Victorian Civil and Administrative Tribunal|2004-10-07|Before: Mr P, Ms P

Lanco Commercial Projects Pty Ltd v Whitehorse CC [2004] VCAT 1985 (7 October 2004)

Section 80 of the Planning and Environment Act 1987; Whitehorse Planning Scheme; Residential 1 Zone; Student Accommodation; Height; Building Bulk; Three and Four Storey Building; Council Strategic Planning; Principal Activity Centre; Waste Collection; Section 173 Agreement.

The decision of the Responsible Authority in permit application no. WH/14185 is varied. A permit is to issue subject to the conditions set out in the Notice of Decision dated 31 May 2004, with the following variations:

* Part(a) is deleted and subsequent parts renumbered accordingly.

* Part (k) [the former part(l)] is deleted and replaced with the following:

(k) A revised waste management plan in accordance with Condition 13 with consequential changes to the layout of the development to provide for waste collection from the basement, or if that is not feasible then from Bruce Street.

* Parts (a) and (c) are deleted and part (b) is renumbered as (a).

* The former part (d) is deleted and replaced with the following:

(b) The development shall be for the exclusive use of students enrolled full time at a tertiary institution and is to vacated by any relevant student within three months of that student's completion of full time studies.

(c) All rooms shall be managed by a single management entity and shall not be leased or otherwise managed other than under the control of that management entity.

* The paragraph after the former part (d) is deleted and replaced with the following:

(d) The cost of the preparation or review of the agreement pursuant to Section 173 of the Planning and Environment Act 1987 and the cost of registering the agreement under Section 1818 of the Planning and Environment Act 1987 must be borne by the owner of the land.

3 Condition 4(ii) is amended by the addition of the following words after the words "visit surrounding residents" : "within an area shown on the site management plan".

4 The references to "33 persons" in Condition 4(viii) and Condition 8 are replaced with "47 persons".

5 A new Condition 4(x) is added as follows: "Security of building and grounds".

Mr P Bisset, solicitor of Minter Ellison Lawyers. Evidence was called from:

Ms M Foley of counsel instructed by Deacons Lawyers.

Mrs D C Jackson in person and for Mr A P Beilken and Ms K Jackson.

A written submission from Mr J Louey on behalf of Mrs S J Louey was filed prior to the Hearing.

1 These reasons address an Application made under Section 80 of the Planning and Environment Act 1987 ("the Act") by Lanco Commercial Projects Pty Ltd seeking review of conditions included in a Notice of Decision issued by the Whitehorse City Council ("the Council") in relation to permit application no. WH/14185. A Notice of Decision was issued on 31 May 2004. The Application for Review was lodged on 10 June 2004.

2 The Applicant seeks review of the following conditions in the Notice:

* Condition 1(a) requiring the deletion of the second floor of the building is sought to be deleted.

* Condition 1(l) requiring waste to be collected from Bruce Street is also sought to be deleted.

* Conditions 3(a) & (c) are parts to include in a Section 173 Agreement and are sought to be deleted on the basis that a planning permit would be required for a change of use from student accommodation.

* Condition 3(d) is sought to be clarified and two new parts proposed to be added to the provisions of a Section 173 Agreement.

* Conditions 4(viii) and 8 are sought to be amended to refer to 47 persons rather than 33 persons on the basis that Condition 1(a) is deleted.

* Condition 4(ii) is sought to be clarified to refer to an area specified in a site management plan required by that condition.

* A new part is sought to be added to Condition 4 relating to a site management plan.

3 The Application was amended prior to the Hearing to delete any review of Condition 15 and all parties were so advised.

4 At the commencement of the Hearing, I was advised that the Council and Applicant had reached agreement in relation to some of the contested conditions: the deletion of Conditions 3(a) and (c), the rewording of Condition 3(d), the addition of two parts to Condition 3, the addition of words to Condition 4(ii) and the addition of a new part to Condition 4. I noted that other parties had sought to comment on some of these matters, including Mr Louey in his written submission, and the fact that agreement had been reached did not preclude others from making submissions on those conditions.

5 Another matter raised at the commencement of the proceedings concerned the ambit of the Tribunal's review. A number of residents expressed concern about the Council's decision to allow the proposal, in a modified form, as reflected in some of the statements of grounds. I explained to those present that the only proceeding before the Tribunal is in relation to the contested permit conditions as no Application for Review against the Council's decision to determine to issue a Notice of Decision had been lodged. Consequently, the issues before the Tribunal for determination relate only to those matters referred to in the contested conditions that generally fall into three categories - whether the second level should be required to be deleted, how waste management should be arranged and the terms of a Section 173 Agreement relating to the student accommodation use. Thus, although issues such as fencing heights, the form of retaining walls, the proposed access point for the basement and various other matters were of concern to some parties, these are not matters within the Tribunal's jurisdiction to review in the proceedings before it.

6 The subject site is located on the east side of Bruce Street, around 80 metres north of Whitehorse Road and a short distance east of Station Street. It has an area of around 860 square metres, with a frontage to Bruce Street of 20.17 metres. To its east, the subject land has a narrow frontage to a lane and then Elland Avenue. It rises toward Whitehorse Road (south) and there is also a fall from east to west. The property is occupied by a single storey brick building and car parking that appears most recently to have been used as a medical centre. There is some vegetation on the subject land notably within the front setback to Bruce Street.

7 To the immediate north, at No. 8 Bruce Street, is single storey dwelling with an attic upper level. It is downslope of the review site and several habitable room windows face south at ground and first floor level. This house has a narrow side setback from the common boundary with the subject land. The primary open space is to the north/north-east of the home.

8 A second dwelling abuts the northern boundary of the review site, at No. 10 Elland Avenue. That recent dwelling is two storey and has been subdivided from the lot at No. 8 Bruce Street. It has an unusual and confined access direct from Elland Avenue to a single car garage and a double storey wall is very close to the common boundary with No. 8 Bruce Street. There is a sitting room/bedroom window at the upper level that views south, in addition to a hall and bathroom window. The primary open space is to the north of the dwelling, in the form of an attractively landscaped courtyard.

9 Dwellings to the north of the review site are predominantly single storey and detached as are houses on the west side of Bruce Street. This part of the neighbourhood is low in scale. The land slopes to the south and west.

10 To the south and south-east of the review site is a public car park that is well landscaped. To its south, on the eastern corner with Whitehorse Road is a 7-Eleven store including petrol facilities. To the south-west corner of Whitehorse Road and Bruce Street is a substantial bluestone church.

11 Parking restrictions apply in Bruce Street and Elland Avenue.

12 It is proposed to use and develop the land for the purposes of student accommodation in a part three and part four storey (plus basement) building. A total of 46 students would be accommodated in 46 units addition to an on-site caretaker. The information before me refers to a focus on international students. All rooms would be accessed via stairs. Condition 1(a) would require the deletion 14 rooms.

13 A basement accessed from Elland Avenue would provide for 12 cars, 5 motorcycles and bicycles. Storage is also provided at this level.

14 The design is part three and part four level, with the fourth level being positioned to the south. The maximum height above ground level of the north elevation would be around 9.3 metres while the maximum overall height of the building would be 11.9 metres. A mix of materials is proposed reflecting the three main design components in the façade.

15 The building would be setback from Bruce Street by 8-9 metres at ground level, then varying between 7.4 - 8.5 metres for the remaining three levels. The setback from the northern boundary would be 4.85 metres at ground level and then 3.1 - 4.5 metres at the next two levels including the angled balconies. The setback from the southern boundary would be 3 metres, then ranging between 1.45 - 3 metres for the next three levels. The setback from the rear boundary would be 2 metres, then ranging from 1.4 - 2 metres excluding balconies. The plans show screening to 1.7 metres for balconies and a condition provides for a 2.6 metre minimum height fence along the northern boundary where the building would be above natural ground level.

16 A landscape plan forms part of the application material, including planting within the front setback and along the northern and southern boundaries.

17 The subject site is zoned Residential 1 under the provisions of the Whitehorse Planning Scheme ("the Scheme"). A permit is required for the use and development of the land for the purpose of a residential building, student accommodation. Decision guidelines set out in Clause 32.01 have been taken into account by the Tribunal. The provisions of Clause 55 do not apply to a building of four storeys.

19 A number of other Clauses are relevant to this review, including:

* Clauses 11, 14, 15, 16, 17.01, 18.02, 18.07, 19.03 of the State Planning Policy Framework.

* Clauses 21, 22.04 (Tree Conservation) and 22.05 (Box Hill Business District) of the Local Planning Policy Framework.

20 Melbourne 2030 has also been taken into account by the Tribunal. Box Hill is designated as a principal activity centre.

21 I was referred to Amendment C50 that has recently completed exhibition but has yet to proceed to an independent panel hearing.

22 I have considered the submissions and evidence presented. That has been assisted by my inspection of the subject site, the properties at Nos. 8 Bruce Street and 10 Elland Avenue, and the locality. I do not recite all of the material presented, as the written submissions, statements of grounds and statements of evidence tendered by the parties are retained on file, although I do refer to some of the main points. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme.

23 As noted previously, the contested conditions can be grouped for ease into the following issues requiring the Tribunal's determination:

* whether the deletion of one level of the building is necessary in terms of streetscape and neighbourhood character considerations and in the context of the applicable planning policies.

* whether the proposed provisions of a Section 173 agreement are necessary in relation to the use as student accommodation and management of the proposed development.

24 It is essential to first consider the question of an acceptable building scale in terms of the policies that are part of the Scheme. Those policies carry greatest weight. It is relevant to consider an adopted Council policy pursuant to Section 60 of the Act. There is also Amendment C50 that is at a preliminary stage and carries the least, if any, weight. Ms Foley argued that it is not regarded by the Council as a seriously entertained proposal.

25 The use of the land, for student accommodation, accords with the purpose of the Zone. The purposes of the Residential 1 Zone are (inter alia):

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

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

* To encourage residential development that respects the neighbourhood character.

26 The proposal would provide a different residential form and density than generally exists in the immediate area at present, being apartment style student housing. That is acceptable in terms of the second of the above purposes. There is contention about the density of the proposal, which I return to later, and it is the other two Zone purposes that I consider next.

27 The existing policies in the Scheme that are relevant to this Application are principally those relating to existing residential character, the Box Hill Business Centre and high quality design. Each is important, however, in the context of the review site, there is a tension between maintaining the existing low scale character and building form and the strategic objectives for land use and development relating to the Business Centre. The expectation of some residents was that the 9 metre height referred to in Standard B7 of Clause 55 would be the maximum allowed. However, in terms of the objectives of the Business Centre as I address below, four storeys is not outrageous and a consequence is that the provisions of Clause 55 do not apply even though the subject land is in a Residential 1 Zone.

28 It is not possible to maintain the existing low scale character and achieve other policy objectives relating to the future growth of the municipality that seeks to focus substantial development in areas such as the subject land. The basis for my conclusion that the subject land and area near to it has been earmarked for change is derived a combination of policy statements:

* Clause 21.04 "A Vision for the City of Whitehorse" says Council will:

ensure medium density housing is integrated with existing residential areas in a form consistent with the character of neighbourhoods, with higher density housing being located in specific areas with excellent public transport and shopping access. [Tribunal emphasis added]

* The Strategic Framework Plan at Clause 21.04 shows the review site within the Box Hill Business Centre as confirmed by the map to Clause 22.05. The review site is not within a special investigation or character area. The only heritage control affecting nearby land is HO90 relating to the Church to the south-west of the review site[1].

* Clause 21.05 reiterates some matters already noted. It emphasises high quality design and new development that makes a positive contribution to an area's character. It states that development will be guided into areas "where redevelopment can enhance the area".

* Clause 21.06 foreshadows the preparation of a Housing Study:

to ensure that future housing stock is able to respond positively to the population and social trends that will shape the future housing needs within the City. It will identify areas that are well served by public transport, close to employment centres, shopping, recreation, community and entertainment facilities and can accommodate higher density housing. Areas that cannot sustain further development will also be identified. This is based on the concept of sustainable growth by promoting growth on major public transport routes, grouping compatible land uses to facilitate multi purpose trips and being aware of the impacts intense development can have on sensitive areas. [Tribunal emphasis added]

* The strategies at Clause 21.06 support the concept of sustainable growth.

* Clause 21.10 and Clause 22.05 refer to the Box Hill Business Centre. As noted, the review site is within the Business Centre, as shown on the map to Clause 22.05, and that is common ground between the Council and Applicant. The Box Hill District Centre Structure Plan, 1991 is a reference document. The policy basis to Clause 22.05 states that several precincts in the District have been identified, each playing a different role in support of this major centre. It continues:

For Box Hill to realise its true potential, it is important that future land use and development in these precincts are consistent with these roles. [Tribunal emphasis added]

* An objective of Clause 22.05 is to reinforce the role of each precinct in the District by appropriate land use and development. It is common ground between the Council and Applicant that the review site is in the Whitehorse Road & Station Street precinct with policy including:

* Buildings be of a high quality design and appearance.

* New development protects, complements and enhances existing historic buildings.

* The map to Clause 22.05 is the same as that in the 1991 District Centre Study. The review site is in Precinct 9. The Study refers to "medium density residential development" as being preferred.

29 From my reading, the area of the review site is part of the Business Centre and is sought for medium density development given its proximity to that Centre and the ready availability of a wide range of services and facilities. There is also policy support for higher density housing in this setting.

30 Since the time of the adoption of the new format Scheme, the Council has undertaken and adopted a number of studies and reports culminating in the recently exhibited Amendment C50.

31 The Box Hill Urban Design Framework (March 2002), that I was advised is an adopted Council document, includes the review site in Precinct 6 Housing & Recreation. It is in an area of "proposed high density residential" where general development principles include "medium to high density housing to be encouraged" and "develop building setback guidelines for Bruce St to enable sufficient space for canopy trees to integrate with public realm..." [Tribunal emphasis added].

32 Amendment C50 seeks, inter alia, to formally bring the precincts included in the Box Hill Urban Design Framework (March 2002) into the Scheme and proposes that all applications be assessed in accordance with that Framework. It goes further to refer to areas of "substantial change". Amendment C50 also refers to the 2003 Housing Study foreshadowed by Clause 21.05. The Housing Study was said by Ms Foley to be an adopted Council policy. It includes the review site in Precinct 5; an area of substantial change. Under the heading "possible development potential" it says:

this is an ideal location for up to three or four storey development given the scale of the Hospital and TAFE buildings....

33 The current Scheme directions are more generalised in relation to higher density housing and when one goes to the associated documents there is more specific direction in relation to the Box Hill centre and subject land. I am not persuaded that the subsequent work of the Council, that shows a progression in its thinking about the future of this area, is irrelevant to these proceedings. While a number of parties sought to dissuade me from giving weight to the adopted Council documents this material demonstrates Council's appreciation of the area of the review site as of strategic significance in terms of the Box Hill Business Centre and its potential for a more intensive development outcome than might have been the case in the 1991 District Centre Plan.

34 No reliance needs to be placed on Amendment C50 or Melbourne 2030 to reach that view. However, put simply, Melbourne 2030 reinforces the same direction given Box Hill's nomination as a principal activity centre. Moreover, through its own planning process, the Council has not retreated or stepped away from the view it has apparently held since 1991 that the neighbourhood north of Whitehorse Road is capable for more a higher level of development. Rather, the investigations in the past two years advocate a more intensive form than was the case in 1991. Indeed, its own Amendment, recently exhibited, suggests that 3-4 storeys in this location is possible with the area being advocated for medium to high density housing.

35 It follows from that retention of the existing character is not the appropriate benchmark for an assessment of the current proposal.

36 I am also not persuaded that the reference in the Housing Study to 5 dwellings per lot is a proper test as was suggested in some submissions. As noted at paragraph 32 above, the Housing Study refers to the development potential of Precinct 5 as including 3-4 storeys with a lower level, at one to two storeys, given the interface of the Precinct with existing residential areas. The Study has estimated a yield of 556 dwellings on that basis (1:150 or 5 dwellings per average lot). It does not suggest that all development throughout Precinct 5 should be at that density.

37 While some submissions also opposed any reliance on the Council's approval of a development of up to 5 levels in nearby Archibald Street, that too can not be ignored. While the physical context of that site differs, notably in terms of some of its abuttals and its lower topographic position, this approval demonstrates that the Council has not adopted the existing built form character or an average of 5 dwellings per lot as the appropriate tests. That approved development abuts single storey detached dwellings to its east and is opposite other single storey detached dwellings to its north.

38 In the policy context and physical circumstances of the site, the key question is degree of change that is acceptable. Being the first major development in Bruce Street, there is undoubtedly a level of caution or concern to ensure this proposal is an exemplar in terms of the implementation of the Scheme's policy directions. In my view, it is not particularly important whether the proposal is described as "medium", "higher" or "high" density as there is policy support for all. Rather, an acceptable density in any development is, in my view, most helpfully considered in terms of built form outcomes, internal layout and off-site considerations rather than in numerical terms or other descriptors per se.

39 The proposal was criticised by Ms Foley and Respondent Objectors in terms of its height, massing and continuous form and because it would not be compatible with the character of the area. The impacts on dwellings to the north, at Nos. 8 Bruce Street and No. 10 Elland Avenue, in terms of visual bulk, daylight impacts, noise and a loss of privacy were further major concerns. These submissions were challenged by the Applicant relying on the evidence of Ms Peterson and Mr Hutson.

40 The development would abut a car park to its south, with quite substantial planting within that car park. This is not an interface that should cause any great difficulty given the use of this public space and extensive existing landscaping. This part of the proposed development is also closest to the fairly substantial mass of the Uniting Church, but would be lower in height than the Church and set further back on the subject land.

41 The proposed development would adjoin the double storey form of No. 10 Elland Avenue and the attic style dwelling at No. 8 Bruce Street. It is this interface that is understandably at the heart of many of the concerns. The proposal, whether as proposed or reduced in scale as sought by the Council, clearly differs from these buildings and the row of dwellings to the north.

42 The consequence of the Council's policy stance in the short term will be larger buildings juxtaposed next to older more modest dwellings. In time, in the long term, the balance will probably tip from a few large new structures to older dwellings being "the odd ones out". The 2-3 storey form that would result from Condition 1(a) would produce a development that would be less "aggressive" (using Ms Peterson's words) compared with the 3-4 storey form proposed by the Applicant. However, I am satisfied that the interface of a 3-4 storey structure is acceptable taking into account the transition from north to south that results in the 3 storey section of the building being closest to the existing dwelling, with a height difference of 2.6 metres. The scale and mass is much greater but the landscaped setback along the north boundary would assist with a transition at this interface.

43 The front setback to Bruce Street is less than the adjacent dwelling to the north. However, at 8-9 metres at ground level and no less than 7.4 metres, it is acceptable taking into account the width of the building that is similar to buildings to the north and the level of articulation in terms of stepped elements to the north and materials. Good areas would available for landscaping, as access to the basement is proposed via Elland Avenue.

44 The building mass would extend down much of the review site whether at 2-3 or 3-4 levels. I am not persuaded that the form is unreasonable when considering the combined footprint of development on Nos. 8 Bruce Street and 10 Elland Avenue (the two storey dwelling at No. 10 Elland Avenue having been erected as a subdivision from the lot at No. 8 Bruce Street). The 3-4 level form would produce a more obvious result whether viewed in Elland Avenue, Bruce Street or Archibald Street, particularly as it is toward the topographic high point of this Precinct, but the policy direction if successfully implemented will cause such an outcome.

45 I am therefore satisfied in terms of character and streetscape considerations that the proposal at 3-4 levels is acceptable. In my view, the more difficult matter is in terms of off-site amenity impacts which I go to next.

46 The extent of the proposed development would create a visual bulk to the south of the existing adjacent dwellings and would be seen from several south-facing habitable and non-habitable windows. It is important to my determination that the private open space to both adjacent dwellings does not abut the review site. The proposed development would be difficult to see from the private courtyard to No. 10 Elland Avenue as it would be concealed by the dwelling itself other than in quite oblique views. The form of the proposed development would be seen in longer range views from other dwellings, but that does not give rise to a basis to reject it.

47 The proposed building would be more obvious from No. 8 Bruce Street as its open space is to the north-east of the lot with access. One would see the development from the north-east section of the yard, the eastern service yard and the narrow southern side setback.

48 The greatest impact of this development would be to No. 8 Bruce Street. That would be the case for either a 2-3 level building or 3-4 level building and it is self-evident that a lower form would be less intrusive and have less impact, such as on daylight. At 3-4 storeys, the eastern elevation would have a height of around 9.1 - 9.3 metres above existing ground level, although the land falls to the north by around a metre increasing the height differential. The building envelope complied with Clause 55.04, Standard B17, except for an eave, even though that test is not strictly applicable. At setbacks of 4 metres (minimum) reducing to 3.1 metres, an acceptable separation is achieved with good scope for planting along the northern site boundary.

49 In these circumstances, I am satisfied that an acceptable balance is achieved between allowing new development and protecting residential amenity and there is not a requirement to reduce the height of the proposed development by one level. I may not reach the same view if existing private open spaces were more exposed to the review site and the area was outside the Business Centre.

50 Owners of both adjacent properties referred to noise from balconies and the communal open space as well as privacy concerns. While I appreciate the basis for these concerns, I find no reason to reduce the scale of the proposal to 2-3 levels for these reasons. I note that there are permit conditions relating to fence heights along the north boundary and site management.

52 First, there was a suggestion in some submissions that there is already adequate student accommodation in the area. As relevant to this Application, this contention might be taken to mean that a reduction in the scale of the development is warranted as the accommodation needs of students are already being served. I have no evidence to support this contention and find no basis to reduce the scale of the development, or number of units, for reasons relating to the extent of existing or proposed student housing in the area.

53 Second, Ms Foley submitted that the Council would not have decided to issue a Notice of Decision without Condition 1(a). That is, the proposal is not acceptable on its merits without the condition (and other conditions discussed below). She submitted that as the conditions are not severable from the permit, and if the Tribunal feels they should be deleted, then the proper course is for the Tribunal to refuse the permit application entirely.

54 In making this submission, I understand that Ms Foley is relying on the provisions of Section 85(1)(g) of the Act that states that the Tribunal, after hearing an Application for Review, may cancel a permit if:

(i) it upholds an application for review of a condition specified in a permit on the ground that the Responsible Authority had no power to impose the condition; and

(ii) it considers that a permit should not or would not have been granted without the condition.

55 In considering the exercise of a discretion conferred under Section 87 of the Act, I would also be required to consider whether it would be fair and just to cancel a permit.

56 There was no suggestion in any submission that Condition 1(a) is beyond power and therefore the first test under Section 85(1)(g) is not satisfied. Moreover, I am wholly satisfied that Condition 1(a) is severable from the permit, that is to say that the permit can stand without the condition. Therefore, I find no reason to exercise the power vested in the Tribunal at Section 85(1)(g) of the Act.

57 In conclusion, I find that the proposal as put forward by the Applicant comprising a 3-4 level building is acceptable taking into account the policy directions of the Scheme and circumstances of the land and adjacent properties. As a consequence, I will direct the deletion of Condition 1(a) and will vary Condition 4(viii) and Condition 8 to refer to "47 persons".

Land Use - Section 173 Agreement and Site Management

58 The Council and Applicant reached agreement in relation to the terms of a Section 173 Agreement as provided for by Condition 3. I have adopted the agreed conditions giving weight to the fact that if a change in use from student accommodation was sought, then it would be necessary to vary or cancel the Section 173 Agreement. Thus, whether or not a planning permit is required to change the use, or for buildings and works, the Council would have to agree to a variation or cancellation of the Agreement. The terms of the Agreement would ensure that the use of the land remains as student accommodation, for tertiary students while studying full-time and for no longer than 3 months after full-time study ceases.

59 I have also adopted changes to Condition 4 agreed between the Council and Applicant, that address the requirements of a site management plan. Conditions that are not affected by this Application for Review ensure that there is an on-site manager or caretaker and that noise emissions are controlled beyond 10pm. The change in wording provides a process by which properties in an area defined in the site management plan are provided with contact details for the caretaker/manager and have an opportunity to discuss any concerns in relation to amenity impacts.

60 The plans provide for a garbage store enclosure to the rear, Elland Avenue, frontage of the site. Condition 1(l) requires that waste collection be in accordance with a waste management plan and specifically be from Bruce Street.

61 Ms Foley explained that this condition was sought by the Council given concerns by its engineers in relation to the practical operation of waste collection from Elland Avenue. Those concerns included insufficient space for on-street bin storage, impacts on traffic movement and access to parking, problems associated with reversing vehicles and the desire to avoid reliance on access through the Council's car park.

62 The condition was opposed by the Applicant on the basis that it would not be desirable to modify the building to provide for the garbage storage from the main site frontage. Mr Bisset sought to rely on the evidence of Mr Fairlie in relation to this matter. Mr Fairlie said that it is intended that a private collection service be used, rather than the Council service. He explained the way in which he believed the collection would operate using an area to the western end of Elland Avenue with the collection vehicle parked adjacent to No. 8 Elland Avenue and then bins moved manually between the garbage enclosure and collection vehicle.

63 Having heard his evidence, I asked Mr Fairlie whether consideration had been given to utilising the basement involving smaller collection vehicles and thereby avoiding on-street collection. That could be achieved, for example, by swapping the motorcycle/bicycle parking in the basement with the garbage enclosure at ground level. Mr Fairlie raised a number of issues in relation to vehicle access to and within the basement. In the end, Mr Bisset agreed with me that the basement could present a satisfactory option but proposed that the matter be to the Council's approval through a modified form of Condition 1(l) and the provisions of Condition 13 that require a waste management plan to the Council's satisfaction.

64 I am not satisfied that the arrangement proposed, using Elland Avenue at ground level within the street, is acceptable. Despite the suggestion that the garbage vehicle can park adjacent to No. 8 Elland Avenue, my primary concern is the potential for a garbage collection vehicle to block the laneway, the garage to No. 10 Elland Avenue and the access point to the Council's public car park that is to the south and east of the review site. With the intent by the Applicant to use a private collection service, the basement could readily be used with some relatively minor layout changes. I will provide for that by varying Condition 1(l) but leave the way open to use of Bruce Street should the basement for some reason prove unworkable.

65 For the reasons I have set out above, I will direct that changes be made to conditions included by the Council in the Notice of Decision.

[1] One submission referred to HO130 but that applies to 8 Bruce Street Mitcham, not Box Hill.

Environment Act 1987

Lanco Commercial Projects Pty Ltd v Whitehorse CC [2004] VCAT 1985

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

Lanco Commercial Projects Pty Ltd v Whitehorse CC [2004] VCAT 1985 (7 October 2004)

Parties

Legislation Cited (1)