Victorian Civil and Administrative Tribunal|2006-02-17

Marchbank v Hepburn SC [2006] VCAT 225 (17 February 2006)

Planning and Environment Act 1987; car parking condition; vague and uncertain; possible requirement for future provision of car parking; parking generation condition must be current and certain.

The decision of the responsible authority is varied. The Responsible Authority is directed to issue a permit under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 1-3 Church Avenue, Hepburn Springs which allows buildings and works and use of an existing building for the purpose of a residential hotel with associated facilities in accordance with plans by WAQ Drafting and Building Maintenance Plans Nos. 1 - 17 Project No. 05011 all dated 15 June 2005, as well as allowing a reduction in the requirements for car-parking. The Tribunal directs that the permit must be subject to the conditions contained in the Notice of Decision to Grant a Permit No. 2005/8677 issued by the Responsible Authority on the 24 October 2005 subject to the following modifications:

The following facilities shall only be open during the following times seven days a week:

ii. Bar/food service: 9.00am to 11.00pm Sunday to Thursday and 9.00am to 12.00 midnight on Friday and Saturday

iii.

Restaurant: 6.00pm to 11.00pm Sunday to Thursday and 9.00am to12.00 midnight on Friday and Saturday

iv.

In house service: 24 hours

v.

Lounge: 11.00am to 11.00pm Sunday to Thursday and 11.00am to 12.00 midnight on Friday and Saturday

Disabled parking, including at least one space 3.2 metres wide, must be provided to the satisfaction of the responsible authority.

3. Condition 22 must be deleted and replaced with the following condition:

The external decks shown on the plans accompanying the permit must not be used for the consumption of food or drink after 9.00 pm daily.

4. The following condition 27.3 must be added to condition 27:

Provide bicycle parking in accordance with c. 52.34 of the Hepburn Planning Scheme to the satisfaction of the Responsible Authority.

Except as provided for in the Hepburn Planning Scheme, car parking is to comply with Australian Standard AS2890.1.

Ms Julie Davis of counsel, instructed by MMR Legal. Ms Davis called Mr Henry Turnbull, consultant traffic engineer of Traffix Group Pty Ltd as an expert witness.

1 The objector reviews Council's decision to grant a permit for a residential hotel and associated facilities in Hepburn's Spa District and the owners review a permit condition aimed at the possibility of requiring more parking spaces at a later point in time.

2 The proposal contains:

•

15 bedrooms

•

1 conference room

•

1 massage room

•

1 treatment room (facials; hair)

•

1 spa room (enclosed)

•

1 dining room (restaurant)

•

1 lounge with bar

•

R1 zone

•

ESO Schedule 1

•

ESO Schedule 2

•

HO17 - The Grand Hotel

•

HO18 (to be deleted under a proposed housekeeping planning scheme amendment because HO18 relates to a demolished house).

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.

5 Much of Ms Gervasoni's opposition to this proposal stems from the controversy surrounding Peppers/Springs Hotel Spa complex and its plan amendments. See Malcross Investments PL v Hepburn Shire Council[1] and Hepburn Shire Council v Cross[2] This can be explained by the difference between the words in the permit application, the public notice description and the resulting NOD preamble, which read in turn:

Permit application:

Guest House, restaurant, conference centre, Waiving of car parking, signage and associated works

Use of an existing building as a residential hotel, including a carpark, landscaping, signage and waiving of car parking requirements

Use of an existing building as a residential hotel, restaurant, conference centre, day spa, development of associated facilities including car park, landscaping, signage and waiving of car park requirements

6 Given the breadth of the words in the NOD, it is understandable that Ms Gervasoni foresees a time in the future when it is arguable that the whole of the large two-lot site can be for use as a separate conference centre, and separate spa complex, instead of these more limited uses which are associated with and are also contained inside, the existing building proposed to be used as a residential hotel.

7 To that end I have allowed her review in part and required the amendment (by narrowing) of the preamble to the permit, as expressed in my Order. But that also means I have limited the extent of the land use and see no need to re-advertise the application. One of her grounds of review was that the proposal had not been accurately advertised and would mislead neighbours.

8 I have decided to allow the proposal over the objections of Ms Gervasoni because of the persuasive traffic engineering evidence of Mr Turnbull, for the following reasons.

9 Mr Turnbull has been conservative in his calculation of the car spaces generated by the proposed residential hotel, even taking the components as operating independently of each other.

10 He has not relied upon any credits for the past and historic use of the hotel as either a hotel or special accommodation. He has assessed on the basis of one car space for each of the fifteen guest rooms provided, and assumed 100% occupancy.

11 To that he has added the parking spaces generated by separate or independent use of the restaurant, conference and spa/massage facilities.

12 For the restaurant, conference and spa/massage component, he has used empirical data based upon surveys, which figures ring true, as opposed to the rougher floor area figures used by the planning scheme. The latter observation was also made by Deputy President Gibson in Four Seasons Hotel Pty Ltd v Hepburn Shire Council[3], whom I quote below.

13 Further, all his figures assume full occupancy of each facility at the same time.

14 Mr Turnbull then gave a conservative fifty percent discount for combined use of all facilities of the hotel by in-house patrons, thus allowing for fifty percent external patronage as well. Again, Deputy President Gibson in Four Seasons Hotel Pty Ltd v Hepburn Shire Council supported this methodology:

With respect to the evidence regarding peak parking demand, I prefer the evidence of Ms Dunstan on behalf of the applicant. The type of hotel, its location and the facilities to be provided mean that it is likely to have a very integrated operation. On occasions when the conference/function rooms are operating to capacity I consider it is likely that a substantial proportion of attendees will also be resident in the hotel. I therefore consider it is appropriate to reduce the number of car spaces attributable to the conference/function rooms by 50% to take account of this. I also consider it is more appropriate to calculate the number of spaces by reference to seats rather than floor area. In a situation where the number of seats or patrons can be specified as a permit condition I consider this is a more appropriate approach to use than the floor area approach.

15 He arrives at a conservative generation of forty one spaces, with 23 spaces provided on site and five spaces on an area abutting the hotel at the head of the unused road reserve portion of Ninth Avenue, leased by the hotel from DSE for 100 years. As to the difference between the three calculated by Ms Gervasoni and the five mooted by the applicant and accepted by council, the latter can line mark same (on the road reserve unused portion) if the need ever arises.

16 That leaves a reliance on thirteen on-street spaces on Church Avenue at peak operating times and at peak occupancy. Both parties' photos prove people park on the nature strip instead of abutting the kerb, but Mr Turnbull has satisfied me that the 7.1m wide road pavement width is technically and legally adequate for parking on both sides of the road, in accordance with Table C6 to cl.56.07-4 which footnote no. 4 says:

7 - 7.5m width should be used when parking is required on both sides.

17 Ms Gervasoni went to great lengths to count the number of potentially awkward parking spaces on-street, but I accept that persons need to exercise common sense and caution when parking, passing and reversing out of driveways. I think it would be improper of me to ignore planning scheme criteria. As Mr Turnbull points out, the fact that people walk on the road indicates low road traffic usage.

18 Ms Gervasoni's car space count confirmed 30 on-street spaces, which providing for 19 abutting dwellings, leaves ample sharing between the Hotel's 13-space need, and the 10-space need suggested by Henry Turnbull for the residents.

19 Moreover, Mr Turnbull pointed out that Ninth Avenue is more likely to be used than Church for overflow parking, and if there is a problem, its wide 12.00 metre road pavement can be converted to angled parking by Council to provide more spaces. Residents could easily lobby for the latter, if there is a future problem.

20 Once again, given the statutory requirement of 7.0 metre pavement widths and satisfaction that parking can occur both sides, I cannot apply the non-statutory CFA requirements of minimum desired 7.3 metre wide pavements, on which Ms Gervasoni relied.

In the event of overflow car parking causing, in the Responsible Authority's opinion, a nuisance and parking provision shown on the endorsed plan being deemed inadequate, an additional car parking area(s) must be provided at a location and to a level that is to the satisfaction of the Responsible Authority within three months of a request in writing for such from the Responsible Authority

22 I have decided to allow the deletion of condition 22 over the objections of Mr Hatwal because of the persuasive evidence of Mr Turnbull, for the following reasons.

23 This condition was described by Ms Julie Davis as 'having a bet each way', because it demonstrated council's insecurity with the adequacy of parking supply, although Mr Hatwal explained council was happy with the applicant's parking generation figures. This condition was more directed to a future Council parking precinct plan, which Mr Hatwal advised might be carried out in Church Avenue at some undefined time in the future.

24 I am requiring its deletion because:

i

I am persuaded by Mr Turnbull's evidence on parking generation by this use, which was subject to cross-examination by Ms Gervasoni;

ii

The condition is vague and uncertain;

iii

It is designed to 'have a bet each way';

iv

Permits need to give their holders certainty;

v

It is not the approach of proper planning to leave the adequacy of parking to a later date, to subject any permit holder to the opinion of the Responsible Authority, or to await a future parking precinct study to require additional parking or cash in lieu thereof.

25 Given the agreement of council's traffic engineers with Mr Turnbull's suggested conditions wording for disabled spaces, parking dimensions and bicycle provision, I have included those uncontested changes.

26 The permit applicants took exception to my investigating the impact of outdoor night time dining on their two external decks, since only Ms Gervasoni (who does not live next door) was concerned with same instead of the immediately abutting neighbours who wrote:

As for the decked area, there will be no imposition resulting from its building on our enjoyment of the area. The decked area will in fact be an important addition to the site given the severe embankment and safety issues associated with its current neglected state. The proposed deck would have no greater impact than any other residential deck. The land is surrounded by large trees and the proposed landscaping will blend it into the environment. It will not be visible from any public areas and should not be of any concern to anyone other than the owners.

27 But the neighbours assume 'no greater impact than any other residential deck' and I do not share their trust, hope or enthusiasm. My experience, and that of Ms Gervasoni, who is a planning officer for Macedon Ranges Shire Council, is that night time external revelry is a disturbance to neighbours, and that hotel use of facilities is greater than normal residential use. To that end I have found it desirable to limit night time operation of the decks as places where food and drink may be consumed to 9.00pm daily to allow neighbours and their children to sleep.

28 As for the hours of operation generally, I have brought them into line with usual Spa District practice, given the site's location in a residential zone and residential street. It is a balance between supporting the tourist promotion and protecting the right of residents to sleep at night, less disturbed by revellers departing from their cars parked on or accessing Church Avenue.

[1] [2005] VCAT 1435 (18 July 2005)

[2] [2005] VCAT 2231 (21 October 2005).

[3] [2004] VCAT 1584 (11 August 2004).

Marchbank v Hepburn SC [2006] VCAT 225

At a glance

Court

Decision date

Source

Judgment (38 paragraphs)

Marchbank v Hepburn SC [2006] VCAT 225 (17 February 2006)

Parties