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[2003] VCAT 577
respondent. The decision of the Responsible Authority in relation to permit application No 2002-278 is affirmed and a permit is to issue (see Order and [25]).
VCAT affirmed Warrnambool City Council's permit to replace an old underground public toilet with a modern above-ground facility at the Koroit/Liebig Street corner. The Tribunal found the proposal consistent with State and Local planning objectives (safety, accessibility, design), met established site/design objectives for public toilets, left sufficient footpath width, and did not unreasonably affect pedestrian or vehicular movement. Procedural objections about informal consultation were rejected because statutory permit procedures had been followed.
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Warrnambool City Council sought a planning permit to replace an existing underground public toilet in the Koroit Street road reserve, at the north‑west corner of the Liebig/Koroit intersection in Warrnambool’s CBD, with an above‑ground "Excel Loo" facility (three bowls including an accessible fixture), occupying a 43.2 square metre footprint and leaving a three metre clear footpath adjacent to 107 Liebig Street (see [7], [19]). The Council lodged the application on 4 October 2002, issued a Notice of Decision to Grant a Permit on 3 December 2002, and the neighbouring owner Carl Ludeman lodged an application for review in VCAT on 16 December 2002 challenging the decision on grounds of overdevelopment, impact on visual amenity to his shop at 107 Liebig Street, pedestrian congestion, and improper planning and consultation (see [2]–[4]).
1 cited instrument linked from this judgment.
VCAT (Member John Bennett) heard the review on 6 May 2003, inspected the site, examined the plans, photos and submissions, and delivered written reasons on 15 May 2003. The Tribunal affirmed the Responsible Authority’s decision and ordered that a permit issue (Order; see [25]).
The Tribunal’s reasoning rests on a combination of purposive policy assessment and site‑specific factual findings.
Policy alignment: The Tribunal considered State and Local Planning Policy Frameworks but found State policy of limited direct relevance to this relatively minor, site‑specific proposal. It nevertheless identified core policy themes, safety, accessibility, efficient infrastructure use and quality of design, as directly relevant (see [10]–[13]). The Tribunal concluded that replacing an underground toilet with a visible, accessible above‑ground facility advances those policy objectives and is therefore consistent with the planning scheme (see [13], [23]).
Objective criteria for public toilets: The Tribunal expressly adopted and applied the eleven objectives used in Podbury & Ors v Boroondara City Council (as summarised at [16]). These objectives include central location, co‑location with attractors, presence of natural surveillance, architectural fit, clear viewlines, conspicuity, lighting, provision of multiple fixtures, visible entries, maintenance and durable materials. The Tribunal found all eleven objectives to be met by the proposal (see [16]–[17]).
Site inspection and factual findings: The Tribunal inspected the site and surrounding urban context, noting the existing underground facility’s limitations, poor safety, poor accessibility for people with disabilities, and negative perception, so that the above‑ground replacement would represent a clear improvement (see [12]–[13], [21]). It found that the proposal would leave a three metre wide clear footpath which it judged adequate, and that the proposal did not encroach on the roadway or materially affect sight lines for vehicular traffic (see [19]–[20]).
Procedural sufficiency: The Tribunal distinguished informal pre‑application consultation from statutory notification requirements and accepted Council’s evidence that the permit application and notification procedures required by the Planning and Environment Act 1987 had been followed. Therefore the informal nature of earlier consultation did not invalidate the process (see [14]).
On the combination of these legal and factual points, the Tribunal concluded the proposal should be permitted and affirmed the Responsible Authority’s decision (see [23], [25]).
Before this decision, VCAT had recently confronted similar issues raised by street toilets and the tension between prominence (needed for safety and useability) and potential adverse amenity or design impacts. The Tribunal here relied on two earlier VCAT authorities: Davis & Ors v Yarra City Council [1999] VCAT 758 (referred to at [15]) and Podbury & Ors v Boroondara City Council [2002] VCAT 38 (adopted at [15]–[17]). From Podbury the Tribunal adopted an explicit set of eleven objectives as an assessment tool for public toilet proposals.
After this decision, the principled approach is reinforced: where a public toilet replaces an existing facility on the same site, and the new facility demonstrably advances safety, accessibility and urban design objectives while not causing unacceptable movement or amenity impacts, Tribunal practice will be to permit. The decision is incremental and fact‑driven rather than doctrinally novel. It confirms that the application of standard planning scheme principles and the Podbury objectives is an appropriate way to resolve contested public toilet siting in a CBD context (see [15]–[17], [23]).
“[I am] completely satisfied that the proposal ... is consistent with relevant State and Local Planning policies in relation to safety, social needs, amenity, accessibility, infrastructure and urban design.” ([13]) Plain English: The Tribunal found the proposed above‑ground toilets fit with the planning rules and goals, because they make the area safer, more accessible and better designed.
“I am persuaded that public toilets must be located in prominent positions so that people know they are there and feel safe using them.” ([15]) Plain English: Public toilets need to be visible; visibility helps people find them and makes them safer to use.
“I consider that all of these are met in the proposal before me.” ([17], referencing the eleven Podbury objectives) Plain English: The Tribunal checked the proposal against a list of desirable features for public toilets and concluded it met them all.
“The 'informal' consultation ... is not a matter for consideration by the Tribunal. My interest is that Council has correctly followed the permit application procedures set out in the Planning and Environment Act 1987.” ([14]) Plain English: The Tribunal will not overturn a permit just because earlier discussion was informal, provided the legal notice and permit steps were followed properly.
“In making my assessment ... I have weighed up the various competing policies concerning health and safety, accessibility, efficient use of infrastructure, and quality of design.” ([23]) Plain English: The Tribunal balanced the different planning goals and found the benefits outweighed the objections.
This decision is most directly relevant in fact patterns where:
Practitioners should therefore expect this decision to be persuasive when an authority proposes an above‑ground toilet on an existing toilet site within a retail core and can show the same sorts of policy and site benefits examined here.
The judgment itself does not record any subsequent judicial treatment. It relies on and expressly follows Podbury (which supplied the eleven objectives) and considers Davis. Because this is a VCAT Member’s decision (not a higher court), its persuasive weight is within VCAT and in local planning contexts. To determine how later tribunals or courts have treated Ludeman, targeted research beyond the text of this judgment would be required. The present decision, however, clarifies and operationalises the Podbury objectives and demonstrates their practical application, so later planners and tribunals addressing similar urban toilet siting questions are likely to treat Ludeman as an instructive example of policy‑led, site‑specific balancing.
Several questions remain open or depend on facts not addressed in this judgment:
Conclusion: Ludeman v Warrnambool CC is a practical, policy‑driven planning decision that affirms an authority’s power to modernise public amenities in central locations when the works demonstrably advance safety, accessibility and urban design, leave adequate pedestrian circulation, and comply with statutory process. It illustrates a clear method: apply relevant planning policy, use objective siting/design criteria (Podbury), inspect the site, and make fact‑based findings about impacts.
Application under Section 82 of the Planning and Environment Act 1987: Warrnambool Planning Scheme; Road Zone 2; Upgrading and replacing an existing Public Toilet
Subject Land Koroit Street Road Reserve, Warrnambool
MEDIUM NEUTRAL CITATION: [2003] VCAT 577
_____________________________________________________________________
1. The decision of the Responsible Authority in relation to permit application No 2002-278 is affirmed.
For the Respondent (Permit Applicant) Marita Foley, Counsel
For the Responsible Authority Andrew Lacey, Executive Manager Development Services, Warrnambool City Council
1. This was an application under Section 82 of the Planning and Environment Act 1987 to review a decision by the Warrnambool City Council to Issue a Notice of Decision to Grant a Permit for construction of buildings and works associated with upgrading the existing public toilet facility in the Koroit Street Road Reserve, Warrnambool.
2. Warrnambool City Council lodged the application for permit (No. 2002/278) on 4th October 2002. Following the giving of notice of the application, 2 objections (including a petition) were received. The grounds of objection were summarised in the Council officer's report.
3. The Notice of Decision to Grant a Permit was issued on 3rd December 2002.
4. The Application for Review was lodged by Carl Ludeman on 16th December 2002. The Statement of Grounds were:
1. The proposed development is an over development in the circumstances.
2. The proposed development would adversely affect the visual amenity of the Applicant's adjoining property at 107 Liebig Street, Warrnambool
3. The proposed development will cause undue pedestrian congestion.
4. The proposed development is not in accordance with principles of proper and orderly planning.
5. I have considered all the photos, plans and other material presented at the hearing, together with notes made during the hearing when Mr Ludeman gave his verbal submission. I have also inspected the site and surrounding area including the property at 107 Liebig Street on two occasions.
6. I find the following description of the land and locality, taken from the submission by Mr Lacey for Warrnambool City Council, to be an appropriate one and confirms my observations during a site visit.
The subject land is described as the Koroit Street road reserve located on the north west corner of Liebig and Koroit Streets. The public toilet has a "footprint" of 43.2 square metres and is sited over the footprint of an existing underground public toilet facility located within the Koroit Street road reserve. Immediately to the north of the site there is an existing commercial building having a frontage to Liebig Street. The building is occupied by a women's clothing retail outlet known as "Sussan". The south wall of that building is adjacent to Koroit Street and whilst it contains display windows on the corner of Koroit and Liebig Streets the wall is predominantly blank.
The subject land contains an underground public toilet facility, which has been established on the site for many years. Separate access is provided to the male and female facilities by stairwells located at the east and west ends of the complex. The public toilets are identified by signage displaying the words 'Ladies' and 'Gents'. The toilets can be closed to the public by locking gates located within the respective stairwells.
The intersection of Koroit and Liebig Street is located within the heart of the Warrnambool CBD. Surrounding land uses are all business activities and comprise predominately retail shops. Bus stops are located both on the north and south side of Koroit Street, west of the appeal site.
The following businesses are located on the other corners of the intersection of Liebig Street and Koroit Street
North East Corner - Beach Club (Clothing Retailer)
7. The following is a description of the proposal contained in the submission by Warrnambool City Council:
The proposal is known as an "Excel Loo" public toilet. It is a unisex toilet facility enclosed within a building, which allows for disabled access. There are proposed to be three toilet bowls. One of which will be specifically dedicated for users with limited mobility.---. The proposal comprises of 2 modules, which have access via a sliding door from a central circulation space within the building. The circulation space is open to the footpath and the Koroit Street (south) elevation is enclosed by glazing. The building is proposed to have a total area of 43.2 square metres (4.5 metres x 9.6 metres); the building will have a total height of 4.2 metres above the existing pavement level. The building is proposed to be setback three metres from the wall of 107 Liebig Street. That is, the footpath adjacent to the facility will have a width of 3 metres.
Access via the sliding doors is gained by the user pressing a button. Inside the toilet facility there is a toilet bowl, press button paper dispenser, a recessed basin (water, soap and sensor operated dispenser). A mirror is installed in the disabled facility. The facility is 'self cleaning' in that a sprinkler and air drying occurs after use. There is a warning that this is to occur. The toilets will be open 24 hours per day. The facility has an inbuilt security system to aid and increase security within and around the facility. The building materials and finishes are unspecified however a condition of the notice of decision requires details of exterior materials and finishes to be submitted to the responsible authority for approval.
8. The subject site is in a Road Zone Category 2 under the Warrnambool Planning Scheme. Adjoining land is in the Business 1 Zone.
9. In addition, other Clauses of the Planning Scheme relevant to consideration of the Application include:
s State Planning Policy Framework - Clauses 13 (Principles of Land Use and Development Planning), 17.02 (Business) and 19.03 (Design and built form)
s Local Planning Policy Framework - Clauses 21.04 (Municipal Vision Statement) and 22.03 (Economic Development).
s General provisions - Clauses 63 (Existing uses) and 65 (General Decision Guidelines)
10. The application is for the replacement of an existing below ground toilet with a modern toilet building sitting on the footpath at street level, and broadly covering the same site as that occupied by the below ground facility. In general terms it extends for the same length along Koroit Street but is wider than the footprint created by the stairwells and infrastructure associated with the existing facility. Council provided me with an assessment against relevant State and Local Planning Policy Frameworks but I am of the opinion that State Planning Policy has little direct relevance to this relatively minor proposal to replace an existing public toilet. Policies regarding health and safety, accessibility, efficient use of infrastructure, and quality of design have general relevance. My inspections of the site and the surrounding commercial area allowed me to consider at first hand the issues raised by Mr Ludeman and to assess impacts on his shop. I was also able to assess the proposal as outlined to me by Mr Lacey and Ms Foley, and to understand how the new toilet facility replaces the existing underground facility and fits into the Koroit/Liebig streetscapes.
11. The Local Planning Policy Framework in relation to infrastructure encourages the provision of a range of community and social facilities sufficient to support the future population base. Local policy for the Central Activities District (22.03) applies to the core retail, business and office precinct of Warrnambool. In the section headed Implementation, it is policy that (amongst other matters):
Warrnambool Central Activities District be developed and maintained as a centre of tourism, recreation and entertainment, with services to residents and visitors (accommodation, restaurants, cafes and other attractions) sited in close proximity to the retail core and the link between the retail core and the foreshore reinforced in the urban design of the centre.
Capital improvement and beautification programs be undertaken that enhance the safety, amenity, appearance and convenience of the centre.
12. Mr Lacey also referred me to the Warrnambool Urban Design Framework prepared by David Lock and Associates. Council has adopted the Framework and it is Council's intention to incorporate the Framework into the Planning Scheme. However an amendment has not yet been prepared for exhibition purposes. However I note that the Framework makes specific reference to the poor quality of the three existing public toilets within the city centre and recommends, amongst other matters, that existing facilities be upgraded in their appearance and ease of maintenance, and that safety be improved through lighting and more active surroundings. Even aside from these recommendations, it is obvious that the current underground toilet has severe limitations in terms of personal safety and accessibility for people with disabilities. Even in the middle of the day and with lots of pedestrians about, I felt reluctant to descend into the toilet and can well imagine that safety would be a major issue for certain groups in the community. In addition people with disabilities would find it impossible to descend and ascend the steps.
13. I am therefore completely satisfied that the proposal to replace the existing underground public toilets with above ground toilets with modern, more functional facilities which are clearly visible (improved personal security) and accessible to a much wider range of people (eg limited mobility or visually impaired) is consistent with relevant State and Local Planning policies in relation to safety, social needs, amenity, accessibility, infrastructure and urban design.
14. Mr Ludeman and Council were in agreement that toilet facilities are necessary. The key issue in dispute was where they should be located and I now turn to the specific question of whether the new toilets should be located on the review site. Mr Ludeman submitted that there were more appropriate sites within the city centre for new or upgraded toilets and that Council should not just be considering the review site located next to his shop. While I found this discussion of general interest, it is not my task to assess a range of site options and I am only required to consider the merits of the proposal before me. In other words, this particular proposal has to stand or fall on its own merits. Mr Ludeman also expressed concern about Council's failure to advertise the proposal and inadequate notification to him personally. The 'informal' consultation and notification approach which Council took with traders, landowners and others prior to making application for a planning permit is not a matter for consideration by the Tribunal. My interest is that Council has correctly followed the permit application procedures set out in the Planning and Environment Act 1987. In that regard, Mr Lacey provided information in his submission about the history of the application including referrals, notification and objections and I am satisfied that Council has followed the proper procedures and that the application was dealt with in an appropriate manner.
Objectives or criteria for assessing the suitability of the site for a public toilet
15. I have considered the decisions in Davis & Ors v Yarra City Council [1999] VCAT 758 and Podbury & Ors v Boroondara City Council [2002] VCAT 38 that were referred to me by Ms Foley. I found the discussion in these in relation to firstly, the inherent contradiction between needing a prominent location for a public toilet and their often inappropriate appearance and secondly, to a list of objectives to be used when assessing the location and design of a public toilet to be of considerable assistance in terms of my assessment of the proposal before me. I am persuaded that public toilets must be located in prominent positions so that people know they are there and feel safe using them. Provided the actual design is of a high standard (and I consider the proposal before me is that) then a location such as the corner of Koroit and Liebig Street is highly suitable, and a toilet in such a location will successfully fulfil its role because of its high visibility.
16. In relation to the use of objectives to assess proposals for public toilets, I found the eleven objectives identified by Mr Holdsworth in Podbury & Ors v Boroondara City Council [2002] VCAT 38 to be of considerable merit. They are:
* The toilet is in a central location within its user catchment.
* The toilet is co-located with other attractors or destinations: such as drinking fountain, seats, shelters, ATMs, flower stalls, newspaper kiosks, etc.
* People are likely to be in the vicinity to provide visual surveillance.
* The toilet is designed to reflect the architectural character of its surroundings.
* Approach routes and the immediate vicinity have clear viewlines and are as free of entrapment opportunities such as corners of buildings, walls, fences, shrubbery, parked vehicles etc as possible.
* The toilet block is not hidden from view or disguised.
* Lighting in the vicinity is of a level higher than is general in public places.
* A minimum of two automatic toilets are located together to reduce waiting time (due to slow through-put of such facilities).
* Entries and wash-room areas are visible, and blind corners are eliminated (not applicable to automatic toilets).
* The surrounding are is maintained in a clean condition.
* Materials are low maintenance of light colour and robust construction.
17. I consider that all of these are met in the proposal before me. Even objective 2 that relates to co-location can be said to be met because of the nearby bus stops on both sides of Koroit Street, Bank ATM and a wide variety of shops. Based on these objectives, the Council would appear to have 'got it' right way back in 1941 when plans were drawn up to construct the existing underground toilet on the review site. What has changed since then though, are community expectations in relation to safety, standard and cleanliness of public toilets and accessibility for all members of the community.
Suitability of the site for continued use as a public toilet
18. I now turn to the specific concerns raised by Mr Ludeman in relation to pedestrian and vehicular congestion, public safety, vandalism, attraction of the site to 'undesirables' and possible restrictions on future development of his property adjacent to and facing the review site.
19. In relation to pedestrian and vehicular congestion I am not persuaded that the provision of an above ground toilet will adversely affect pedestrian movement. The above ground components of the existing toilet already take up a considerable area of the footpath along the side of Mr Ludeman's shop. I accept that the new toilet will be wider than the existing facility, but the footpath is very wide and the toilet will be positioned so as to leave 3 metres of clear footpath for pedestrians. I consider this quite adequate and do not accept that congestion will be caused.
20. In relation to vehicular movement, the corner of Liebig and Koroit Streets has been recently narrowed in width to reduce eastward traffic flow in Koroit Street to one lane. This has clearly been a controversial decision and has caused community angst according to newspaper reports presented to me by Mr Ludeman. In this case I am not concerned with issues relating to traffic management because the proposal does not impact on the roadway or gutter. I understand Mr Ludeman's submission that without the road narrowing then the proposed toilet could not be positioned as now planned. However, I accept the situation as it is at present - if for some reason the road is widened or some other change is made which necessitates a change to the location of the toilet then the proposal will have to be looked at again. But that is not for me to consider or speculate about at this time. In relation to the toilet blocking views of pedestrians about to cross over Koroit Street, my inspection (including driving a vehicle along Koroit Street in an easterly direction) has not convinced me that this will be a problem in relation to sight lines and the relatively slow speed of vehicles entering the intersection.
21. In relation to public safety, possible vandalism and attraction of the site for 'undesirables', I am of the opinion that these will not be exacerbated by the proposed toilets. Indeed I take a contrary view that the new toilets will most likely improve public safety and be less of an attractor for 'undesirables' than are the existing underground facilities. Vandalism and graffiti are somewhat endemic in all urban areas, and particularly in locations accessible to the general community. I saw some evidence of graffiti and vandalism while travelling around Warrnambool but nowhere like the levels seen in some Melbourne suburbs. While graffiti and vandalism cannot be ruled out, my assessment of the project against the objectives identified by Mr Holdsworth, leads me to the conclusion that the new toilets will be located and designed so as to best minimise such occurrences.
22. In relation to future development of 107 Liebig Street and in particular the provision of windows and doors in the side wall facing Koroit Street, I cannot speculate about what may or may not happen in the future. I do know that the existing shop faces Liebig Street with a relatively small area of display window facing Koroit Street near the Liebig Street corner. Photos of the side wall of the building show that at one time doors and or windows did face onto Koroit Street. However these appear to have been bricked up for many years although no one could give me definitive date for this work. The existing toilet infrastructure already impacts to some extent on the side wall of Mr Ludeman's property and would in any event influence the location of new doors and windows, even if a new toilet block were not constructed. If Mr Ludeman (or some future owner) decides to remodel the shop with doors and windows facing Koroit Street, then that proposal can be assessed having regard to situation at that time.
23. In making my assessment of the proposal I have weighed up the various competing policies concerning health and safety, accessibility, efficient use of infrastructure, and quality of design. Replacing the existing underground toilet with a more modern facility with improved features, greater personal safety, easier maintenance and greatly enhanced access for people with disabilities will be a major improvement in public infrastructure within the city centre. As such, I am satisfied that the proposal before me will make a positive contribution to the attractiveness of the Warrnambool city centre to shoppers, workers and visitors by providing enhanced public toilet facilities in a very central location - and one that has been used for a public toilet for around 60 years.
24. In relation to the specific concerns raised by Mr Ludeman about traffic and pedestrian movement, pavement congestion, possible vandalism (including graffiti), and loss of opportunities to open up the side wall of his building facing Koroit Street, I am not persuaded that these are sustainable or that they justify rejection of the proposal.
25. Accordingly, I will Order that the decision of the Responsible Authority in relation to Planning Permit Application No 2002-278 be affirmed and that a permit issue.
Ludeman
Warrnambool CC [2003] VCAT 577
The decision of the Responsible Authority in relation to permit application No 2002-278 is affirmed and a permit is to issue (see Order and [25]).