Victorian Civil and Administrative Tribunal|2000-12-31|Before: Mr P, Ms J

Kelghan Pty Ltd v Mornington Peninsula SC [2000] VCAT 2538 (31 December 2000)

Application under Section 77 Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; Business 4 Zone; Restricted Retail Premises; Kmart Auto Repairs; Noise; Visual Presentation

Respondent Mornington Peninsula Shire Council and J. Alesci and Ors.

The Responsible Authority's decision is affirmed. No permit is granted in relation to Permit Application P000166.

Mr C. Townshend, Barrister, instructed by Deacons, Lawyers, appeared for the Responsible Authority.

Mr P. Connor, Barrister, instructed by Joseph Alesci, Solicitor, appeared for Alesci Developments Pty Ltd. He called Mr Alesci to give evidence.

Mr F. Bjerkhamn, appeared for the MEA Group. He called Dr Mark Fleming to give evidence concerning the development of pedestrian bicycle trails in the locality.

Mrs E. Bjerkhamn, an objector, appeared in person, and also spoke on behalf of Ms J. Hildebrandt.

Mr Peter W. Harris, Chairman of the 4M Network, appeared in person.

Mr J. Gobbo, QC and Mr D. O'Brien, Barrister, instructed by J.A. Fillmore and Co. Solicitors, appeared for the permit applicant. He called:

Mr Andrew Rodda, Town Planner of Contour Consultants Pty Ltd;

Mr Stephen Hunt, Traffic Engineer of Grogan Richards Pty Ltd;

Mr Robert Burton, Acoustic Consultant of Burton Acoustic Group; and

Since the hearing, the Tribunal has twice inspected the subject site and surrounds to better understand the issues raised in the hearing.

1. This application for review is one brought by the permit applicant in response to the decision by the Mornington Peninsula Shire Council to refuse to grant a permit to construct buildings and works and use them for motor repairs and restricted retail premises, with associated removal of vegetation and car parking provision at 2 Philip Street, Mornington.

2. The Council's permit application number is P00166.

3. The subject land is located on the south-eastern corner of the intersection of Gordon and Philip Streets at the eastern periphery of the Mornington Shopping Centre. The site is of irregular but generally square shape having a total area of 3,180sq m. It has a frontage to the southern side of Philip Street of 56.75m and a sideage to the eastern side of Gordon Street of 48.58m. The land has a fall of about 3m from the Gordon Street frontage to the south-eastern corner. The site is currently undeveloped. There is a single Cypress located centrally on the land.

4. To the west, across Gordon Street is the rear façade of the recently constructed Mornington Central shopping complex. Vehicle access to undercroft parking serving this centre is from Gordon Street, which serves a ring road function for the commercial centre as a whole. To the north of the site, on the north-eastern corner of the Philip and Gordon Street intersection is a small public open space reserve (the Berry Reserve). To the south of the site there are a number of commercial premises fronting the eastern side of Gordon Street. These are generally of a low intensity or semi-industrial nature, and include car repairs. The properties facing the eastern side of Philip Street represent the eastern extremity of the shopping centre. Land to the immediate east of the site is again used for public open space, and some recent tree planting has taken place. A proposed pedestrian/bicycle ("Heritage") trail passes along the western edge of that open space area. Land generally to the north-east and east of the abutting public open space reserves and land to the south-east of the subject land is in residential use.

5. Mr Townshend's submission for the Responsible Authority included that the land on the eastern side of Gordon Street from the subject site in the north to Barkly Street in the south, all of which is zoned Business 4, is somewhat in a state of transition given that the shopping centre on the western side of Gordon Street has only been recently completed, much of the land is undeveloped, and to the immediate east of this area new medium density housing is under construction or has recently been completed.

6. At the outset of the review hearing, Mr Gobbo made successful application to substitute new plans for the Tribunal's consideration in place of those which had been earlier considered by the Responsible Authority. Those plans had been earlier circulated to the other parties. They essentially raised the floor level of the proposed building to allow adequate grades in the forecourt to Gordon Street and increased the building height by 0.5m; relocated the entry to the peripheral sales building; reconfigured the parking area; and set the proposed acoustic fence along the eastern portion of the Philip Street frontage inside the site boundary by 1.4m whereas it had earlier been set on the boundary.

7. The following description of the revised proposal is drawn from Mr Rodda's written statement of evidence presented at the hearing. The additions in square brackets are my own:

"It involves the construction and use of two attached buildings with associated car parking and landscaping.

The first building [which would face Philip Street] is proposed to be used for a Kmart Vehicle Service Centre ("Kmart building"). The front portion of the building would be used for a customer service counter and waiting area, display, office and amenities area. The balance of the building would contain three service bays, accessed from the ... [northern] ...side of the building, a mezzanine storage area and two enclosed refuse bays. The building would have an overall floor area of 302sq m and have the following minimum setbacks:

* from the rear boundary [(Council reserve)] - 8m.

The Kmart building is shown to have an overall height of between 6.6m (west elevation) and 7m (north elevation) above natural ground level.

The second building ("peripheral sales building") would occupy the southern portion of the site and be built along the southern boundary. It would be set back a minimum of 18m to Philip Street and 3m to the ... [eastern] ... property boundary (adjoining the Council reserve). It would have a floor area of 1010sq m and be oriented towards Gordon Street. The building has a height ranging between 6m and 8m above natural ground. The variation in height is clearly depicted on the south elevation drawing, which shows the ceiling height reducing as the building extends down the slope towards the rear boundary.

The peripheral sales building features a light weight decorative rendered fascia. The use of columns and extensive glass panelling is a feature of this building. Three designated advertising panels have been incorporated into the fascia.

Vehicle crossovers are proposed from both Gordon and Philip Streets. The Gordon Street crossover has a proposed width of 7m and is located towards the southern boundary. The second crossover is located off Philip Street approximately mid-way along the length of this boundary.

Car parking is mainly provided along Philip Street and Gordon Street boundaries set behind a 1.5m landscaped setback. A total of 41 on-site car parking spaces are provided on-site.

A 3m high, timber acoustic fence is proposed along a portion of the rear [eastern] and Philip Street boundaries.

A separate loading bay is provided for the peripheral sales building at the northern [north-eastern] corner of the building.

The plans also depict the proposed closure of Philip Street. It is proposed to landscape a section of the existing road from the proposed Philip Street crossover for a distance of approximately 20m to the east."

8. Mr Alan Wyatt was called on behalf of the permit applicant to describe a landscape proposal for the site and surrounds. Mr Wyatt's plan indicates the planting of a copse of Eucalypts at the north-eastern corner of the site extending into the adjacent parkland. Planting in the 3m setback of the building to the eastern boundary is also proposed with additional small Eucalypts beyond the site boundary at the edge of the parkland. Mr Wyatt similarly proposes planting in the Berry Reserve to the north of Philip Street: a copse of clean trunk Eucalypts is proposed with some Pyramid Trees at the southern edge of the parkland. The closed road reserve would also be planted with Eucalypts, which theme would be reinforced by boundary planting on the site itself. Three Brush Box Trees are proposed at the western end of Philip Street to continue the Philip Street pattern of planting further to the east. Mr Wyatt's plan also indicates that a 3m high acoustic fence would extend along the Philip Street frontage east of the accessway to the site and along the eastern boundary of the site for a distance of approximately 25m of which more than half would be set back a distance of 3m from the boundary. The plan indicates that there would be a retaining wall on part of the northern boundary of the site. A low fence of 900mm high to protect perimeter planting is proposed around the other parts of the street frontage. The application also involves the removal of the single Cypress located centrally to the site.

9. As part of his evidence Mr Rodda recommended that the articulation of the Kmart building be enhanced to improve its appearance to Gordon Street by adopting a similar decorative parapet and colour scheme to the peripheral sales building and incorporating more dominant window features.

10. Mr Burton's written evidence presented to the hearing indicated proposed trading hours for the development as follows:

"Restricted retail premises - 8.00 a.m. to 5.30 p.m. (Saturdays)

Kmart Auto - 8.00 a.m. to 5.30 p.m. (Monday to Friday)

Loading Dock - 8.00 a.m. to 5.30 p.m. (Monday to Friday)

11. Mr Burton also made certain recommendations about regulation of activities on the site which were not otherwise resisted by the permit applicant. They include:

* The use of unsilenced rattle guns should not be permitted as part of the auto repair facility.

* The compressor associated with that use should be housed within the storeroom.

* The hours of the loading dock be limited to those described above.

12. The subject land is contained within the Business 4 Zone of the Mornington Peninsula Planning Scheme. The Business 4 zoning extends to the south of the land generally along the eastern side of Gordon Street. The commercial areas across Gordon Street are zoned Business 1 and the surrounding residential areas are included in a Residential 1 Zone with the exception of the Berry Reserve on the northern side of Philip Street which is included in a Public Park and Recreation Zone.

13. The purposes of the Business 4 Zone are set out at Clause 34.04 as follows:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services."

14. Pursuant to Clause 34.04-4 a permit is required to construct a building or carry out works in the zone. The clause also sets out application requirements which include landscape details, and a plan of the location and height of surrounding buildings.

15. A restricted retail premises (other than equestrian supplies, lighting shop and party supplies) is a Section 1 use in the zone subject to meeting the following conditions:

"* Must be in one occupation with a leasable floor area of at least the amount specified in the Schedule to this zone. If no amount is specified, the leasable floor area must be at least 1,000sq m.

* The combined leasable floor area for all restricted retail premises must not exceed any amount specified in the Schedule to the zone."

As there are no floor areas specified in the Schedule to this zone and the proposed floor area is 1010sq m and it follows therefore that the use of the building for restricted retail premises is as of right.

16. So far as the proposed Kmart auto repairs use is concerned, "motor repairs", which are defined as "land used to repair or service motor vehicles, and includes the fitting of accessories", is nested within the use group "industry" which is Section 1 in a Business 4 Zone, again subject to meeting the certain specified conditions. As the site is not at least 30m from a residential zone, and the use is not specifically included in Section 3 of the zone, the motor repairs use (or industry) is a Section 2 or discretionary use.

17. It is noted that motor repairs includes "panel beating". The permit applicant has indicated, however, a willingness to accept a condition preventing panel beating being conducted on the subject site.

18. The land is also affected by a Vegetation Protection Overlay - Township Vegetation. The relevant provisions are found at Clause 42.02 of the Scheme. The Schedule to the overlay imposes the need for planning permission for the removal, destruction or lopping of any vegetation with a number of exceptions which include:

"The removal of any vegetation carried out in conjunction with a development approved under a planning permit and in accordance with an endorsed plan."

19. Thus the approval of the removal of the existing Cypress on the land can be seen as part of the overall development application made under Clause 34.04 of the Scheme. While it is not critical in this application, I would observe in passing that the structuring of the Schedule and the "exemption" applying to vegetation to be removed as part of another development, means that the matters listed for consideration in the Vegetation Overlay are also set aside. This effectively means that vegetation removal takes second place to development approvals as no serious testing of the removal against the overlay criteria applies. This may not always be a desirable outcome.

20. The land is also subject to a Design and Development Overlay - Township Design and the provisions of Clause 43.02 and Schedule 1 to that Clause apply. The purposes of the overlay include:

"To identify areas which are affected by specific requirements relating to the design and built form of new development."

21. Those design objectives are set out in Schedule 1 to the overlay and include:

"To ensure that new development has proper regard to the established streetscape and development pattern in terms of building height, scale and siting."

22. The overlay imposes the need for planning permission for the construction of buildings or the carrying out of works unless exempted by the overlay, and certain mandatory application and building form requirements apply.

23. Clause 2 of the Schedule includes that all buildings and works must meet a number of requirements. They include that no building may exceed a wall height of 5.5m or a building height of 6m. Another requirement is that the difference between finished ground level and natural ground level as a result of excavation and filling must not exceed 1m (except for the purpose of constructing an in-ground swimming pool) and all works must be properly battered or stabilised. The foregoing provisions of the Schedule may be varied with permission, but an absolute height limit of 10m applies

24. The provisions of Clause 52.06 relating to car parking also apply to the application. The parking requirement for a shop (which includes restricted retail premises) is 8 spaces to each 100sq m of leasable floor area. For motor repairs, 10 percent of the site area is required to be set aside for car spaces and access lanes but not driveways.

25. Mr Hunt's written evidence indicated that those provisions equate to a parking requirement of 81 spaces for the restricted retail component of the development and approximately 3 spaces for the auto service centre.

26. The Scheme however allows permission to be granted to reduce the number of spaces required or to waive the requirement.

27. Clause 65 of the Planning Scheme generally guides the exercise of the discretion in this review and directs attention inter alia to the purposes of the relevant zone or overlay; the orderly planning of the area; the effect of the proposal on the amenity of the neighbourhood; any particular decision guidelines included in the relevant control; and relevant components of the State and Local Planning Policy Frameworks.

28. The purposes of the controls and overlays have earlier been quoted. Particular decision guidelines are included in the Business 4 Zone in relation to proposals to use land at Clause 34.04-2. They include the effect that existing uses may have on the proposed use; and the effect of traffic to be generated on roads. Clause 34.04-4 includes decision guidelines relating to proposed buildings and works in the Business 4 Zone. Those matters include the provision of car parking; the movement of pedestrians and cyclists and vehicles; the streetscape including protecting active frontages to pedestrian areas and the treatment of fronts and backs of buildings and their appurtenances and the landscaping of the land adjoining a road; the interface with non-industrial areas.

29. Particular matters listed for consideration under the Design and Development Overlay at Clause 43.02-5 include:

"* Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

* Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

* The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off-street car parking."

30. Schedule 1 to the Design and Development Overlay contains particular guidelines relevant to the township area. They include:

"* Whether the proposed siting, height and design of buildings and works will be in keeping with the character and appearance of the area.

* Whether any loss of amenity will result from a variation to the requirements to this Schedule.

* Any relevant development plan, heritage study, code or policy relating to the protection and development of land in the area.

* The effect of any proposed subdivision or development on the environmental and landscape values of the site and of the local area, including ... on the amenity and accessibility of areas of public open space."

31. The car parking requirements of the Scheme also have guidelines for the exercise of discretion in relation to the reduction or waiving of car parking numbers. They include:

"* The availability of car parking in the locality.

* Any reduction in car parking demand due to the sharing of car spaces by multiple uses ...

* An empirical assessment of car parking demand."

32. It is also relevant to this application that Clause 34.04-2 of the zone controls include that:

"A use must not detrimentally affect the amenity of the neighbourhood, including through the:

* transport of materials, goods or commodities to or from the land.

* emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil."

33. The parties also referred to various components of the State and Local Planning Policy Frameworks of the Scheme. They include:

* The State policies relating to planning for urban settlement and metropolitan development at Clause 14 which inter alia seek to assist the achievement of a metropolis which has a business environment conducive to sustainable long-term economic growth and enhanced environment quality and liveability for the metropolitan population. Implementation measures include that major suburban retail, commercial and other development should be concentrated in and around activity centres with good access to integrated transport modes. It also includes that planning decisions should assist the creation of linked park land and open space systems. Consistency of decision making with any relevant requirements of State Environment Protection Policies including those relating to the control of noise from commerce, industry and trade is also sought.

* Policies relating to open space are found at Clause 15.10. Those policies relate to the creation of a diverse and integrated network of public open spaces. General implementation measures include:

"Planning and responsible authorities should ensure that land should be set aside and developed in residential areas for local recreational use and to create pedestrian and bicycle links to commercial and community facilities.

Planning and responsible authorities should ensure that land use and development adjoining regional open space networks, national parks and conservation reserves complements the open space in terms of visual and noise impacts, treatment of waste water to reduce turbidity or pollution and preservation of vegetation."

* The State policy relating to economic development is found at Clause 17 which inter alia seeks to encourage the concentration of commercial activities at activity centres. General implementation measures include:

"Minimise the effects of commercial development on the amenity of residential and parkland areas, for example as a result of traffic congestion, noise or overshadowing."

* Policies relating to industry are found at Clause 17.03. They seek to ensure the availability of land for industry and facilitate the sustainable development and operation of industry and research and development activity. General implementation measures include that responsible authorities should ensure that industrial activities requiring substantial threshold distances are located in the core of suitably zoned industrial areas and encourage activities with minimal threshold requirements to locate towards the perimeter of the zone.

* Clause 19.03 of the State Planning Policy Framework relates to design and built form. It seeks to achieve high quality urban design and architecture which inter alia promotes the attractiveness of towns and cities. Implementation measures include:

"Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.

Responsible authorities should require that all permit applications for non-residential development and multi-unit development not covered by the Good Design Guide for Medium Density Housing Revision No. 2, Department of Infrastructure, April 1998 include a site analysis and descriptive statement explaining how the proposed development responds to the site and its context.

For development proposals for non-residential development ... responsible authorities must have regard to the following design principles:

* Development must take into account the natural, cultural and strategic context of its location.

* A comprehensive site analysis should be the starting point of the design process and form the basis for consideration of height, scale and massing of new development.

* The public realm, which includes main pedestrian spaces, streets, squares, parks and walkways, should be protected and enhanced. ...

* New development should aspire to the highest standards in architecture and urban design.

* Any rooftop plant, lift overruns, service entries, communication devices and other technical arrangement should be treated as part of the overall design.

* Recognition should be given to the setting in which buildings are designed and the integrating role of landscape architecture."

* The Municipal Strategic Statement includes a section at Clause 21.02 relating to economic development. It recognises that most jobs in the Shire are generated by town based activities such as retailing, construction, business services etc.

Clause 21.03, again part of the Municipal Strategic Statement, refers to strengthening of commercial activity centres. It is said to be important to strengthen existing centres including functionally - "through traffic management and parking provision and the integration of pedestrian ways and linkages, including the promotion of continuous retail streetscapes".

* Clause 21.07-1 relates to housing and integrated local area planning. The clause indicates that the Responsible Authority is committed to servicing and developing communities and promoting equity of access to a broad range of services and programs, and achieving environmental sustainability. In the context of the townships of the peninsula this will involve:

"* Improving accessibility between residential areas and activity centres/community facilities, including the provision of pedestrian and bicycle paths.

* Appropriate provision for traffic management and the creation of safe and efficient road hierarchies."

Clause 21.07-3 relates to commercial activity centres again referring to the concentration of commercial development in such areas. Some of the strategies designed to achieve an objective of improving community access to a wider range of commercial and retail services include:

"* Ensure that new development is integrated with and supports existing centres and does not fragment the distribution of commercial activity or lead to a decline in the level of service and amenity provided by existing centres.

* Provide for the development of appropriate additional commercial floor space in support of the existing commercial pattern, with provision for new floor space planned on the basis of each catchments capacity to support economically viable activity."

A related implementation measure is to apply the Business 4 Zone to provide for non-retail commercial areas, in combination with manufacturing and industrial use.

* A particular policy relating to commercial subdivision and siting is included at Clause 22.02. It applies inter alia to land within the Business 4 Zone. The objectives set out for this issue include:

"* To achieve orderly design and development in commercial areas by maintaining consistent standards for buildings in relation to siting, height and landscaping.

* To protect the amenity of residential areas by providing for landscaped buffer areas using native vegetation of local provenance where appropriate."

Particular policies relating to amenity and design standards include:

"* The design of new commercial development positively contributes to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties."

That clause also contains recommended standards for landscaping, building height and setback. It recommends that inter alia within the Business 4 Zone at least 15 percent of the site area be set aside for landscaped open space or pedestrian areas and an additional landscaped area with a minimum dimension of at least 3m should be provided abutting a residential zone (not being a road). In relation to building setbacks it is said that buildings should be set back from the property frontage in accordance with the existing building line having regard to the provision of frontage car parking, landscaping and pedestrian areas. It is said that car parking should generally be located at the frontage of an isolated site. A minimum setback of 15m for buildings is generally required for lots in the Business 4 Zone, with a 5m setback to the boundary of residential zones and 15m or twice the building height to the frontage of the land adjoining Gordon Street.

34. Upon receipt of the application for permit, the Responsible Authority required it to be advertised and in response 26 objections were received. The officer's report to the Responsible Authority summarised the grounds of objection as follows:

"* Insufficient on-site car parking for customers and staff, and reliance on other properties;

* Excessive height of building, particularly rear elevation;

* Adverse impact on amenity of adjoining and opposite reserves;

* Relocation of the Philip Street road closure from Gordon Street;

* Loss of amenity through noise, eg. trucks beeping while loading, fumes, parts and accessories being fitted, fumes, vehicles being tested in neighbouring streets etc;

* Increased traffic in the locality and pedestrians crossing the Ring Road;

* Inappropriate interface with a residential area;

* Increased traffic flow including Barkly Street;

35. The application was also referred to the Council's Traffic and Transport Engineers who, according to the officer's report to the Responsible Authority on the application, were satisfied with the car parking rate proposed, but recommended increased dimensions for the disabled parking bay proposed, and a traffic island buffer strip to separate and protect parking spaces close to the loading bay. The engineers also believed that the volume of vehicles generated by the proposal should not impact undesirably on the function of the ring road, however, they believed that right turn in and right turn out of the development site at Gordon Street should be prevented and a traffic splitter island placed in Gordon Street to reinforce this. They also sought a pedestrian refuge within the traffic splitter island with connecting pram crossings. A concrete footpath connecting from the existing footpath in Philip Street to the pedestrian refuge island in Gordon Street along the frontage of the site was also seen as appropriate. The traffic engineers also sought a condition on any permit granted requiring the permit holder to co-ordinate vehicular access to the site with any future development of neighbouring properties immediately to the south to minimise the number of accesses onto the ring road (Gordon Street). Other standard construction and maintenance conditions were requested.

36. It seems the application was also referred informally to a number of other agencies including the Environment Protection Authority. As a result of this referral the Planning Officer recommended a number of conditions be imposed on any permit granted, referring to relevant Environment Protection Authority Guidelines and State Environment Protection Policies. Those suggested conditions were:

"1. The standard of operation for maintenance (not including noise) should be consistent with EPA Information Bulletin "Waste Control at Motor Vehicle Repair and Service Premises - Best Practice Environmental Management".

2. All washing of vehicles must be conducted in a bunded or graded pavement areas with washings from this area directed to an interceptor pit or separator, which discharges to the sewer (with approval from the relevant water authority).

3. Noise emitted from the premises must not exceed the requirements set out in the State Environment Protection Policy (Control of Noise from Commerce Industry and Trade) No. N-2.

4. Actions must be taken to prevent the discharge of dust and sediment during the construction and post construction activities at the premises.

5. Construction and post construction activities must be conducted according to the following EPA guidelines and policies:

* Environmental Guidelines for Major Construction Sites (EPA publication No. 480 December 1995)

* Construction Techniques for Sediment Pollution Control (EPA publication No. 275 May 1991)."

37. The Responsible Authority subsequently determined to refuse to grant a permit on the following grounds:

"1. The proposal will result in unreasonable car parking, traffic, streetscape and amenity impacts on the locality.

2. The motor repair/service proposal will be detrimental to the Philip Street streetscape and the amenity of nearby residents, adjoining and opposite reserves and is an inappropriate transition to nearby residential areas.

3. Insufficient car parking spaces are available during the peak times resulting in increased pedestrian and vehicle movements across the ring road, creating parking demand in retail areas and residential streets nearby.

4. The proposal is contrary to the orderly planning of the area and the reasonable expectations of nearby residents."

38. The applicant for permit then sought a review of that decision. The grounds lodged for the review were as follows:

"1. The proposal provides adequate car parking, properly manages the flow of traffic and will provide an appropriate streetscape to both road frontages.

2. The proposal will not cause a loss of amenity to nearby residents and adjoining and opposite reserves and is an appropriate use and development in the Business 4 Zone of the Mornington Peninsula Planning Scheme.

3. The proposal will be in accordance with the orderly planning of the Business 4 Zone of the Mornington Peninsula Planning Scheme."

39. A number of persons who objected to the application, including the owners/occupiers of properties to the immediate south-east of the land and persons with interests in the development of the pedestrian/bicycle network in the locality attended the hearing of the review in order to further their objections.

40. At the review hearing there were a number of approaches suggested to describing the key planning issues in this application for review.

41. Mr Townshend submitted that the appropriateness of the proposal turns upon the site's transitional role between the retail core to the west and the residential area abutting and generally to the north and east of the site. Another issue identified was whether the development of the site complements adjacent and opposite public open space areas in terms of noise and visual impact.

42. Mr Gobbo described the principal issues arising from the objections and reasons for refusal as:

"* The strategic appropriateness of the proposal.

* The visual impact of the proposed development upon the streetscape and adjoining properties - interface issues.

* The impact of noise upon the adjoining properties including parkland.

* Landscaping issues concerning the proposed development.

43. With the exception of the last issue identified by Mr Gobbo, all of the matters arise from the location of the site at the interface between the Business 4 Zone and the surrounding residential area/parkland. With respect to transitional sites or sites located at the interface of zones, the Tribunal has said on numerous of occasions that there needs to be an expectation that in each zone, the use and development of land will be constrained or influenced by the adjacency of land in the other zoning. It has been said, for example, that dwelling owners/occupants if they occupy premises at the interface with a commercial or industrial zone, cannot expect to enjoy the same level of residential amenity as persons occupying residential properties more remote from the interface. Similarly, the Tribunal has said that persons operating businesses at the edge of a commercial zone must expect to have constraints imposed on their activities or development in recognition of the need to maintain the amenity of an abutting residential zone (or open space area), which constraints would not apply in other more central parts of the commercial zone. See for example the decision in Application 1999/069581 Martin Stuart Pty Ltd v City of Port Phillip and Dermott and Brenda Conolly and Ors. (unreported). This approach currently finds its genesis in the State policy at Clause 17 and the local policies at Clause 22.02 earlier quoted.

44. The essential question here then is does this commercial proposal for its part adequately respond to the appropriate "balance" to be struck at this interface location in terms of its visual, acoustic and other relationships to the surrounding uses to the north and east.

45. I have formed the view that it does not and would unreasonably impact on the amenity of those abutting areas. My principal concern in this regard is the impact of the activities and development associated with the Kmart auto facility, but the overall scale of both proposed buildings is also of concern.

46. Contrary to Mr Gobbo's submission, I do not believe that the application "politely `turns its back' on the nearby residential precinct" which includes the abutting parkland. The Kmart auto facility is in fact designed so that it faces directly onto Philip Street and would look across the road to the Berry Reserve to the north. I agree with Mr Townshend's submissions that the motor repairs use and development would not provide an attractive interface either in visual or acoustic terms to Philip Street and the public open space opposite.

47. In particular, in relation to the acoustic impacts of the Kmart component of the proposal for the reserve opposite, while it was Mr Burton's conclusion that provided the precautions he recommended as earlier described are applied, noise attenuation by the acoustic barrier and distance would reduce the noise levels generated during normal operation to below the State Environment Protection Policy N-1 noise limits, he nevertheless conceded under cross-examination that only intermittent hammering had been allowed for in his calculations, (as the policy allows adjustments to the acceptable level for intermittency and duration); and at the residential property to the north of the site, hammering would be audible outside the dwelling (albeit it would not be heard inside) as well as in the reserve. Mr Burton also indicated that another activity of potential acoustic concern is the use of unsilenced rattle guns. His calculations assumed that silenced rattle guns would be used. It was also assumed that they would be operated for 20 seconds when removing a single wheel and thus it would take less than one and a half minutes for removal of all four wheels from a vehicle. Mr Burton's calculation further assumed that one car has its tyres removed in each half hour period. Compliance with the N-1 noise limits therefore is achieved only if these duration assumptions are applied. I am of the view, however, that reliance cannot be placed upon these assumptions about the duration or frequency of use of the tools and there will be times where the noise received to the north and north-east of the site would be more continuous and observably higher. I am of the view that such an intrusion of the proposed Kmart upon the abutting parkland and nearby residential land is inappropriate.

48. In terms of acoustic impacts I also accept the submissions made by Mr Connor that the Kmart Auto would be associated with test driving and revving of cars, and albeit the parkland to the north already experiences a high level of noise from cars using the ring road, this would compound the lack of amenity for that parkland area. I further agree with Mr Connor's submissions that an appropriate land use would be one which is less intrusive than the high rotation, high volume vehicle repairer that is proposed for this site.

49. Furthermore, such acoustic levels as have been calculated by Mr Burton rely in part upon the provision of a 3m high acoustic fence around the north-eastern corner of the property in order to contain the Kmart Auto Centre noise.

I am of the view that such an acoustic fence around the north-eastern corner of the site represents an inappropriate form of development opposite parkland and residential properties. Not only is the proposed fence itself 3m in height, but its height above natural ground level would be greater due to a retaining wall being required along the eastern half of the northern boundary to accommodate the fall in the land from west to east.

50. My greatest concerns about visual impacts relate to the presentation of the development to the parkland to the east. The proposed peripheral sales building would have an overall wall height of 8m and a floor level at RL 15.45m. The level of the boundary to the parkland ranges between 13.55m to 13.79m. Thus the floor level of the peripheral sales building would be in excess of 1.5m above the natural ground level at the eastern boundary. I do not believe that a 3m boundary setback for the wall which would appear from the parkland to be in excess of 9.5m in height would adequately alleviate the appearance of visual bulk extending along in excess of 25m of park boundary, even allowing for the proposed landscaping. Furthermore, the Kmart Auto building extends the length of wall presented to the boundary by an additional 10m and the acoustic fence would extend in a northerly direction a further 14.5m to the site's frontage with Philip Street. The acoustic fence again would be in excess of 4m in height in this location and in part would be constructed to the boundary. The length and height of this development overall would be unacceptably visually imposing upon the parkland.

51. It is my assessment that while presentation of a sideage or rearage by commercial development on the subject site to the parkland to the east is not inappropriate, there needs to be a greater concession made to the view from the parkland by greater articulation of the wall and a reduction in its length. This could be achieved by avoiding the need for the acoustic fence: Mr Burton indicated that without the auto centre, if controls were merely placed on the operations of the loading dock , a peripheral sales use alone would not require a high acoustic fence.

52. Also in relation to the visual impact of the peripheral sales building on the parkland to the east, lest it be said that an as of right peripheral sales building of greater than 1,000sq m in area would necessarily imply that a long wall would be presented to the east, it is to be noted that the planning scheme does not preclude application being made for smaller peripheral sales outlets (the use would merely require a planning permit). In any case greater articulation and setbacks are required for any large building to improve its park abuttal.

53. It is because of the unsatisfactory acoustic consequences of the development and its inappropriate visual relationship to the parkland and the residential areas to the north and east that I believe the application must fail. It is recorded here that I do not believe that the proposal, had it proceeded, would have unreasonably interfered with the future bikeway along the eastern periphery of the site, in as much as there was an opportunity to provide access through the proposed landscape buffer area on the subject land, as Mr Wyatt indicated in response to questioning by Mrs Bjerkhamn.

54. So far as car parking is concerned, I was persuaded by Mr Hunt's evidence, drawn from empirical studies elsewhere, that the level of parking proposed would be adequate to cater for the facility, including for those driven by staff. I was also persuaded by his evidence that "back to back" right turn lanes could be satisfactorily provided in Gordon Street allowing right turn access into the subject land, as well as right turn access into the Mornington Central commercial development opposite (as already exists).

55. As can be seen from the above discussion, the unsatisfactory nature of the proposal arises in large measure from the inclusion of the Kmart Auto facility directly facing Philip Street. It is acknowledged that such a facility is not an inappropriate one to be provided on the periphery of a core retailing area - it would conveniently offer a service for shoppers. However any such auto facility would need to be located so that its acoustic and visual impacts were integral to the commercial environment, rather than spilling over into or directly interfacing with adjoining parkland and residential areas.

Environment Act 1987

Kelghan Pty Ltd v Mornington Peninsula SC [2000] VCAT 2538

At a glance

Court

Decision date

Before

Source

Judgment (166 paragraphs)

Kelghan Pty Ltd v Mornington Peninsula SC [2000] VCAT 2538 (31 December 2000)

Parties

Legislation Cited (1)