Victorian Civil and Administrative Tribunal|2009-08-19

Melbourne Sae Soon Church Inc v Whitehorse CC [2009] VCAT 1698 (19 August 2009)

Section 77 of the Planning and Environment Act refusal of use of industrial building for a Church and associated parking; waiver of parking numbers; parking and access major issues; noise; not in keeping with industrial strategies; amenity issues for nearby residential properties.

Melbourne Sae Soon Church Inc v Whitehorse CC [2009] VCAT 1698

The decision of the Responsible Authority is set aside. A permit is granted and is to issue for the use of an industrial building at 39 Ireland Street, Burwood, in accordance with the endorsed plans and subject to the conditions contained in Appendix A.
The permit allows the use of an industrial building for the purposes of a church, buildings and works, waiver of car parking.

Mr Dom Scally, Solicitor of Best Hooper. Mr Scally called Mr Timothy De Young Traffic Engineer of GTA Consultants and Mr Peter Tesdorph of Land Use Town Planning Service as witnesses

This review considers the establishment of a church with decreased parking numbers on the edge of an industrial area abutting a residential area at 39 Ireland Street, Burwood.
Following its receipt of the application, the Council expressed its concern about it to the applicant and after receipt of a reply, required notice of application to be carried out that resulted in eight objections. The objections were about on street parking, increased traffic, lack of onsite parking, reduction of amenity, particularly at the weekends and noise impact. The Responsible Authority, after consideration of these issues, refused the application as follows:
1. The proposal is contrary to the State Planning Policy Framework at Clause 12.04 (a more prosperous city) and 17.03 (industry) of the Whitehorse Planning Scheme.
2. The proposal is contrary to the Local Planning Policy Framework at Clause 21.07 (economic development) of the Whitehorse Planning Scheme.
3. The proposal fails to meet the purpose of decision guidelines of the Industrial 3 zone.
4. The proposal does not provide an adequate number of car parking spaces onsite and fails to meet the purpose and decision guidelines of Clause 52.06 (car parking) of the Whitehorse Planning Scheme.
5. The proposal will have a detrimental effect on the amenity of the area and fails to meet Clause 65 (decision guidelines) of the Whitehorse Planning Scheme.

The site is presently occupied by single level buildings with the larger northern section proposed to be used as the church. This shares 17 parking spaces with a southern part of the building presently occupied for the manufacture and warehousing of furniture. It is on the edge of a large industrial precinct abutting a residential precinct to its north. It has an area of 2145m2 with a frontage of 50.29 metres to Ireland Street and 42.67 metres to Tudor Street on the corner of which it is located. It is reasonably well located to Highbury Road and to its north is Burwood Highway, several hundred metres away.

This is to use the northern section of the building as a place of worship that will include a church hall and associated offices and a youth and Sunday school. It is also to reduce standard parking requirements. The hours of operation are proposed to be:

Some alterations such as four new windows on the east elevation are proposed. The applicant has also reduced the maximum number of occupants of the premises from 150 to 100 maximum.

The land is zoned Industrial 3, a zone that is a transitional and buffer zone between other industrial zones and residential areas, whose uses do not affect the safety and amenity of adjacent, more sensitive uses. A Place of Worship requires a permit in the zone. Apart from the relevant State and Local Planning Policy Frameworks, the MSS and Local policies, Clause 65 of the planning scheme must also be considered in the assessment of the application.
The Responsible Authority sees both Clauses 12.04 and 17.03 of the State section as having important implications as they strive to ensure that adequate industrial land uses are available to resource industry, ensure the availability of land for industry and prefer industrial activities to be protected from encroachment of unplanned commercial, residential and other sensitive uses that may affect its viability.
In relation to the Local planning policies, the MSS at Clauses 21.01 and 21.07 note that industrial activity is very important in the regional economy of Whitehorse as manufacturing provides for 14 percent of local employment. Whitehorse contains the largest concentration of offices and some of the largest industrial areas, in particular information technology, telecommunications and media related businesses. Clause 21.07 also seeks to "discourage non industrial related uses from locating in industrial areas".
Clause 52.06-1 requires that a permit is obtained to waive parking requirements. The parking requirements for 100 seats would be approximately 30. This leaves a net deficit of 13 spaces.

As part of its management of this application, it was referred internally to the Council's Traffic Engineers and Strategic Planners. The traffic engineers, although agreeing that the excess number of spaces could be accommodated on street, was concerned about parking in front of residential properties opposite the industrial zone that would impact upon residential amenity. It was also concerned that the parking bays do not comply with the Australian standards or the planning scheme. The strategic planners also did not support the proposal.

At the hearing, detailed witness statements and written submissions were received from Mr Scally and Mr Song. Both Mr Andrews and Ms Fearon made brief oral submissions. Photographs, plans and other documents were also tabled and these are all contained in the Tribunal file where they are available for perusal. I do not intend to repeat every matter raised at the hearing. I will concentrate on what I consider to be the major issues and deal with them in brief.
Having considered the submissions, the evidence, the result of cross examination, planning scheme provisions and the relevant issues of the Planning and Environment Act, I have come to the conclusion that a permit should issue subject to conditions as discussed at the hearing. I make these findings having given consideration to the strategic basis of the Responsible Authority's submission that included the Whitehorse Economic Development Strategies of 2007 to 2011 and 2008 to 2013, together with Mr Song's submissions and Mr Tesdorph's detailed evidence of a strategic nature.
I also note that there have been a number of previous Tribunal decisions in Whitehorse and other municipalities on places of assembly and the like. In one case the Responsible Authority issued a permit for a large church in an Industrial zone and in all three the Tribunal either upheld the Council's decision in that case or overturned it in the two other cases tabled. The first of these decisions by Member Eccles in Mailing v Whitehorse CC [2008] VCAT 1003 (6 June 2008) where the Tribunal, in overturning the Responsible Authority's decision for a gymnasium at 263 Middleborough Road, Box Hill South stated:

There is no evidence before me that suggests that there is a shortage of land available for industrial and related uses in the City of Whitehorse as a whole, or in this particular estate. Indeed on the basis of photographs of site advertisements presented by Mr Townsend, it would seem that a significant number of industrial warehouse buildings in the estate are vacant and available for lease.

In Dingli v Hobsons Bay CC [2006] VCAT 1876 (14 September 2006) Member Wilson, in dealing with an application for a dancing school and musical studio at 20-24 Tennyson Street, Williamstown North stated:

Clear evidence of alienation of the Industrial zoned land in this area would result in a supply shortage of such land has not been presented to me.

She also stated that the use would be suitable in an activity centre and I acknowledge that the State and Local policy would support such locations with its obvious advantage of proximity to other community facilities and public transport. Following on she acknowledged that there would be difficulty in obtaining parking, physical space. Parking physical space is not always possible to supply or practical to do so.
In application P3419/2002 Christian City Church (Victoria) Inc v Whitehorse CC, Bennie Borenstein and Others, Member O'Leary, in his decision in which he granted a permit for a church that had been the subject of a notice of decision to grant a permit by the Responsible Authority, referred to planning policy and submissions of the objectors in that decision when he said:

The Tribunal is satisfied that the Responsible Authority was correct to allow the proposed use in this particular location. If anything, under Clause 21.05 highlights the difficulty that uses, such as large churches, may experience in seeking permits to develop in established residential areas, particularly having regard to the policy direction which seeks to protect the amenity of such established areas.

These decisions lead me to believe that such issues that were highlighted by the Responsible Authority in this decision were also present in those. There is no doubt that a church of this nature could not possibly establish in a major or even minor activity centre in business type zones and in residential areas because of firstly cost of land and facilities and secondly amenity of residential zones. There is also, as Mr Tesdorph pointed out, a history now of many churches, mosques and temples locating in industrial zones. In reality, an Industrial 3 zone is probably a good one to use.
I note, as highlighted by Mr Scally, that there are already a number of non-industrial type uses established in this immediate neighbourhood including retailing type activities. If there is a shortage of industrial land for industrial purposes, one would think that the Responsible Authority would be on its guard against any such intrusions into the zone.
A very vexed question here is the issue of parking and traffic. I note from the submissions of both Mr Andrews and Ms Fearon, together with the photographs tabled by the parties, that parking is at a premium along Tudor Street during the weekdays and sometimes at weekends. Most of it seems to be used by employees of the industries to the south. This situation is exacerbated by a large, long loading bay along the frontage of the subject site on Ireland Street that is operational seven days a week and the fact that there is no parking in large parts of Ireland Street. I view this as being the main issue that needs to be appropriately dealt with.
It seems that the parking on Tudor Street is untimed and that there is no resident parking permit system in operation. I was told that the church has already made some effort to obtain off street parking elsewhere and that there is plenty of parking a short distance away from the site through the industrial area to the south and on Highbury Road. I deemed it incumbent upon the church to obtain off street parking as close as possible to the south for use on Sundays, when most industrial businesses are not operating. When there is a necessity to have a funeral or a wedding then parking may be exacerbated through the area during weekdays, however, these occasions are usually of only short duration and parking would just have to be found wherever for people wishing to visit the church on those occasions.
As discussed at the hearing, the church has made every effort to ensure that its paritioners do not park on the residential side of Tudor Street, particularly during Sundays because that is probably one of the greater incursions into the amenity of the residents there who are confronted with vehicles from the industrial side every other day of the week. Signs and other encouragement may be required to assist in maintaining amenity. Also all attendees on foot should be directed to enter via the main door on Ireland Street.
I also believe it is incumbent upon the Council to give the residents some relief by timing parking during the week and providing for resident parking permits with extra permits for visitors, particularly on Sundays. It would also be of benefit if the Responsible Authority timed the loading bay on Ireland Street in such a way that it would be available for normal parking outside of business hours and at the weekends. This is reasonable because the church actually owns the attached industrial buildings to the immediate south of where it is to establish.
In relation to noise, this is normally policed through the EPA's SEPPs. Apart from music and singing, I do not believe that participants in the church services would otherwise create issues for the residents. Appropriately timed hours of operation as expressed in the without prejudice conditions should overcome any issues here. That in my view covers what I believe to be the issues needed to be addressed. A permit will issue subject to conditions. Apart from the conditions that I discussed with the parties, I have reduced the amenity condition because issues such as dust, vermin, etc do not normally apply to a church building.

The permit must contain the following conditions:

The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without further written consent of the Responsible Authority. The endorsed plans to be amended to replace 150 persons with 100.
Once the use is commenced it shall only be used for the above purpose, to the satisfaction of the Responsible Authority.
The use may operate only between the hours of:

Monday, Tuesday, Thursday and Saturday 9.00am to 5.00pm

Not more than 30 persons on all days but Sunday when a maximum of 100 persons shall be present on the premises at any one time, excepting funerals, weddings and the like.
No form of public address system shall be installed so as to be audible from outside the building.
The use and development permitted must provide at least 17 car parking spaces on site. The applicant shall make every endeavour to arrange for parking of excess vehicles on nearby premises.
Parking areas and access lanes must be kept available for these purposes at all times and attendant(s) shall be available on Sundays and major services to manage parking and access and pedestrian movements.
The applicant shall prepare a parking management plan to incorporate the requirements of conditions 6 and 7. This plan should seek to encourage the utilization of the on-site parking spaces, as well as on-street car spaces along non-residential frontages, and include measures/actions such as:
- (a) The provision of a parking attendant at the entry to the main car park who advises motorists of on-site parking vacancies, directs pedestrian movements at the entry, and places an appropriate sign at the vehicular entry when the car park is fully occupied.
- (b) The preparation of a plan which outlines that the tandem parking spaces should be used solely by church staff.
- (c) The preparation of a leaflet that is provided to all visitors to the Church which strongly encourages motorists to park on-site or along non-residential frontages, and to depart the site immediately upon conclusion of the service.
- (d) Signs on site to request parishioners to respect neighbour's amenity and street parking usage.
- (e) Direct overflow parking to other streets and/or off street parking areas.
- (f) Direct pedestrians to enter by the main entry or Ireland Street.
- (g) Provide for bicycle parking on site.
The Responsible Authority must be satisfied that off street parking is available elsewhere from time to time.
The amenity of the area shall not be detrimentally affected by the use or development, through:
- (a) Transportation of materials, goods or commodities to or from the land,
- (b) Appearance of any building, works or materials,
- (c) Emission of noise, artificial light and vibration.
- (d) In any other way.
All external lights must be of a limited intensity to ensure no nuisance is caused to adjoining or nearby residents and must be provided with approved baffles, so that no direct light or glare is emitted outside the site.
This permit will expire if one of the following circumstances applies:
- (a) the development and use is not commenced within two (2) years from the date of issue of this permit;
- (b) the development is not completed within four (4) years from the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Melbourne Sae Soon Church Inc v Whitehorse CC [2009] VCAT 1698

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Melbourne Sae Soon Church Inc v Whitehorse CC [2009] VCAT 1698 (19 August 2009)

Parties