1. The decision of the Responsible Authority is affirmed. The Tribunal directs that no permit be granted

instructed by, Goldhirch and Shnider, on both days.

Mr Martin Butyn, Acoustic Consultant, of Marshall Day.

Mr Peter Soding of Tixxis Pty Ltd, Town Planner, on both days.

Mr Christopher and Mrs Ann Falkingham on both days;

1. Demolition of building and construction of carwash comprising one automatic/mechanical carwash with four manual/hand wash bays and 2 vacuum bays together with a staff car parking space and a plant room.
2. The access to the site to be from the Nepean Highway service road.
3. There are to be underground tanks to provide recycled water and acoustic fencing on three sides, including Latrobe Street, and perimeter landscaping. The hours of operation are 7am to 10pm 7 days a week.

1. Application under Section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within a prescribed time. Zones and Overlays: Residential 1 with a Special Building Overlay on the part of the northern section of the land.

1. Clause 32.01-1 as a permit requirement for the use of land for a carwash provided the site adjoins or has access to a road zone. A permit is required to construct a building or construct or carry out works for the use under clause 32.01-6. A permit is required to create or alter access to a road in a Road Zone Category 1. A permit is required to vary the requirements of Clause 52.06 in relation to car parking and a permit is required to waive the requirements for a loading bay.

1. Under the State Policy Framework the various clauses are: Clause 15.05 Noise Abatement, Clause 15.11 Heritage, Clause 17.02 Business, Clause 18.09 Water Supply, Sewerage and Drainage, Clause 19.03 Design and Built Forms.
2. Under the Local Policy Framework the various clauses are: Clause 21.05 Residential Land Use, Clause 21.06 Retail and Commercial Use, Clause 21.12 Transport and Movement.
3. Under Particular Provisions the various clauses are: Clause 52.13 Car Wash, Clause 52.29 Land Adjacent to a Road Zone Category 1, and General Provisions Clause 65 Decision Guidelines.

1. While the original application was for a take away food premises and a car wash the applicant amended this to only the car wash. Therefore the application now affects only number 1324 Nepean Highway. The remainder of the land will remain vacant. The site presently is occupied by a special accommodation type building that has access to Latrobe Street. It is comprised of a large lot with the frontage of the Nepean Highway of 58.2 metres and to Latrobe Street of 51.56 metres. It is irregular in shape.
2. Nepean Highway carried approximately 37,000 vehicles per day in this direction. A service road services both residential and commercial properties along its length. To the south of the subject site on the corner of Nepean Highway is a small strip commercial development, to the west of which is a small café type establishment and then residential properties. To the west of the subject site on the north side of Latrobe Street and also to the north on Nepean Highway are residential properties.
3. There are two openings in the outer separator median adjacent to the intersection of Latrobe Street and Nepean Highway. Opposite on the other side of Nepean Highway is more commercial development including a large Bunning's development.

1. At the commencement of the hearing Mr Chiappi made application to substitute plans, being numbers TP1G, TP2A and TP3A by RPC Architects. This substitution was approved.
2. Mr Soding submitted that there needed to be amendments to the application to amend the land description and the application to car wash only so the application now reads: "A car wash with associated parking, fencing and landscaping on part of 1324 Nepean Highway in accordance with plan TP1G, together with the dispensation of a loading bay requirement, creation of access to a road zone and parking to the satisfaction of the Responsible Authority".
3. This application to develop land at 1324 Nepean Highway for a car wash was advertised after its receipt and receipt of further information that included a traffic report and an acoustic report. It was also referred to Melbourne Water and Vic Roads. Seventy-five objections were received. The objections included grounds such as the exacerbation of traffic and car parking problems in Latrobe Street and Nepean Highway; inappropriate uses in a residential zone; pollution by noise, smells and light; contrary to residential character; undesirables loitering in the area; visual blight of acoustic fence and general amenity issues. Because the council failed to grant a permit in the prescribed time the applicant appealed to the Tribunal the Responsible Authority later determined that if it could it would have refused the application on 9 grounds. These grounds are:
   1. The proposed land use on this site is contrary to policies contained within the Kingston Planning Scheme would seek to discourage 'out of centre' land uses under Clause 12, 21.06 and Clause 22.01 of the Kingston Planning Scheme.
   2. The proposal would result in the loss of residential land to cater for the future housing needs in the municipality, contrary to Clause 21.05 of the Kingston Planning Scheme.
   3. The proposal is not provided with an adequate number of car spaces to support the proposed use, which will result in unreasonable amenity impacts on the surrounding street networks.
   4. The proposal has not been provided with adequate lighting facilities, which will result in unreasonable amenity impacts on the surrounding street network.
   5. The proposal has not been provided with adequate on site facilities required to be provided for the proposed use, such as showers and change rooms.
   6. The proposed internal car parking and circulation movements are not workable, and will result in safety implications for on site traffic along the wash bays and access ways.
   7. The proposal fails to respect the character of the neighbourhood and would have an adverse impact of amenity of the streetscape.
   8. The proposal would detrimentally affect the amenity of the neighbourhood and in particular neighbouring residential properties.
   9. The proposal would result in loss of high demand accommodation (age care facility), within the municipality.

1. Most of the parties to the hearing provided short written statements. Several oral submissions were also made. The written submissions, the extensive photographs, plans and other documentation tabled are, together with the witness statements, all contained on the tribunal file. A number of previous tribunal decisions, that both granted and refused similar proposals were also tabled and I have given consideration to these in my decision.
2. The Responsible Authority argued that there would be a net loss to the community of group residential accommodation of the present nature on the site if it is removed and the car wash allowed. Mr Soding also argued that the strategic policies for residential zones support high density development in the area and consequently it is against the orderly and proper planning in the area because it will prejudice future residential development of the area.
3. The residents in general submitted that they had lived for many years within the immediate area and already had problems with traffic in Latrobe Street leading to humps being installed and parking controls instigated. They referred to car queuing in Latrobe Street to enter the highway and also cars coming off the main lanes of the highway into the service road having to reduce speed from 80kmh to 50kmh. There is a regular bank up of traffic at that intersection and, it would seem, a conflict with the traffic from the two streets coming together. They were all concerned about noise, not only from the car wash itself but also from the patrons, and quoted their experiences with other car washes within the general area and their discussions with residents living near these. Another concern is that there will not be a permanent management person and therefore no one to control unruly or loud behaviour on the site.
4. On the other hand Mr Chiappi and his witnesses submitted that the car park would meet all the planning scheme requirements in relation to access, practical parking and movement within the site, reduction of noise by virtue of the siting of facilities and acoustic fences and by the implementation of a good landscape plan. I accept that all these things are possible.
5. On the first day Mr Fairlie, the traffic engineer was asked to look at issues such as washing of boats and other trailer mounted equipment and how these would access the washing bays. On the second day he produced diagrams showing the turning movements for such and stated that, unless boats were backed into a washing bay, there was no way they could use this facility. He suggested that a sign be placed at the entry into the site stating that washing of boats is prohibited. He said that this had occurred in several other sites.
6. There were other issues such as the width of the landscape buffer abutting a residential zone that did not comply with the requirements of Clause 52.13 and the fact that, on the north eastern "boundary", not only did the acoustic fence not continue right across it, but also the boundary was shown to dissect the proposed landscaping. Another issue is to ensure that the vacuum bays have solid walls adjacent to the north western driveway of the proposal.
7. In relation to the planning issues, Mr Chiappi and Mr Crowder submitted that there is strategic support for siting of the car wash and that many permits have been issued for car washes on residentially zoned land. They submitted that this is a well suited site because of its highway abuttal, its size and the fact that it is a corner site. It is also close to commercial developments to its south and a cross the highway to its east. There is no doubt that it is so. On the other hand the submissions that this is not an acceptable use in this residential zone because of its impact on the general strategic intent of the zone and the abutting and nearby residences also has merit.
8. I am not going to repeat everything that was put to me. I believe that there are a number of clear issues here that lead me to conclude that a car wash on this site is not the best outcome for the site or the immediate locality. In reaching this conclusion I agree with the decision of Mr Hewitt of Tony Preiato & Associates v Ballarat City Council (2008) VCAT 2193 where in a somewhat similar circumstance to this Mr Hewitt concluded that

In broad terms it was the evidence of the witnesses at while the proposed use has the potential to give rise to upset amenity impacts, these are capable of being managed and contained within acceptable limits.

In accepting the evidence would allow compliance with noise levels and traffic generation could be accommodated with the existing street and network, he still found

Not withstanding that, the proposed use will bring a significant level of disturbance, noise and traffic movements into this primary residential location. The amenity impacts are not in my view insignificant. The environmental benefits claimed by the permit applicant have not been substantiated to my satisfaction and I am unable to conclude that a car wash contributes benefits to the community which is so great as to compensate the adverse amenity impacts on neighbouring residents.

1. He further concluded that there are good reasons for prohibiting car washes in residential zones. These mainly relate to amenity impacts.
2. In Azzure Sapphire Pty Ltd v Kingston CC and others, Senior Member Byard also addressed amenity issues and the ability to vary the requirements of Clause 52.13 if "If the Responsibility Authority considers a better design solutions will result". He asked "Better than what?" He then concluded that "I think it must be a better design solution overall and including, in particular, better from the point of view of residential land and nearby residents". A similar conclusion was reached by Member Rickard in Magic Hand Car Wash Franchisor Pty Ltd v Boroondara CC and others (2005) VCAT 2628.
3. My major concerns here are traffic and amenity considerations. Now I note Mr Fairlie's evidence and that he always assesses traffic issues in a fair and reasonable manner. However, I also accept Mrs Falkingham's submission and the photographs that accompany it. She said that there is often conflict and excessive queuing at the intersection of Latrobe Street, the service road and the main highway lanes. Many cars wishing to access this car wash would become involved in this situation, often in peak times, particularly at weekends. I do not think that it is acceptable to increase traffic problems at this intersection by even what Mr Fairlie considers to be a small amount of traffic over the period of operation.
4. In relation to amenity, one of the matters that concerns me is, while this proposal has an abuttal to a Road Zone category 1, the arterial road part of that zone is effectively separated by the outer median and service road from the residential zone. Now the service road provides more comfortable access for residents and other properties along it. It acts as a residential street. It provides for travel at a much lower speed than the arterial road section and any increase in traffic along it is something to be avoided in order to retain amenity.
5. Also, the Nepean highway carries around 37,000 vehicle per day in either direction. This means that, during peak times in particular, there is a much higher ambient noise level than at non peak times. But, even at non peak times, the level is quite different from a residential street in the hinterland. I ask is it reasonable to inflict more noise on the residents who live on the adjacent Latrobe Street and my answer is clearly no.
6. Another matter that I think is symptomatic of this proposal is the necessity to place a noise attenuation barrier along a street frontage. Although there is a 2 metre wide landscaping strip abutting this fence, it nevertheless is an indicator that this is an inappropriate location for this proposal.
7. I think that any proposal that would in anyway reduce the amenity levels experienced by the abutting and nearby residents is an unacceptable outcome. As there is no doubt a car wash is a noisy operation and could attract noisy customers it is unacceptable.
8. In coming to this conclusion I have given consideration to the planning scheme provisions submission witness statements and other documentation provided to me.