Monash Gate Project Pty Ltd v Stonnington CC [2009] VCAT 367

Monash Gate Project Pty Ltd v Stonnington CC [2009] VCAT 367 - VCAT 2009 case summary — Zoe

[17]

The responsible authority was particularly concerned about the lack of local policy support for student accommodation because it was not identified as a suitable candidate site for student accommodation in its Local Policy (Clause 22.08).
It is appreciated that the responsible authority has gone to the trouble of preparing and inserting a student housing policy its planning scheme that covers a variety of issues including car parking, management and location issues. The subject site is not identified in a preferred location for student accommodation.
Similarly, the purposes of the Residential 1 Zone include:
- 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.
- In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.
Clause 11 of the State section of the Planning Scheme calls upon planning and responsible authorities to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. This is a case where a responsible authority, and therefore the Tribunal, should examine and balance the purposes of the zone and the array of State and Local planning policies relevant to the purpose of the application.
Whilst the site is not specifically identified in the Clause 22.08 of the scheme that does not necessarily mean the use is inappropriate, rather there needs to be good reason to depart from the policy. An examination of the policy intent, wording of the policy and the Decision Guidelines calls upon the responsible authority to exercise judgement on the array of issues.
Furthermore there is reference from the Panel that considered the Amendment C61 to the Stonnington Planning Scheme[4] that said:

[31]

Mr Wong was highly critical of the lack of building setbacks of the building including the boundary to boundary form at both the southern and northern interface. It is noted that the Council's urban designer who had earlier raised concerns about urban design issues, has had his issues addressed by the amending plans. This is a significant concession that seems to have been given little credence by the Council. The revised plans increase setbacks and landscaping at the most sensitive interface and the elevations moderated the relatively stark, robust form and is more consistent with the from of the proposed motel complex on the abutting site to the south-east. This will appear as a reasonable transition in build form between the large Masonic Lodge Building and the fur storey motel.
I consider the criticism of the lack front set back and the boundary to boundary form for the first two levels is overly simplistic in a context of redevelopment taking place in this neighbourhood. To apply simple Rescode standards for set backs when the adjoining and nearby buildings (or proposed buildings) will produce a different is unhelpful. For example whilst the part of the Masonic Lodge is set back further it is a higher and more prominent building. Similarly the motel complex to the southeast will have a large circular drive, Port Cochere and basement entry feature close to Dandenong Road. These are not typical building treatments in the Residential areas of East Malvern but are a form and function of the deriving from the context of the site abutting one of the busiest roads in Melbourne.
There is no adverse amenity impact on any residents by the building setbacks, rather the building is taking advantage of its location and site context to maximise the extent of development appropriate for its location. Where there is a sensitive interface issue at the rear the building is set back at least 6.9 metres (or 5.6 metres) to the closest balcony abutting the right-of-way the proposal and there is opportunity for canopy tree planting to complement other planting abutting the lane.
The right-of-way itself is that of a fairly typical inner or middle ring suburb where dwellings have turn their backs on the right-of-way and there is simply high fencing and garages with roller doors facing this area.
The interface with 4 Moama Road is one where the occupants of the dwelling have made their own decisions about security and do not have a direct pedestrian or vehicle interface with the right-of-way.

[36]

I am particularly concerned about the manner in which the draft condition is prepared because it tends to address matters extraneous to the student accommodation needs. Applying a Section 173 Agreement should be to advance a planning purpose that could not otherwise be achieved through the permit. This particular permit is for use and development and there are various matters that are contained under the Section 173 heading that could just as easily be controlled through the usage permit, and in particular, the need for bona fide students to be accommodated and to control car parking spaces.
However, placing requirements on the land, such requirements for another permit in the event of the use, or parts of the use ceasing may in fact be acting contrary to the expressed provisions of the Stonnington Planning Scheme in force at that time. Alternatively, it is merely re-stating a planning scheme provision that currently exists.
During the hearing I questioned Mr Wong whether there was any evidence of problems with current student accommodation in Stonnington but he was unable to provide any information about this issue. With the absence of any evidence of a problem and the doubt about it efficacy I am reluctant to apply it. I am prepared to impose conditions concerning accommodation for students only and the allocation or leasing out car spaces to students only limits.
This issue may have had more validity in a "development" application or in a case where an existing building is being converted to student accommodation, such as an old nursing home where the proposal may be seen as more of a transitional situation. However, this application is for a purpose built building with specific parking and amenity issues related to the form of accommodation.
I have addressed refuse collection for handicapped persons in the management plan. Other conditions concerning overlooking and reference to Standard A 15 are irrelevant or unjustified having regard to the setback from the residential interface and adjoining non residential uses.

[38]

Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans substituted at VCAT Hearing P2735/2008 but modified to show:
- (a) A schedule of materials, external finishes and colours.
- (b) The dimensions and layout of parking bays, access, access gradients, sightlines, location of columns such that they are generally in accordance with the Planning Scheme.
- (c) A landscaping plan in accordance with Condition 3.
- (d) Location of mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units.
- (e) The alteration of ramp grades in accordance with diagram tabled by Mr Fairlie of Ratio Consultants-version 3.10 at VCAT Hearing P2735/2008
- (f) Provision of direct light access to the terrace on Apartment 17(unless otherwise allowed by the responsible authority the opening should be at least 5 square metres).
The layout of the building and the use, including the purpose of each room must mot be altered without the written consent of the responsible authority
The use and development approved by this permit must only be used for the purposes of student accommodation unless other wise approved in writing by the responsible authority.
No person may reside in the student housing unless that person is a full time tertiary student or resides there in a supervisory management or caretaker capacity.
The car spaces shown on the endorsed plans must be associated with the use of the building allowed by this permit and not subdivided or sold separate from the building for any reason without the prior written consent of the Responsible Authority
Before the development starts, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must show:
- (a) Planting of two advanced canopy trees in the rear setback.
- (b) Details of surface finishes of pathways and driveways.
- (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
- (d) Landscaping and planting within all open areas of the site.
Before the use starts, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Concurrent with endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include (as applicable):
- (a) Dimensions of waste areas
- (b) The number of bins to be provided
- (c) Method of waste and recyclables collection
- (d) Hours of waste and recyclables collection
- (e) Strategies for how the generation of waste and recyclables from the development will be minimised

[40]

Prior to the commencement of the use hereby approved, the operator of the student accommodation facility must submit a management plans to the satisfaction of the Responsible Authority. When approved, the management plan will be endorsed and will then form part of the permit. The management plan must establish a set of house rules for the development, to ensure:
- (a) There is a continuous presence of a manager and/or lead tenant (permanently residing on the site) for the control and supervision of the students.
- (b) The use does not cause injury to or prejudicially affect the amenity of the locality by reason of the emission of noise.
- (c) All garbage collection from the development be managed and conducted so as not to prejudicially affect the amenity of the locality by reason of appearance. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site.
- (d) A contact person and their telephone number must be displayed at the student accommodation facility's frontage at all times. The displayed telephone number must be contactable at all times (otherwise call forwarded to another appropriate person) to enable a prompt response to any operational complaints which may arise that require immediate attention, such as noise emissions or other issues of non-compliance with this permit.
- (e) Permanent display of the management plan in the ground floor common area.
- (f) House rules regarding the occupancy and behaviour of students and visitors and grievance procedures.
- (g) A support framework for students which ensure that students have a knowledge of and access to care services including health, counselling and cultural contacts.
- (h) Provision of information on local public transport and to encourage walking to facilities within walking distance.
- (i) A log book of student car parking ownership and evidence of part time or full time tertiary student status.
- (j) Management and emergency procedures and evacuation procedures.
- (k) Maintenance and cleaning schedules.
- (l) Waste management for persons with disabilities (including basement storage)who are unable to utilize the basement ramp to access the garbage storage facility.
The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
Not more than 66 people shall reside on the premises at any one time.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
The level of the footpath in Dandenong Road and the right of way to the rear must not be lowered or altered in any way to facilitate access to the site.
External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must only be conducted between the hours of 7am and 8pm.

At a glance

Court

Decision date

Source

Judgment (49 paragraphs)

Monash Gate Project Pty Ltd v Stonnington CC [2009] VCAT 367 (6 March 2009)

Parties