across the whole of the property will not exceed 150 patrons at any one time.
10 The review site is included within a Green Wedge Zone and abuts a Road Zone Category 1 (Balnarring Road) and is subject to the following Overlays:
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Environment Significance Overlay, Schedule 10 (Upland Basalt Slopes).
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Environmental Significance Overlay, Schedule 17 (Streamlines). However, the proposed development is outside of the area affected by the ESO17.
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Environmental Significance Overlay, Schedule 28 (Mornington Peninsula Bushland) and Vegetation Protection Overlay, Schedule 2 (Significant Treelines) which again apply to the cypress pines along the driveway and not to the area affected by the proposed development.
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Heritage Overlay, Item 12 relating to the existing homestead and including approximately 30m of land surrounding it.
11 The permit triggers that are required include use permits for function centre and a residential hotel. Buildings and works permits are required under the Green Wedge Zone and Environment Significance Zone and for the Heritage Overlay Area. Vegetation removal requires a permit under the Vegetation Protection Overlay 2. A permit is required for the use of land to sell and consume liquor because the hours of operation are proposed to be extended[1] and finally a permit is required to reduce the car parking from potentially 95 down to the 49 proposed to be provided.[2]
12 It is important to note that pursuant to the Green Wedge Zone, Function Centre and Residential Hotel have further conditions that must be satisfied in order for them to be section 2 uses. In terms of Residential Hotel this use must be less than 80 bedrooms and must be an activity that is used in conjunction with an existing use of the land, which includes, amongst other things a winery or agriculture. In terms of a Function Centre the use must for less than 150 persons and again must be in conjunction with an agricultural or winery use. Finally it is noted that when a function centre is being used in conjunction with a restaurant the total number of patrons is limited to no more than 150.
13 There are a raft of policies in the planning scheme[3] set out to protect green wedges from inappropriate development by (including)[4]:
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Supporting development in the green wedges that provides for environmental, economic and social benefits.
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Protecting important productive agricultural areas such as ... Mornington Peninsula.
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Protecting areas of environmental, landscape and scenic value.
14 At Clause 35.04 the purpose of the Green Wedge Zone is further expanded to include:
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To conserve and enhance the cultural significance and character of open rural and scenic non-urban landscapes.
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To encourage use and development that is consistent with sustainable land management practices.
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To recognise, protect and conserve green wedge land for its agricultural, environmental, historic landscape, recreational and tourism opportunities, and mineral and stone resources.
15 At Clause 17.04 Tourism policy suggest that there should be encouragement for a range of well designed and sited tourist facilities, including integrated resorts, motel accommodation, etc.
16 Agriculture policy is set out at Clause 17.005 and includes seeking protection from unplanned loss of productive agricultural land due to permanent changes of land use and to enable protection of productive farmland which is of strategic significance in the local or regional context. It goes on to suggest that in considering proposals to subdivide or develop agricultural land the following factors must be considered:
•
The impact of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.
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The compatibility between the proposed or likely development and the existing uses of the surrounding land.
17 In terms of agriculture and vineyards the Municipal Strategic Statement states[5] inter alia:
Vineyards are an increasingly important industry on the Peninsula. The Peninsula's 40-plus wineries attract more than 150,000 visitors a year and the continued growth of this industry contributes to marketing of the region as a recreation destination with a range of all season attractions.
The Municipal Strategic Statement and Local Planning Policy Framework suggests when looking at strategic challenges and opportunities that[6]:
The rural and coastal landscapes of the Peninsula reflect diverse landforms, environmental systems and land use histories. They provide the basis for recreational experiences and a "sense of place", that have a strong cultural significance. Much of the Peninsula's attraction for recreation is connected to this "cultural capital" and a key challenge is to ensure that land use and development does not lead to incremental change that devalues the Peninsula as a recreational area.
In this sense , sustainable development is seen as that which supports the inherent values of the Peninsula and provides opportunities for access, understanding and enjoyment rather than introducing elements that are disruptive, intrusive or out of character.
18 Planning policy for rural areas[7] is set out as a framework expressed in three components:
a
Conserving of environmental values.
b
Supporting agriculture and primary production.
c
Maintaining and enhancing landscape, cultural and recreational values.
19 Thus in supporting agriculture and primary production policies attempt to prevent the establishment of uses and development which are incompatible with the agricultural activity of the land and ensure that recreational developments do not impact on the rural character of the area or the continued use of land for rural pursuits by their nature and scale.
20 The local policy[8] discusses commercial and industrial uses within rural areas. Again its key objective is effectively to protect and conserve the rural landscape and character of the Peninsula as a major recreational resource of both local and wider metropolitan community. It suggests that it is inappropriate to encourage the provision or facilities and services that generally support the ability to experience the Peninsula's natural and cultural recreational values including, the provision of short term and home hosted accommodation, host farms and similar facilities. The relevant objectives under that clause include:
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To prevent the establishment of use and development which would reduce the distinctive character of the Peninsula's rural landscapes.
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To encourage tourism and recreational uses that minimise the adverse impacts on the amenity of local residents.
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To encourage the provision of facilities which support the recreational role of the Peninsula.
21 These policy objectives strongly suggest that commercial uses in the rural areas should be limited to those which demonstrate a direct link to the rural activities or the provision of accommodation services and facilities linked to the Peninsula's role as an area providing opportunities for outdoor and unstructured recreation associated with the Peninsula's natural and cultural heritage values.
22 It is further suggested that large scale proposals must be supported by site analysis and design response. This it suggests is necessary to ensure that proposals will have no significant negative impact on the landscape character of the area, the amenity of adjoining landowners or the agricultural use of land and to that extent suggests that the minimum lot size for such a proposal should be the minimum area required in the zone. In this instance, in a Green Wedge Zone, the minimum lot size is 40 hectares. This in the view of the responsible authority is to ensure sufficient area and dimensions are provided to maintain a suitable buffer to adjoining properties.
23 The policy goes on to suggest that applications that are likely to generate significant traffic volumes must demonstrate the existing road infrastructure can accommodate the additional traffic without detriment to existing road users or adjoining landowners. It further suggests that all car parking required by a commercial use in a Rural Zone must be accommodated on the land and should be sited so as to minimise its impact on the rural landscape character of the site and surrounding locality. It specifically refers to restaurant facilities in rural areas and that such uses should generally avoid night time operation due to the potential impact on the rural amenity from additional traffic, noise and light.
24 Having briefly set out some of the key policy directions in the planning scheme it is appropriate that this Tribunal now addresses its consideration in relation to this proposal.
25 Not surprisingly the submissions of the parties to these proceedings placed different emphasis on the same policies outlined within the planning scheme.
26 Council and the objectors, through Mr Umbers, and individually, drew attention to concerns that this proposal did not satisfy the "in conjunction" tests, did not advance or enhance the rural character of the area nor was it appropriate for such a small parcel of land. Finally, the objectors raised the amenity impact that may arise from this proposal through traffic, noise and visual blight.
27 Mr Barton and his experts on the other hand submitted that the proposal, in terms of the way the wine industry operated, was consistent with the "in conjunction" tests and was required essentially for the ongoing viability for this type of agricultural enterprise and importantly would not have any unacceptable off-site impacts.
28 In my view the questions raised at the commencement of these reasons by the Council as to the tests to be applied are appropriate in order to determine this matter.
Does the proposal satisfy the "in conjunction test"?
29 The planning scheme makes it very clear that uses such as residential hotel, restaurants and function centres are not permitted within the Green Wedge Zone unless they operate 'in conjunction' with uses and activities which amongst other things includes agriculture and winery. There are further restrictions to these particular uses insofar as in a residential hotel the number of bedrooms are limited to a maximum of 80 and in terms of function centre or restaurant the number of patrons are limited to 150.
30 In my view the proposal satisfies the "in conjunction" tests as there is a clear nexus between the operation of this facility on this site and the operation and viability of the winery enterprise.
31 Put another way the proposal would not be appropriate if the winery did not exist in this location and operated in a manner as it currently does including its production, cellar door sales and restaurant. Clearly the viability of the winery is dependent on primarily the number of sales that occurs onsite.
32 The tests set out in the Boucher v Dandenong Ranges Steiner School[9] case effectively supported the notion that there needs to be a functional nexus between the two land uses for the "in conjunction" test to be satisfied. It is not sufficient to be merely collocated. Thus, the operation of the conference facility and the residential hotel will be inexplicitly tied to the sale and supply of wine produced on the site. Mr Govenlock in his evidence statement outline a Willow Creek Winery Management Plan that would be implemented to assist to achieve this objective.
33 Willow Creek wine will be served to guests as towards the sale being encouraged during wine tours and wine tasting events. The nexus is therefore one of interdependency for the ongoing viability of the winery by promoting its specific wine products not simply generating some independent, economic benefit of say accommodation.
34 However, the mere fact that the proposal satisfies the "in conjunction" test does not mean that the proposal should be approved. As stated in the planning scheme[10] because the use is found within Section 2 doesn't imply a permit should or will be granted.
35 Importantly, in my consideration is the balancing of the competing policy objectives that are found in the planning scheme.
36 For instance the policy objectives at Clause 22.08, in particular policy at Clause 22.08-3, which suggests a lot size for these types of facilities to be a minimum area specified in the zone i.e. 40 hectares compared to the 8 hectares provided in this development needs to be assessed to determine its impact for this particular case.
37 As mentioned earlier there is a myriad of policy and objectives which both support and discourage the use of this land for the purposes of this proposal and in particular for purposes other than primary rural enterprises.
38 Clearly the tourism support policies found in clauses such as 22.07 anticipate that these types of facilities are needed if the attraction of the Mornington Peninsula region as a place to experience wine related activities is to foster. The Green Wedge Zone itself acknowledges this by placing such uses in Section 2 conditionally and importantly conditionally of being in conjunction with.
39 While the policy objectives[11] suggest lots should be a minimum of 40 hectares, in this case it is important to note that no productive land is being lost as a consequence of this proposal nor is any significant vegetation being removed. Also important is that the proposed buildings are being collocated with existing buildings on the site and in fact enhance the heritage building as part of its proposal. Finally, in this regard the buildings are also located well away from the main road and are well separated and screened from adjoining properties.
40 Thus, the policy of maintaining rural land for agricultural purposes such as vineyards is not undermined by this proposal.
41 Mr Kerney and Mr Govanlock both indicated to the Tribunal that the nature of the wine industry was not that one winery produced all of its own grapes on site but that winery's bought grapes as required from other growers or itself grew grapes on other sites. What is important in my view in this instance of a smaller lot size than recommended is that the size of the winery and the wine related activities able to be experienced on the site is quite broad. That is, one is able to experience the vineyard, the wine making process, cellar door sales experience, the restaurant and finally accommodation type facilities.
42 In my view the nature of the wine industry in terms of its agricultural contribution is important in this region as the success of wineries will ultimately have flow-on effects on the productivity of other land and vineyards in the region.
43 Another key factor is that issues such as infrastructure in the form of roads, access and car parking are in this instance quite secondary in the proposal given that the existing use and development on the land includes car parking, access and the like.
44 Thus, I find a high degree of policy support for this activity on the site. My view may have been quite different if this site did not already have an established winery, cellar door sales, restaurant and carpark area. Thus, policies which support this proposal include the policies such as:
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Support in sustainable development on agricultural land in the form of the vineyard.
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Support the establishment of facilities which emphasise and promote an understanding of rural pursuit e.g. winery.
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Recognise tourist facilities of state significance of the Peninsula wine industry.
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Area to be developed is less than 10% of the site area.
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Development cannot be identified as an apparent urban encroachment as it is does not consist of detached dwellings or cabins or the like.
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No unacceptable impacts on the capacity to use adjacent land for agricultural purposes as the interfaces are generally with the agricultural activity on the land e.g. vineyards.
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Scenic impact is limited as the buildings are located centrally on the site and next to existing buildings.
45 While at the hearing the heritage discussion of the retention and enhancement of the existing homestead was not debated at any great length the works proposed in my view must be seen as a positive outcome to the original homestead through its enhancement and integration into this proposal. I note that while on the one hand one ground of refusal was based on the heritage ground the key vista of this heritage dwelling is the one viewed when driving up the access road towards the buildings on the site. This vista is only going to be minimally affected by this proposal. The scale of the buildings and their connection to the existing dwelling through a glazed and transparent connection and a built form of a similar overall height and scale is in my view quite acceptable.
46 Mr Raworth in his written evidence stated:
The proposal will require very modest changes to the existing farmhouse. It is to be connected to the new building by way of a glazed link. This will be located adjacent to the rear of the existing house. it has been designed as a lightweight transparent structure which will make limited contact with the early building and require minimal intervention into its fabric. The rear elevation has already been subject to some alteration and is of substantially less interest and significance than the front façade. Works of this low level of impact to the rear of a dwelling are invariably considered acceptable except in instances where the building is of the highest order of significance. On this matter, Council has already noted that these works are 'consistent with the (Heritage) Study's general management objectives.
47 I am satisfied that in terms of the heritage issues this proposal represents an acceptable outcome and enhances the existing heritage place on the site.
48 The policy set out at Clause 22.07-3 also raises the issue of suitable buffers and whether the site has sufficient area around it to provide for such buffers. In the first instance this part of the site is already the centre of activity involving the existing use of the winery, cellar door sales, restaurant and car parking. The proposal while substantially in its own right would only introduce a building of a two storey scale will be screened from the north by the existing building, from the south and west by the substantial vineyard separation and to the east by the existing vegetation on adjoining land. Substantial distances also exists to nearby dwellings with the minimum separation distance being in excess of 140m however, most of the dwellings are approximately 300m away.
49 Thus, from a policy sense I can see little reason why the proposal should not be permitted.
50 The proposed buildings are effectively two levels ranging in height from above ground level of between 7m and 9m. The higher portion of the building is located towards the southern side of the building which comprises the basement barrel room. This southern side of the building is located some 74m from the southern boundary of the site.
51 The building while contemporary in style with its flat roof and use of materials will not in my view look out of place in this location. There are many contemporary style buildings constructed in this part of the Peninsula and it is appropriate that buildings display the design characteristics of today's times.
52 As mentioned previously the glass connection between the existing heritage building and the contemporary building is a contemporary satisfactory solution to this link.
53 Some concern was expressed that the location of the buildings would result in the buildings forming a dominant element above the ridge line. My viewing of the area from a number of locations did not sustain this concern. In particular from the west vegetation to the east formed a significant backdrop to the buildings likely to be erected in this location.
54 As referred to above my visual inspection of the area was taken from a number of adjoining properties. In most instances the area upon which development would take place is only visible from certain limited viewing points. While in some locations night lights emanating from this facility will be visible, I do not think that they will be of such a visual impact to adversely affect the amenity of residents within the distant dwellings.
55 Mr Barton in his submission indicated the emission of noise from the facility including the conference centre would be managed by ensuring appropriate acoustic design detail during the construction phase of the building. The recommendations of Mr Burton an acoustic engineer will be incorporated in the detailed design. I accept in most instances noise would not be an issue in the operation of this facility. Conditions restricting loud or amplified music are not resisted by the permit applicant. In any event, the restaurant and conference facilities are located centrally on the site away from sensitive adjoining neighbours.
56 Traffic and parking were also raised as concerns by objectors. However, in my view the number of spaces provided onsite is sufficient based on the fact that the total number of people onsite attending the restaurant, conference facility and residential hotel cannot exceed 150 patrons.
57 The provision of 109 car spaces in total should be more than adequate to meet the peak demands of this facility. While the parking areas are distinguished in terms of the area set aside for conference guests/residential hotel guests and that associated with the restaurant and wine tasting and cellar door sales, I am confident that if necessary overflow parking can go from one area to the other as necessary.
58 In terms of the traffic, the existing access arrangements, where dedicated right hand turns and left hand turns are provided along Balnarring Road, results in my view an adequate level of service existing to meet the needs of this proposal. Mr Carr in his traffic evidence concluded:
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the anticipated development peak parking demand is satisfied by the provision of 49 additional spaces;
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the anticipated peak hourly traffic volumes equate to around one vehicle movement per minute;
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the anticipated traffic volumes are low in traffic engineering terms and are expected to have no significant affect on traffic conditions.
59 I accept these conclusions and found Mr Carr's evidence to be effectively unchallenged.
60 A number of other key matters were raised in respect of this proposal's impact n the amenity of the area. This included the question of whether this proposal had undertaken a site capability assessment in respect of the treatment of waste effluent.
61 Mr Barton submitted that the satisfaction of both the responsible authority, through its chief environmental health officer, and the EPA, in respect of wastewater treatment would be a prerequisite to the commencement of any development on this site. Mr Barton submitted that preliminary responses from both Council and the EPA, was that it was generally felt that the issue of treatment of wastewater could be adequately dealt with on-site. It seems to me that while this is an important issue it is not an issue that I would refuse the application as a sole ground.
62 If suitable means of treating wastewater cannot be found then simply this proposal will not proceed. I do however, express a concern that this site should not be connected to the town reticulated system located some 2km away. Bringing such a service to the site would involve a large and expensive enterprise with the potential to significantly affect roadside vegetation which is not encouraged within the planning scheme. Thus, in my view all effluent treatment should be contained and treated within this site.
63 Before concluding however Mr Barton asked me to consider modifying the application so that it facilitated the use of the Salix restaurant for hotel guests between 5.30pm and 10.00pm Sunday to Thursdays (when the restaurant would otherwise be closed pursuant to Permits 99/059 and 96/6197). While there was a strong opposition to the modification of the application to allow this my view is that it is better to treat this application on its merits. The opportunity to provide guests or patrons of the residential hotel access to the Salix restaurant in the evenings when other facilities are not available, I believe is quite sensible and appropriate. It seems to me guests are already onsite and any likely noise from the restaurant activity would be very minimal. In fact if guests had to leave the site to find food elsewhere it is likely that cars, traffic, headlights and the like activity is likely to be a worse outcome. As such I propose to accede to the request to amend the application to facilitate the use of the Salix restaurant only for those persons residing within the residential hotel for the hours of between 5.30pm and 10.00pm Sunday to Thursday.
64 I don't believe any person is disadvantaged by this amendment to the application as the issues affecting the issue were well ventilated at the hearing and the approval given is limited to patrons who are staying at the residential hotel on site.
65 This application demonstrates the tensions that exist in many rural areas close to the metropolitan region of Melbourne. The convenience of location, the natural scenic beauty and the value of this area and its grown recognition as a wine and tourist region seems often at odds with its rural character and feel. However, the two can often happily co-exist and the fact that issues of traffic and parking have been adequately addressed in this proposal and the fact the scale of the building is in my view modest and importantly the enhanced nexus of this proposal with the wine industry in the area leads me to the conclusion that the proposal should be approved subject to a range of conditions discussed at the hearing.
J G Knowles Associates Pty ltd
Mornington Peninsula SC [2006] VCAT 2204