The responsible authority's decision to permit Application No P55/2007 is affirmed and no permit shall issue for group accommodation use.

Mr Trevor Ludeman, Town Planner, Ms Debra Donald was called to give Traffic engineering and car parking evidence

1 In October 2002, a permit was granted[1] to Mr John Blundell to develop four two storey dwellings at 135-137 Fischer Street in Torquay. Mr Blundell subsequently lodged plans for endorsement with the responsible authority. Shortly after that time Mr Blundell sought amendment to the layout of two dwellings which in effect deleted two first floor balconies and replaced these with two additional bedrooms. The responsible authority considered these changes and then endorsed the amendments to the plans.

2 Some time during construction of the four dwellings, new stud walls and doors were installed inside the ground floor entry foyers of each building, which in effect, subdivided the ground level of each building from the first floor and created eight separate apartments. No permission was sought nor granted for the works by the responsible authority.

3 The works may have gone unnoticed, however some time in 2005, Mr Blundell leased out the buildings to tourists and effectively changed the use to group accommodation. In addition the building at 137A Fischer has been separately sold to another person, however Mr Blundell leases this property.

4 Some time after the establishment of the group accommodation neighbours complained to Council about noise, other anti social activities, and car parking problems deriving from guests using the premises. The Council investigated the complaints and formed the view that Mr Blundell was operating the group accommodation use without permission. The Council initiated enforcement action but this has not proceeded to either the Magistrates Court or VCAT because the Council wishes to wait on the outcome of these two applications.

5 John and Peggy Forbes are residents of a two storey dwelling behind 135-137 Fischer Street. They had complained to Council about various activities on the site and made submissions to the Tribunal. They support the responsible authority's decision in both applications and express concern about loss of privacy, rowdy noise, obscene language, partying, nudity, observing young people having sex, external and interior lights being left on all night, and they claimed this was an amenity they did not wished to have now or in the future. They raised concerns about the methods undertaken by the applicant in developing the site and expressed cynicism about on-site management. They also refuted arguments that the premises were marketed to family groups and claimed there were also other types of accommodation.

6 The responsible authority refused both applications for permit on three grounds:

•

The proposal is contrary to strategic planning objectives

•

The proposal will have an adverse amenity on and is inconsistent with neighbourhood character

•

There is inadequate or insufficient parking

•

The issue is really about how such an establishment is managed, while the issue of numbers is not all that relevant.

•

The identification of capacity numbers of each bedroom has exaggerated the issue beyond any realistic comprehension of how the premises has been managed to date.

•

Realistically had the development been sold then the reality may have been far more different to how the premises is being managed at the moment. Each dwelling could have been purchased separately and no doubt may have needed up on the accommodation website.

•

This approach will achieve a more considered and managed approach and indeed has done so, ever since this premises has been managed for group accommodation.

•

The issues of the manager now residing on site will also ensure that all occupants are aware of this issue and that the manager on site can ensure that noise, parties and any other amenity issue will not be caused.

•

The applicants experience in the accommodation area for some 16 years also ensures that this establishment will be managed and controlled in an appropriate manner.

8 The matters which require assessment in this application are:

• Is 135A Fischer Street group accommodation?

• Should 137 Fischer Street be treated the same way as the other three properties?

• Is the group accommodation use contrary to the strategic planning directions for Torquay?

• Does the group accommodation have an adverse impact on the amenity?

• Is the group accommodation consistent with the neighbourhood character?

• Is there sufficient parking for the proposed usage?

9 At the commencement of the hearing Mr Ludeman sought to amend the planning application for 135A Fischer Street and the other application insofar as it omitted 135A from the application. The request stated:

1. 135A is owned by Mr. Graeme Anderson and is separate from the permit applicants (Blundell) ownership of 135B and 137 A & B and cannot be defined as Group Accommodation (land in the one ownership containing a number of dwellings used to accommodate persons away from their normal place of residence).

2. 135A is to be used as a dwelling by the permit applicant, J.E. Blundell and operated as a bed and breakfast accommodation (a dwelling used by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence).

3. The original planning application for Group Accommodation nominated an accommodation capacity of between 56-60 persons within 8 accommodation units, spread over 135A & B and 137 A & B. The application is to be amended to remove the reference to this total number of persons.

4. The application is to be amended to ensure that the group accommodation to be conducted on site can only be managed in such a way that a maximum of two (2) vehicles per unit, with upstairs and downstairs being separate accommodation units. This ensures that the use of Group Accommodation cannot exceed the existing-level of on site car parking (double garage with tandem parking).

5. Given that 135A is to be used as a bed and breakfast it is subject to condition of 32.01-1 (Table of uses) in that a permit is not required where, no more than 6 persons maybe accommodated away from their normal place of residence - at least 1 car parking space must be provided for each two persons able to be accommodated away from their normal place of residence. The parking facilities for 135A provide 2 spaces in tandem, which limits the accommodation capacity to 2 vehicles and 4 persons.

6. Given this amendment, application for review P3157/2006 is not required.

10 At the outset, I sought clarification to this amendment partly because it did not fully explain the amendments and I needed more information about how the premises will operate. Secondly, the amendments included revised plans and a proposed management plan purportedly for 135B and 137A & 137B Fischer Street only.

11 Mr Blundell now wishes to live in one apartment in 137A Fischer Street, let out the apartment above his own accommodation for similar purposes[2] and manage the other 6 apartments as group accommodation. The apartments are marketed as "An Ocean Vista 4 ½ Star Accommodation"[3]. The full details of the applications are contained in the following sections.

12 This application refers to two apartments in one building and on one title. The lower level contains two bedrooms and has provision for accommodation for six persons, that is, a double bed and two bunks. The upper level of the building comprises three bedrooms and has two double beds in separate rooms and three bunks which can provide sleeping accommodation for 7 people, thus there is a sleeping capacity in the beds for 11 persons. In total there is bed accommodation in the building for 17 persons.

13 Mr Ludeman claimed his client will live in one apartment and let out the other as a "Bed and Breakfast". Initially he said Mr Blundell will live in the ground level apartment and let out the upper level apartment. Later in the hearing he changed this so that Mr Blundell will reside in the first floor accommodation and let out the ground floor as a Bed and Breakfast. This may sound confusing but it was done to meet the limitations for Bed and breakfast use in Section 1 of the Residential 1 zone provisions.

Application P55/2007 - 135B, 137A and 137B Fischer Street

14 It is intended to occupy the six apartments in the three properties as group accommodation. The three buildings are on three titles but they are owned by Mr Blundell. The layout of the six apartments is similar to 137A Fischer Street (with differences where some dwellings have an extra bedroom) and in total provide accommodation for up to 47 persons. Mr Ludeman claimed that it was highly unlikely that the maximum number of persons will be accommodated, but rather his client had provided a bedding layout for the site at the request of the Council.

15 The subject site comprises four properties known as 135A, 135B, 137A and 137B Fischer Street in Torquay. This is in the north-eastern section of Torquay known as the Wombah Park residential area. This residential area is elevated and gently undulating with distant views to the ocean and parts of the Torquay coastal shoreline and is developed primarily with single detached dwellings on lots ranging from 600sqm to 800sqm. Land in the vicinity of the site comprises contemporary single and two storey dwellings. There are some examples of dual occupancy development and nearby there is a small group of shops although there is no convenience store or facilities for tourists.

16 Fischer Street is a collector road with a 12 metre wide road pavement. This provides vehicular traffic movements each way and car parking on each side. It links this section of the Wombah Park residential area to the Darian Road/Geelong Highway road network.

17 The Torquay Town Centre is located about 1.9km south of the subject site.

18 The subject site and all surrounding properties are zoned Residential 1 under the Surf Coast Planning Scheme. The site is also located in a Design and Development Overlay - Schedule 1, known as the Torquay/Jan Juc Coastal Township Character. A permit is required in this area for buildings and works under certain circumstances however this is not relevant in these applications.

19 There are various State and Local planning policies of relevance including Clauses 21.04, 21.08 (Tourism Strategy), 21.10 (Torquay Jan Juc Strategy) and Clause 65 (Decision Guidelines).

20 At the commencement of the hearing I allowed the substitution of the documentation identified by Mr Ludeman and I amended the application for 137A Fischer Street pursuant to Section 64 of Schedule 1 of the VCAT Act. I sought clarification about whether any party objected to me determining the legal point on whether a permit was required for the uses at 135A Fisher Street. No party objected.

21 Each party tabled and read from written statements and made oral commentary. I was provided with plans and elevations of the building, layout plans, locality plan, aerial photographs, zoning information, planning policy documents, information about occupancy of each apartment and car parking rates for each, and tourist brochures for Torquay.

22 Following the review hearing I undertook an inspection of the site and individual apartments and the locality in general.

23 The application seeks a permit to use the land for "group accommodation" which is a Section 2 (permit required) use in a Residential 1 Zone. There was no debate regarding this interpretation of the use.

24 Since the review hearing Deputy President Gibson published a decision concerning accommodation[4] and I am satisfied that the group accommodation is the correct description of the use for 135B & 137A and 137B Fischer Street.

25 A permit is required for buildings and works for a Section 2 use in a Residential 1 Zone under Clause 32.01-6. However neither application sought approval for buildings and works, nor was it considered by the responsible authority. I questioned Mr Ludeman about this issue and he advised that it was "implied" and therefore wished buildings and works to be considered. This apparently relates to the placement of new walls and doors at ground level of all four buildings and additional kitchen fittings that have already been installed.

26 There was substantial dispute between the responsible authority and Mr Ludeman about whether a permit is required for accommodation usage of 135A Fischer Street. Mr Ludeman argued that no permit is required for Bed and Breakfast provided it met the conditions next to the Section 1 use Table at Clause 32.01-1.

27 Mr Mackenzie disagreed and questioned whether it was a genuine proposal or whether it was an artificially constructed response based on a perception that such a proposal would not require a permit. He argued there is no supporting material explaining the likely operation of the bed and breakfast use or how that use will interrelate with the adjoining six unit proposal. He also argued that the overall proposal in the applications clearly contemplated all eight units being managed as a combined tourist accommodation facility for short term holiday letting purposes under the control of the permit applicant.

28 I am satisfied that the apartment at first floor level to be occupied by Mr Blundell is a dwelling, and under normal circumstances would not require a planning permit for its use. A dwelling is defined as:

A building used as a self contained residence which must include;

a) A kitchen sink;

b) Food preparation facilities;

c) A bath or shower; and

d) A closet pan and wash basin. It includes outbuildings and works normal to a dwelling.

29 In the Armato decision [5] Deputy President Gibson relied on the Derring Lane [6]case which refers to a residence as a place where people live or reside either permanently or for a considerable period of time. (Tribunal emphasis)

30 I do not consider that the lower level of 135A Fischer Street is properly defined as a "Bed and breakfast" use. The definition of Bed and breakfast is:

A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence (Tribunal emphasis)

31 In this instance the accommodation is self contained and it is physically separated from the first floor dwelling and the layout allows for independent occupation by a group of people or a family away from their normal place of residence for short periods. It may fall into a number of definitions in the accommodation nesting in Clause 75.01 of the Planning Scheme.

32 Mr Ludeman argued the use was not "group accommodation" because this property was in a different ownership to the other 6 apartments. The definition of "group accommodation" is:

Land in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence.

33 I agree it "technically" does not fall within the definition of group accommodation, although for all intents and purposes it really is the same; it is marketed with the other apartments, it has a similar layout, it abuts the other apartments and it is managed by Mr Blundell. From my observation of its and the way Mr Blundell will let it out it is best defined as "accommodation" which is:

34 Deputy President Gibson was confronted with a similar issue to this case in Amato and at paragraph 23 referred to Radford v Hume CC [7] where she said:

I have taken the view that when characterising uses that may fall within two or more definitions it is necessary to have regard to the structure, context and purpose of the planning scheme provisions at the time of interpreting the land use terms. It is also necessary to have regard to the big picture to ensure that the purposes of planning and the objectives that the planning scheme seeks to achieve are not frustrated by unduly restrictive interpretations of land use terms.

35 In Amato Deputy President was dealing with a large dwelling house, this case involves a building which has two occupancies, one which provides accommodation for the manager as his own residence and this other form of accommodation. Deputy President Gibson came to a similar conclusion that the use was "accommodation" and that it required a permit for its use although she went further by referring to the Shared Housing Provisions in Clause 52.23 which provide for some exemptions.

36 I heard no argument from any party about "Shared Housing". I acknowledge the use when viewed in isolation may appear as Shared Housing but having regard to the management, marketing and physical relationship of the accommodation with the 6 other occupancies alongside which are "group accommodation" I consider it is best defined as either accommodation or group accommodation. Group accommodation and accommodation uses require a permit in the Residential 1 Zone.

37 I also considered whether it could be defined as "two dwellings on a lot". Two dwellings on a lot will not require a permit for use however a separate permit is required under Clause 32.01-4 and this clause triggers an assessment of Clause 55(Rescode). However there was no application for such, there has been no application for any building works other than Mr Ludeman's cursory response to me that the buildings and works were "implied".

38 Mr Mackenzie argued that the use was not one that is encouraged in this section of Torquay. He advised that the Local Planning Policy at Clause 21 contemplates that Wombah Park residential area would be essentially a low density detached residential area whilst more intensive tourist accommodation development was designated for the old Torquay section, and more particularly those areas within walking distance of the town centre.

39 Mr Mackenzie referred to the Tourism Strategy and in particular Map 1 to Clause 21.08 where the Council actively encourages this form of accommodation. These areas are located along the Geelong Road Precinct close to Bell Street or abutting The Esplanade in the Gilbert Street area.

40 On the other hand, Mr Ludeman claimed that the proposed usage did meet Local planning policy directions.

41 I consider that the proposed group accommodation comprising six occupancies in the 3 buildings and the additional apartment below Mr Blundell's dwelling is a substantial intensification of land use in the Wombah Park neighbourhood. The density and intensity of the accommodation is substantially higher than the conventional detached housing in the neighbourhood and it clearly is not anticipated in this section of Torquay. There are six de-facto dwellings (or 8 if 137A Fischer Street is counted) in a location which is probably more appropriate for three (or four dwellings). Each occupation has a maximum level of occupation by placement of groups of bunks to establish relatively high occupancy. Whist there can be argument about whether the full occupancy of each bed is achieved it is the combination of the density and intensity which in not anticipated in this section of Torquay which militates against approval.

42 I may have come to a much different view if, for example, each individual building was let out either as a group accommodation arrangement or individually. However, both in terms of intent, method of packaging and marketing, and the manner in which each building has been deliberately subdivided to create multiple occupancies with relatively high concentrations of bedding highlights the differences between conventional detached housing and this form of group accommodation. Accordingly I agree with Mr MacKenzie's submission that such intensity of use is more appropriate in the tourist locations identified on Map 1 in Clause 21.08 of the Planning Scheme.

43 Both Mr Mackenzie and the Forbes' raised concerns about adverse amenity impacts on the neighbourhood. Many of the matters raised are quite common to conventional residential situations, and on the face of it, individual acts of smoking on balconies, nudity, private parties, leaving lights on all night, residential noise and so forth could be said to be part and parcel of residential accommodation although I acknowledge that a higher concentration of people being accommodated tends to focus attention on this issue particularly for neighbours who may find some of the personal habits of the accommodation confronting.

44 Mr Ludeman argued that the premises will not achieve the full occupancies claimed by the Council and actively sought to distance argument about the high numbers of people being accommodated at any one time. He was of the view that the dispute has escalated due to the interpretation by the Council of the maximum numbers based on the bedding plan provided to the Council.

45 Based on my inspection, the bedding layout provided with the application is consistent with what has been provided on site. It must be said that if such accommodation is utilised by families it is likely to involve high numbers of children. On the other hand if there are groups of adults occupying the same beds then I consider that the amenity of the neighbourhood can be affected if this is a regular occurrence. At the time of my inspection those apartments which were occupied contained family groups, that is, parents with children. My inspection was undertaken mid week and out of the peak tourist season.

46 Mr Ludeman claimed that the population of the use will be governed by the parking availability on site and will be controlled through a management plan where a maximum of 2 cars per occupancy will be enforced. He also emphasised that Mr Blundell will be moving into the upstairs level of 137A Fischer Street and will manage the accommodation so that there will be a good level of supervision. Mr Ludeman referred to his client's 16 years in tourist accommodation to attest to his ability to fulfil his commitment to the management.

47 During the hearing I mentioned that if I was to impose conditions on any permit I needed to be confident that the conditions will be adhered to. I say this having regard to Jones and others[8] which found, inter alia:

The Compliance with conditions is fundamental to the efficacy of any planning scheme.

The imposition of and compliance with conditions constitute a fundamental cornerstone in the exercise of any planning discretion concerning use of land, particularly if that proposed use is in any way likely to cause detriment to the amenity of the area.

48 I considered issuing a permit with conditions limiting the number of adults in each apartment together with the car parking limits suggested by Mr Ludeman however I am not convinced there are sufficient benefits derived from this approach to over ride my concerns about these applications. My reservation about accepting Mr Ludeman's suggested conditions or any others that may have helped to address potential amenity issues is that Mr Blundell has not provided me with confidence that he will comply with planning permit conditions unless pressured to do so. I am concerned that to approve these permits will rely on and place substantial pressure on the responsible authority to enforce the permits which may involve substantial staffing resources.

49 Whilst Mr Blundell may have substantial management experience with tourist accommodation he has undermined this with his approach to the use and development of the site. In this regard he initiated building works which changed the use of the land which has doubled the number of occupancies without planning permission and he has made minimal effort to properly legalise the building works. This compares to his approach in obtaining the original permission for four dwellings and endorsement of changes prior to commencement of building.

50 In addition he has changed his position about the accommodation at 135A Fischer Street on a number of occasions and if anything created doubt about the true nature of accommodation. Whilst the episode of changes to the occupancy detail may have been well intentioned it left doubt about his ability to properly manage the application or the uses in the manner claimed. This matter may not be a reason to reject this application in itself, but having regard to other short comings with these applications it certainly has not helped.

51 Mr Ludeman claimed that the group accommodation use will be controlled by placing limits on the maximum number of vehicles that can be placed on each occupation. He claimed the applicant will limit each occupation to two car spaces. This will mean one car space each in a garage, in a side by side arrangement and one tandem car space behind each garage. In evidence Ms Donald advised the car parking provision for each apartment was generally acceptable on the basis that the number of vehicles will be limited. She also suggested some modification to the front landscape area to accommodate manoeuvring space for vehicles.

52 Whilst Ms Donald based her evidence on the proposed car parking limits for the 6 group accommodation units, there was no evidence about the parking needs for the other building at 137A Fischer Street. Mr Ludeman claimed this would be controlled through the provisions applicable for Bed and Breakfast. My concern about this approach is that the use of the lower apartment in 135A is not defined as Bed and Breakfast. Even if it was, based on the bedding there will be a requirement for 3 cars (1 car for each 2 persons) plus 2 cars for the dwelling, giving a total of 5 car spaces when only four, at most, can be provided[9]. Mr Ludeman sought to limit the number of persons in the Bed and breakfast accommodation on the ground level, but this is inconsistent with the bedding layout. It is presumed this will be controlled by the management plan.

53 The method of controlling the maximum number of people in the group accommodation by placing a maximum number of cars is novel and I consider it may work in some circumstances, particularly when conventional families with relatively young children are accommodated. But I am concerned that this arrangement relies on effective management and I am concerned it may easily be abused if there is not constant vigilance of the parking limitation. Having regard to my concerns about the intensity of the use and conflict with local policy I consider car parking could be dealt with much better if the use was less intense.

54 Mr and Mrs Forbes expressed concern about the manner in which the applicant had gone about converting the buildings to group accommodation. Whether the use (and some development) may have illegally started is not necessarily a reason to reject the application. In some respects it provides the Tribunal with an opportunity to examine the operation of the use in the neighbourhood and to test the true impact of the proposals.

55 The Jones [10]decision also considered a use which had already commenced and is probably a timely reminder of the potential pitfalls in continuing the use:

In relation to this aspect of the matter we agree with the decision of another division on the board in Pituri Pty Ltd v City of South Melbourne (1985) 18 APA 241 at 244 as follows:

"From time to time the board must consider appeals where a permit is sought for a use which has already commenced without a permit having been obtained. One such case was Van Egmond v City of Knox (1985) 16 APA 56 at 57-58 where the board made the following general statement of principle: 'The board proposes to consider the application on its merits and not place the applicant at any disadvantage because he has commenced the use illegally. Ironically the fact that the applicant has illegally commenced the use enables a better assessment of the use as possible problems have already been revealed. Be this as it may the board wishes to make it clear that it does not condone the illegal commencement of a use. Any permit issued at the direction of the board can only operate prospectively and does not retrospectively authorise the use from its commencement. Consequently, even if a permit is granted at the direction of the board, the applicant can still be prosecuted for illegally conducting the use prior to the issue of a permit. Moreover, if such a prosecution is successful, the board cannot see how any subsequent decision to direct the issue of a permit can be regarded as a mitigating factor. The fact that the board proposes to deal with this matter on its merits and not penalise the applicant for his illegal commencement makes it more important that any prosecution be considered on is merits (that is upon the culpability of the applicant at the time the offence was committed) rather than on the basis that this was a mere technical omission which has now been corrected. If those who breach the law are not prosecuted, the law will quickly fall into disrepute and the whole system of town planning will be undermined."

56 In this instance the site visit did provide a better understanding of the usage and the intensity. I consider the use is unreasonably intense in this suburban neighbourhood, although if it was less intense, such as that described earlier it may be more appropriate. Similarly the applicant needs to examine his approach to the dwelling /bed &breakfast issue and reduce its intensity, to say one occupation.

57 I would also suggest that the applicant take active steps to rectify building and works issues promptly as the conversion of these buildings to the 8 occupancies without planning permission would seem to reactivate the Councils enforcement proceedings.

58 For the above mentioned reasons the responsible authority's decisions are affirmed. I consider that a permit is required for the accommodation or group accommodation use at 135A Fischer Street having regard to its context, management and relationship with adjoining group accommodation. Both uses are too intense for this conventional residential neighbourhood and they are contrary to local planning policy. Even if I was of a mind to grant a permit I am not confident that planning permit conditions will be complied with.

[1] At the direction of the Tribunal following the issuance of a Notice of Decision to Grant a Permit by the responsible authority - See Application No. P1754/2002

[2] During the hearing this was identified as Bed and Breakfast accommodation.

[3] See www.torquaylink.com.au - Visitors Guide 2007

[4] See Armato v Hepburn Shire [2007]VCAT603

[6] Derring Lane Pty Ltd v Port Phillip City Council[1999]VSC 269

[8] Jones and others v Minister for Planning and Environment and others (1985) 19 APA

[10] Jones and others v Minister for Planning and Environment and others (1985) 19 APA