Victorian Civil and Administrative Tribunal|2012-01-09

The application is allowed. Pursuant to section 87A of the Planning and Environment Act 1987, Planning Permit No. 0133/09, issued by the responsible authority in respect of the subject land, is amended as follows.
What the permit allows is amended to read as follows:

Construction of a residential aged care facility and creation of an access on to a Road Zone Category 1 subject to the following conditions.

Prior to the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the following plans prepared for Knowles Group, Drawing No's: TP01, TP02B, TP03B, TP04, TP05, TP06, TP07, TP08, TP09, TP10 dated October 2010 but modified to show:

(a) The landscape plan modified as required by Condition 8.

(b) Provision of two showers and one change room to the satisfaction of the responsible authority.

(c) The loading bay dimensioned.

(d) Dimensions of the 'at grade' car spaces within the front setback.

(e) Any changes as required by Condition 3.

(f) A reduction in the height of the northern wall of the central wing and an increase in the setback of bedrooms 77 & 90 generally in accordance with Drawing No TP11 RevA. All elevations must be updated to include this information.

(g) Modifications to the application plans, generally in accordance with TP03 RevC, TP04 RevB and TP05 RevB.

(h) Provision of an acoustic fence, of a minimum weight of 12kg/sqm and of a height of 1.8 metres, between the courtyards to units 1-6 inclusive and the adjacent loading area.

(i) Details of the treatment of balustrades (or other suitable alternative) to provide acoustic protection to units 31-39 and 70-82 provided in accordance with the recommendations of a qualified acoustic engineer, to the satisfaction of the responsible authority. The treatment can be in the form of a suitable acoustic barrier at the normal height of a balustrade (e.g. 1 metre).

(j) Notation that the acoustic fence provided along the boundary between the subject site and the property at 1995 Malvern Road is to be of a minimum weight of 12kg/sqm and of a height of 1.8 metres, and extend at that height from the rear boundary of 1995 Malvern Road to a point 4 metres in front of (that is closer to Malvern Road than) the front wall of the dwelling at 1995 Malvern Road. Thereafter the acoustic fence can step down in height to the street frontage.

(b) Condition 3 is amended to read:

Prior to the commencement of the development hereby approved, a stormwater detention system (or suitable alternative) to restrict the post development runoff to no greater than pre-development runoff, must be designed, submitted and approved to the satisfaction of the Responsible Authority. That stormwater detention system (or suitable alternative) must be constructed and operational prior to the occupation of the development hereby approved, to the satisfaction of the responsible authority.

The food and drink premises (café) must only be made available to the staff members, residents and visitors to the aged care facility at all times to the satisfaction of the responsible authority.

(i) confirmation that the hours of delivery of waste is between 7.00am and 5.00pm Monday to Friday and between 7.00am and 1.00pm Saturday.

A landscape plan must be submitted to the Responsible Authority that is generally in accordance with the landscape plan prepared by Carol Frank-Mas & Associates on 5 July 2011 and marked 'Dwg. No. 2595/1A', but amended to show:

(a) The inclusion of at least two 3.75m x 2.5m planters in the north-facing courtyard and any consequential landscaping changes.

(b) A planting schedule of all proposed tree, shrubs, climbers, tussock grasses and ground covers, including botanical names, common names, pot sizes, sizes at maturity, quantities of each plant.

(c) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.

(d) Details of surface finishes of pathways and driveways.

(e) Details of proposed watering system for landscaping from water tanks on site.

(f) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.

(g) The acoustic barrier that separates the courtyard in front of units 1-6 from the loading bay area.

(h) The sight triangles (with a length of 2.5 metres and a width of 2 metres) at the property boundary to be kept clear of obstructions to visibility.

(i) Any changes required to give effect to Condition 3, to the satisfaction of the responsible authority.

When endorsed, this landscape plan will form part of the permit.

A legal point of stormwater discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified engineer in compliance with Council's report prior to a Building permit being issued and to the satisfaction of the responsible authority. The drainage must be constructed in accordance with the Engineer's design.

Unless with the prior written consent of the responsible authority, waste collection must be restricted to the hours between 7.00am and 5.00pm Monday to Friday and 7.00am to 1.00pm on Saturdays, to the satisfaction of the responsible authority.

Unless with the prior written consent of the responsible authority, the loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, during the hours of 7.00am to 5.00pm Monday to Friday and 7.00am to 1.00pm on Saturdays, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land.

Once all plant equipment is installed and commissioned, an independent acoustic assessment of plant equipment must be undertaken to the satisfaction of the responsible authority in order to ensure that noise emissions from that plant complies with the State Environmental Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 (SEPP N-1). A report on the findings of the assessment must be submitted to the responsible authority. Any works recommended to be undertaken in that report, must then be installed to the satisfaction of the responsible authority.

(j) Conditions 19 onwards are renumbered to commence from Condition No 22.

The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.

Mr Philip Bisset, Solicitor of Minter Ellison Lawyers. He called written and oral evidence from Mr Marco Negri of Contour Consultants (town planner), Ms Elizabeth Hui of Marshall Day Acoustics (acoustic engineer) and Mr Tim McKinley of Cardno (traffic engineer). A witness statement was also lodged from Ms Carol Frank-Mas of Carol Frank-Mas Landscape Architects (Landscape Architect), however the parties and the Tribunal advised that they did not wish to cross examine that expert.

Mr Gareth Gale, Planning Appeals Co-ordinator of Stonnington City Council

Mr Oliver Blumberg appeared representing himself and Mrs Victoria Black, Ms Jane Tierney and Ms Esther Blumberg.

Mr Sarkis Tepeli appeared representing himself and Ms Sarah Alvares.

Development of the land with an aged care facility in a three storey building with a basement car park

s87A to amend a permit issued at the direction of the Tribunal

Construction of a residential building in accordance with Clause 32.01-4 (R1Z).

Creation of an access to a Road Zone Category 1 under Clause 52.27.

The site is bounded on three sides by roads - to the west[1] by Malvern Road and to the south and east by Cairnes Crescent. To the north it shares a boundary for most of its length with a SCOPE assisted living facility facing Cairnes Crescent and for a shorter distance with a double storey dwelling facing Malvern Road. The review site has an area of 4943m2, has a considerable downward slope from the south western to the north eastern corner of 4.95 metres and is now cleared of institutional buildings that were previously owned and occupied by SCOPE. Some mature vegetation and low fencing remains along the street frontages. Vehicle access to the previous institutional use was via a crossover to Malvern Road. The area around the review site is residential. A dwelling located opposite the review site on the south-east corner of Cairnes Crescent and Malvern Road includes a paved backyard with three line marked car spaces[2].

Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128

In October 2009 the Tribunal directed that a permit be issued for a proposed retirement village on the review site[3]. The owner of the land has now sought to make amendments to the planning permit to give effect to the following:

Amend the proposed use from a retirement village to an aged care facility; 2. Undertake consequential design changes associated with the change of use, including the deletion of the previously approved top level of the building;

Amend Condition 1 to remove the previous requirement to amend the plans;

Amend Condition 4 which relates to the nature of the proposed land use; and, 2. Amend Condition 17 to provide that the drainage design must be undertaken to the satisfaction of the responsible authority.
The proposed amendments to the permit and plans were supported by Stonnington City Council, other than the change to Condition 17, and the Council suggested some other minor changes to permit conditions. Changes to other Conditions, and the application of additional Conditions, were discussed during the course of the hearing.
The proposed amendments were opposed by resident objectors. Those parties raised concerns about the amendment to the proposed use of the land, and the implications this had on previous arguments of a need for a retirement village which, in their view, allowed a larger built form than would otherwise have been allowed. The residents also raised concerns about reductions in setbacks, increases in wall and roof heights, the location and nature of a plant area on top of the southern elevation, and the amount of car parking being provided.
The Tribunal must determine whether to agree to amend the permit in the way sought by the Applicant, or in another way which may be appropriate.
We have determined to amend the permit to allow the changes sought by the permit applicant, as generally modified by Council, and further modified by discussion during the course of the hearing. The reasons for this decision follow.

The applicant seeks to change the use from a retirement village to an aged care facility. The amendment reflects a fundamental change in the way that the building is proposed to be used. Previously the building was intended to operate as a retirement village for over 55's seeking a low maintenance lifestyle. The building is now intended to house people who require a nursing home level of care.
The change of use was opposed by resident objectors, but only on the basis that the move away from a retirement village use should provide for a reconsideration of the built form proposed for the site. They submitted that the previous built form was only substantiated on the basis that it was to support a use that was in need in this area, an argument that was supported by evidence at the previous Tribunal hearing. In the resident's view, the absence now of such a need argument meant that there was not the same justification for maintaining the previously approved extent of built form on the site. Mr Blumberg in his submission urged the Tribunal to reconsider the built form.
The use of the land as a residential aged care facility does not require planning permission under the Residential 1 Zone. That means technically the change of use of the land is not a matter that we can consider. Rather, it is the design of the building for that use and hence the changes sought to the design that are before us for consideration.
We note a residential aged care facility is encouraged by Clauses 16.02-3 and 16.02-4 of the Stonnington Planning Scheme. Further, a succession of Tribunal decisions have found that aged care facilities require a larger floorplate and thus a built form that is different to other residential land uses[4], a concept now found in policy at Clause 16.02-4, which includes the following strategies:

Recognise that residential aged care facilities contribute to housing diversity and choice, and are an appropriate use in a residential area.

Recognise that residential aged care facilities are different to dwellings in their purpose and function, and will have a different built form (including height, scale and mass).

Therefore, there is a sufficient policy basis to support the proposed aged care facility having a more robust built form than the surrounding housing stock.

The applicant seeks to amend the plans to reflect the changes in floor layouts required to facilitate the aged care facility. As part of these changes, it is sought to reduce the number of car parking spaces in the basement to an amount that was submitted to be appropriate, and to delete the top level of the building, which was no longer required to service the proposed use.
The changes to the plans were not opposed by Council, save for the fact that they have sought minor changes by way of an amended Condition 1, to deal with matters of detail, and to give effect to some of the changes recommended by the expert witnesses. We deal with this Condition in the following section below.

The residents opposed three areas of change, and the reasons for our decision here focussed on these given the general agreement of the Council. The first of those is the reduction in the size of the basement car park and thus in the number of car parking spaces provided on site. The residents raised concerns with the survey data that was relied upon in the application, which in their view was limited and did not differentiate between parking rates for high and low care facilities.
Mr McKinley gave evidence that the appropriate rate of car parking for this facility was 0.3 car parking spaces per bed, which would require a supply of 28 car parking spaces. This evidence is based upon parking surveys of a range of high and low care facilities that included both staff and visitor parking. We are satisfied with this analysis and Mr McKinley's recommendation of 0.3 spaces per bed.
The applicant proposes to provide 60 car parking spaces on site, which is over double the suggested rate. If 28 spaces were provided on site then the residents' concerns about the ratio of high and low care beds and staff turnover issues would be of greater significance. However, in our view where more than double the recommended number of spaces are being provided on site, these concerns simply fall away. The proposed level of car parking on site will be more than sufficient, and able to provide for the various scenarios of levels of care and staff changeovers on site.

The second change opposed by residents are the reductions in setbacks and increases in building heights proposed along the eastern interface. Given the slope of the land and the physical context of the site, the sensitivity of this interface has been a key issue in previous decisions on the review site[5].
Much time was spent during the hearing ensuring that we, and all parties, had a full understanding of where the building was proposed to be constructed closer to the boundaries of the site, and higher than the previous built form. The applicant tabled some plans that identified by color such changes in height and width. Those plans have been retained on the Tribunal's file.
In particular the residents were concerned about the proposed changes along what was termed the east elevation, although it actually faced north-east. Along this elevation there is to be a higher roof form to the ground floor and an increase in the width of the first floor visible above that roof. The residents described the effect of the slope of the land making the eastern elevation the most prominent in the streetscape and therefore the most sensitive from a neighbourhood character perspective.
We have inspected the site and reviewed these changes from the opposite side of Cairnes Crescent and find them to be appropriate as they will have little or negligible impact on the neighbourhood character. The increased roof height at ground floor level is minimal and will affect a small part of the overall built form of the east elevation. Indeed, it has the effect of obscuring views to more of the first floor than was originally proposed. Also the increase in width to the first floor will occur at a distance of over 16 metres from the street boundary, and is also partially hidden behind a pitched roof to the floor below. The extent of additional wall and roof is minimal, and in our view will have limited impact on views from Cairnes Crescent and the properties on the opposite side of this street. We form this view noting, as was evident in our site inspection, that the views from properties in Cairnes Crescent is dominated by varying degrees by vegetation, both within their private gardens and public realm (e.g. the street trees).
Mr Blumberg also raised concerns about the changes to other elevations, including the reduction in setbacks to Malvern Road.
We have considered all of the proposed changes to the built form, and have formed the view that they constitute minor changes to setbacks which will not generate inappropriate impacts in terms of the architectural composition of the building, neighbourhood character or off-site amenity impacts. We will impose Conditions which ensure that the increased setbacks suggested by Mr Negri to the central part of the northern elevation are achieved.
In terms of the changes to the setbacks to Malvern Road, we find the reductions in setbacks to the ground and first floors are appropriate given the main road status of Malvern Road, the site's location on the corner of Cairnes Crescent and the large frontage of the site. The overall built form outcomes to this interface will be appropriate in streetscape and neighbourhood character terms.

The third change opposed by residents is the addition of a roof top plant area centrally along the southern part of the proposed development. Statements of grounds lodged by parties raised concerns about the extent of equipment that will be housed in this area, and the potential resultant visual and acoustic impacts.
Mr Negri pointed out the roof plant is in the same location on the retirement village plans, it just has a different configuration in the amended plans. The plans submitted with this application show that the plant area will be positioned behind a pitched roof of a higher elevation, and thus all plant and equipment of an appropriate size would be hidden from view from the public realm, as well as the surrounding residential properties. Ms Hui gave evidence in relation to the acoustic issues. It was her opinion that, subject to the application of an appropriate condition, the noise emanating from the plant area will comply with the relevant standard. We find this is satisfactory and a condition is included on the amended permit.

In addition to opposing these changes, Mr Blumberg submitted that the Tribunal should require more comprehensive changes to the built form to achieve a more appropriate outcome both internally and externally. We cannot do this as we are limited in our considerations in respect of the current application, which is under Section 87A of the Planning and Environment Act. This issue was explored in the decision of Bestway Group Pty Ltd v Monash City Council (Red Dot) [2008] VCAT 860 where at paragraph 19 the Tribunal said:

The planning system needs to be able to cope efficiently with such changes or other subsequent changes to the use or development of a site for whatever reason. It is important that changes are handled in a way that addresses their substantive merits; ensures that when eligible third persons may be genuinely affected, they are notified and given an opportunity to be heard; and that applications are processed and decisions are made about changes efficiently and in a timely way. The reforms to the Planning and Environment Act 1987 by the introduction of Division 1A and section 87A enables these objectives to be achieved by focussing on the proposed changes, rather than re-opening debate about the whole proposal. Importantly, what happens on a site, can be managed through a single permit document, which is a more transparent process and less likely to result in inconsistencies than having multiple permits for the same site accumulate over time.

Hence, the scope of the application that is before us does not enable us to re-open the debate about the entire built form.
Mr Blumberg also made submissions that various aspects of the proposed internal layout of the aged care facility were poor and would lead to low levels of internal amenity for future residents. In particular Mr Blumberg criticised the size and layouts of the courtyards that many of the rooms will face, and how these spaces will function as part of an aged care facility.
The courtyards are appropriately dimensioned for this type of land use and provide appropriate opportunities for the entry of daylight and sunlight to the rooms, and the creation of passive recreation opportunities for the residents. Hence we find the internal layout is appropriate and suitable for this type of land use.

One concern we raised during the course of the hearing was the impact of the lower ground level loading area and rubbish collection facilities on both the adjoining property at 1995 Malvern Road, and the significant number of units of the aged care facility that would have an outlook to this area from the lower ground, ground and first floors.
Having questioned both Mr Negri and Ms Hui about this matter, we are satisfied that appropriate visual and acoustic outcomes can be achieved. These appropriate outcomes will in part be achieved by the application of appropriate conditions which were discussed at length during the hearing and which are included in the order.
We are therefore satisfied in relation to the amendments to the plans of the proposed development.

The applicant proposes relatively minor changes to four conditions in response to the proposed change of use and changes to the plans.
The first change is to amend Condition 1, which presently requires amendments to be made to the plans before they are endorsed by the responsible authority. As the changes that are described relate to the previous plans for the retirement village, it is reasonable and appropriate that the content of Condition No 1 be amended.
The Applicant in the material lodged with their application sought that the condition simply provides for the endorsement of the plans that have formed a part of the s87A application. The Stonnington City Council recommended to us a range of relatively minor amendments that should be required to those plans through an amended Condition No 1. The applicant during the course of the hearing submitted that a range of amendments were appropriate by way of Condition 1, in part to respond to matters raised by Council, and in part to matters raised by the applicant's own witnesses. This list of amendments grew during the hearing. The resident objectors have submitted that a broader range of changes are required, in line with the submissions summarised above. For the reasons set out above, we can only consider those changes that relate to the amendment application, and cannot reopen debate or consideration of the entire proposal.
We have decided to adopt a range of conditions which reflect submissions put to us by all parties. The various components of the modified Condition No 1 will include the items requested by Council, those suggested by the expert witnesses and some additional conditions sought to limit the acoustic impact of the loading and rubbish collection facilities, as discussed above.
Condition No 4 requires that people only over the age of 55 be allowed to reside in the previously proposed retirement village on site. Clearly given the change of use, the condition is no longer required in its present form.
The Council submitted that Condition No 4 should be used to restrict the proposed ground floor café to operate only for the benefit of residents, visitors and staff. Resident objectors made no submissions in relation to this condition. Given that a separate permit is not sought for a café, it is reasonable to place such a restriction on the permit. This will ensure that additional people do not visit the site for the use of the café only, which will have the effect of limiting the intensity of the use of the site and the extent of car parking required. In short, this condition as drafted by Council will reduce the day to day impact on the surrounding neighbourhood. We will adopt the Council's suggested Condition No 4.
Condition No 17 requires a drainage design for the development, and the applicant sought that the condition end in the words, "... to the satisfaction of the responsible authority." The Council raised concern in relation to this matter as, in their view, the construction of the drainage had to be to the satisfaction of the relevant building surveyor, not Council. Towards the end of the hearing a suggested wording was discussed which all parties were comfortable with, which provided for the legal point of discharge and the drainage design to be to Council's satisfaction. We will adopt this wording.
In addition to the changes sought by the Applicant, the Council has also submitted that Condition No 3 should be amended, as it presently requires the provision of a stormwater detention system on site at the same time as plans are endorsed. Such timing would be inappropriate, if not impossible, to achieve. The applicant submitted wording during the course of the hearing that the stormwater detention system be designed prior to the commencement of works, and completed prior to the occupation of the development. Neither Council nor the residents opposed this wording. We consider it to represent an appropriate timing of events, and so will adopt that wording.
Finally, the Council has rightly pointed out that changes should be undertaken to make Condition 8 relate to the current proposed landscape plan. We agree with this.
We will also require the addition of conditions dealing with the issues addressed above, namely to do with rubbish collection and noise attenuation measures.

The proposed amendments to the plans and conditions, for the most part, reflect an appropriate transition of the use of an approved built form from a retirement village to an aged care facility. Conditions were discussed at length during the hearing and where appropriate we have given effect to those discussions. We have also applied Conditions that will deal with the potential acoustic impacts of the loading and rubbish facilities on and off site.

[1] Malvern Road does not run in a north south direction and the boundaries do not align with the four main compass points. However, for convenience we have adopted the north, south, east and west descriptions used by Council and residents.

[2] This is the land description provided in the decision of Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128.

[3] Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128

[4] A number of these decisions are summarised in Graphos (Aust) Pty Ltd v Nillumbik SC [2008] VCAT 2321

[5] Previous decisions include Crown Cross Pty Ltd v Stonnington CC [2004] VCAT 2516, Crown Cross Pty Ltd v Stonnington CC [2005] VCAT 787, Blumberg v Stonnington CC [2006] VCAT 1113, Crowncross Pty Ltd v Stonnington CC [2008] VCAT 2275, Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128.

Environment Act 1987

J & G Knowles & Associates Pty Ltd v Stonnington CC [2012] VCAT 22 (9 January 2012)

J & G Knowles & Associates Pty Ltd v Stonnington CC [2012] VCAT 22

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

J & G Knowles & Associates Pty Ltd v Stonnington CC [2012] VCAT 22 (9 January 2012)