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[2001] VCAT 866
appellant. The application for review was granted, the responsible authority's decision was set aside, and the Tribunal ordered that no permit issue.
No linked legislation citations have been extracted yet.
The Tribunal stopped a permit for a counselling and support service in an existing house. It did not do so because it considered the service a prohibited office: it treated the main use as a medical centre. Nor did it refuse solely because the site was in a residential area. The decisive concerns were the effect on the closely adjoining southern dwelling and the proposed parking. The Tribunal considered the front-yard parking inappropriate, could not confirm that nearby parking would be available, and found that the service's activity would affect the neighbour more than ordinary residential use. It therefore set aside the Council's permit decision and ordered that no permit issue.
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In Nepophytou and Ors v Whitehorse [2001] VCAT 866, neighbouring residents applied under section 82 of the to review Whitehorse City Council's decision to grant a permit. The permit applicant, Robinson Concepts Pty Ltd, proposed to use an existing Federation-style dwelling at 12 Court Street, Box Hill, for the Anxiety Recovery Centre of Victoria.
The proposal included face-to-face counselling, telephone counselling, administration, a resource library and meetings. The premises were to operate from 9 am to 6 pm, with evening meetings up to three times a month. Five parking spaces were proposed: one in the existing garage, two along the southern boundary and two in the front setback parallel to the street. The site was in the Residential 1 Zone, where the scheme listed a medical centre as a discretionary use and an office other than a medical centre as prohibited.
The review applicants raised concerns about the residential setting, the area's character, traffic and effects on neighbours. The Tribunal's decision did not turn on the area's asserted heritage character. It found no Heritage Overlay applied and said that heritage-based objections were irrelevant to this proposal, which involved no significant external alteration beyond a small sign ([2]).
The Tribunal granted the review, set aside the Council's decision and ordered that no permit issue ([12]). It explained at the outset that its decision rested on the impacts on the southern abutting property and the unsuitability of parking proposed in the front setback ([1]).
The Tribunal's analysis addressed four connected matters: use characterisation, local policy, parking and amenity. It expressly said that it was not strictly necessary to decide whether the use was a medical centre or an office, because the outcome rested on amenity and parking ([1]). That distinction is important when identifying the essential reasoning from other findings.
For use characterisation, the Tribunal considered the work carried out by staff rather than trying to allocate a dominant use by floorspace or turnover. It noted that spaces could serve different functions at different times and considered those measures unhelpful ([6]). On the evidence, four of six equivalent full-time staff would be occupied with face-to-face counselling and associated administrative support; one would staff the telephone helpline; and one would carry out administration for the organisation as a whole. It therefore found that the primary use was a medical centre, with the remaining activities ancillary ([6]). The scheme's definition of medical centre expressly included counselling to outpatients, while its office definition covered administration and professional or other business activity ([5]).
The Tribunal then considered the local planning policy. Clause 22.01 discouraged non-residential uses in residential areas and said such uses, apart from a home office, should be on a main road or corner site. The subject land was neither ([8]). The Tribunal treated those criteria as policy, not mandatory requirements. It accepted evidence that the proposed service's clients required calm surroundings and anonymity, and distinguished the service from an ordinary medical centre with potentially higher patient throughput. It concluded that local policy did not justify refusing this proposal ([7]-[8]).
Parking formed a material part of the decision. The scheme's stated rate was five spaces per practitioner, although that requirement could be reduced by permit. The Tribunal accepted that the five-spaces-per-practitioner rate was not appropriate for hour-long counselling sessions, as it had been derived principally for medical practitioners whose consultations were shorter. It noted a public car park opposite and a church car park nearby ([9]). However, it did not accept the two front-setback spaces as appropriate in a residential streetscape ([9]). If those two spaces were removed, the Tribunal estimated a shortfall of at least five spaces, even using a generous estimate of demand. It could not establish that the public and church car parks would be readily available: the parking report's author was not called, and the limited survey data showed 23 of 26 church spaces occupied at 11 am on one day ([10]). The Tribunal therefore regarded the evidence as insufficient to establish that off-site parking would resolve the shortfall.
The Tribunal's most significant concern was amenity for the dwelling to the south. It described the close physical relationship between the houses, the slope and the positioning of windows and verandahs, and noted the difficulty of screening without worsening light conditions in the neighbouring dwelling ([3]). It considered possible mitigation, including translucent glass and restricting the side verandah to staff, but found that these steps would not eliminate the impact ([11]). In the Tribunal's view, operating hours and evening meetings would increase noise; staff use of the verandah could produce more noise and overlooking than household use; vehicle movements, including at night, would be greater; and use of the backyard by staff and possibly clients could increase overlooking ([11]). Comparing the proposal with residential use, it found a significantly greater amenity impact and allowed the review ([11]-[12]).
The decision records the planning controls and scheme provisions applied in this particular review. Before the Tribunal's decision, the Council had granted a permit, but the Tribunal's order set that decision aside and directed that no permit issue. The judgment does not amend the Whitehorse Planning Scheme or establish that every counselling service in a residential zone should be treated in the same way.
The scheme provisions described in the reasons distinguished a discretionary medical centre from a prohibited office other than a medical centre in the Residential 1 Zone ([5]). The Tribunal's approach to the proposed service was to identify its primary activity by examining what staff would actually do, then treat other activities as ancillary where appropriate ([6]). The decision also records that Clause 22.01 was a policy discouraging non-residential uses in residential areas, rather than a list of mandatory siting conditions ([8]). Parking requirements could be reduced by permit under Clause 52.06-6, but the Tribunal still examined the proposed layout and the evidence of parking availability ([9]-[10]).
The decision's practical effect was to deny this permit application on the facts and evidence before the Tribunal. It is not a general finding that the use categorisation, local policy or parking outcome would be identical on a different site. In particular, the reasons emphasise the unusual physical relationship with the southern neighbour, the front-setback design, and the limited evidence about off-site parking ([3], [9]-[11]). The judgment itself does not state a general legal test for all residential amenity disputes; it explains the comparison the Member considered appropriate in these circumstances ([11]).
At [1], the Member says the case was decided on “the amenity impacts of the proposal on the abutting property to the south and the unsuitability of the car parking proposed in the front setback”. In plain English, the use-category debate was not the reason the permit failed. The decisive matters were effects on the neighbour and the parking layout.
At [6], the Member says that “the primary use is ‘medical centre’ and that the other activities proposed on site are ancillary uses”. That means counselling was treated as the central activity, with administration and other supporting functions subordinate to it. The reasoning relied on staff tasks and the evidence about the time devoted to counselling, not on floor area or turnover.
At [8], the Member says Clause 22.01 was “a policy, not a set of mandatory requirements”. In context, this means that being neither on a main road nor a corner site did not automatically resolve the application. The Tribunal still considered whether the proposal's particular characteristics justified a different application of the policy.
At [10], the Member explains that the report author was not called and that the Tribunal therefore could not establish whether parking was readily available as claimed. In plain English, the Tribunal was not prepared to treat nearby car parks as a proven solution based on the evidence then before it. The single church-car-park survey also showed high occupancy at the recorded time.
At [11], the Member identifies the comparison used for amenity: whether the proposal would have a “significantly greater impact” than use of the premises as a dwelling. The Member's conclusion was based on the combined effects of noise, overlooking and vehicle movements, including those associated with evening use. It was a fact-specific assessment of the arrangement of these properties, not simply a comparison between commercial and residential uses in the abstract.
The judgment is most relevant as a point of comparison where a planning dispute concerns a non-residential use in an established residential area and there is a closely adjoining dwelling affected by the proposed activity. The features that mattered here included the 4.5-metre separation described between the relevant walls, the slope, the orientation and proximity of windows, the side verandah, and the difficulties of screening without affecting light ([3], [11]).
It may also be relevant where a proposed service combines professional counselling with organisational administration. The Tribunal assessed the main use through evidence about the actual tasks and staff allocation, rather than assuming that an administrative base made the use an office ([4]-[6]). The case does not establish that all counselling or community-service premises are medical centres; its conclusion followed the scheme definitions and evidence in this proceeding.
The parking discussion may be pertinent where a proposal relies on reduced on-site parking, front-setback spaces or nearby public and institutional car parks. The decision shows the importance the Tribunal placed on the suitability of parking in the streetscape and on evidence supporting claimed off-site capacity ([9]-[10]). It does not establish that public or church parking can never be relied on. The judgment's point is narrower: in this case, the evidence did not satisfy the Member that such parking was readily available.
Finally, the decision may assist in understanding how the Tribunal approached a local policy expressed as a general siting preference. It considered the policy alongside the particular function and circumstances of the proposed use, rather than treating the main-road or corner-site wording as an inflexible precondition ([7]-[8]).
The supplied judgment identifies three earlier decisions in its discussion of use characterisation: Cascone v City of Whittlesea (1993) 11 AATR 175, which the Member says he considered, and Convivial Company Pty Ltd v City of St Kilda (1991) 7 AATR 346 and Northcote Wholesalers v City of Northcote (1994) 13 AATR 175, which he cites when discussing methods for identifying primary and ancillary uses ([6]).
The text supplied here contains no later decisions citing or applying Nepophytou, so the subsequent treatment of this case cannot be determined from this source. It would be unsafe to infer from the judgment alone whether later courts or tribunals followed, distinguished or otherwise treated it. The decision can be described on the present record as a VCAT determination by Member Des Eccles, with reasons tied to the particular planning controls, evidence and site relationship before him.
The judgment does not resolve how the primary-use analysis would apply where the balance of counselling, telephone support and organisational administration differed materially from the staffing allocation described here. It also does not set out a numerical threshold at which administration becomes the primary activity, nor does it say that staff numbers alone always determine use characterisation. Its reasoning reflects the evidence available and the conclusion that staffing tasks were the realistic measure in this instance ([6]).
The decision does not define the evidence needed to establish that nearby parking is available in other proceedings. Here, the report author was not called, and the survey evidence was limited to one day and one time ([10]). The judgment therefore does not specify what survey period, occupancy rate or other material would be sufficient in a different case.
Nor does it decide how the amenity comparison should operate where the adjoining property has a different layout, more effective screening, greater separation, or a different pattern of activity. The comparison with residential use was expressly framed for “the particular circumstances” of these properties ([11]). The reasons also leave open what outcome might have followed if the proposed verandah, hours, evening meetings, backyard use or parking arrangement had been different.
The judgment's own account is limited to the permit-review record. It does not supply subsequent authority or a broader history of amendments to the planning scheme. Those matters would require sources beyond this decision.
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The Application for Review is granted. The order of the Tribunal is that no permit issue.
Mr M Donovan, Town Planner, Whitehorse City Council
Ms M Quigley of Counsel, instructed by Mulcahy, Mendelson and Round, who called evidence from Mr G Neophytou and from Ms J Katz, Town Planning Consultant
Mr B Robinson of Robinson Concepts Pty Ltd, who called evidence from Ms K I'Anson, Director, Anxiety Recovery Centre Victoria
Pursuant to section 82 of the Planning and Environment Act, application for review of a decision by the responsible authority to grant a permit.
The proposal is to use an existing Federation style house for the purposes of a medical centre to operate from 9 am to 6 pm. It is also proposed that meetings be held at the premises in the evenings up to three times per month. Five on-site car parking spaces are proposed (one in the existing garage, two along the southern boundary and two in the front setback parallel to the street).
The site is located on the east side of Court Street, approximately 150 metres north of Whitehorse Road. It has a frontage to Court Street of 15.1 metres, a depth of 38.8 metres and an area of 586 square metres. Immediately to the north is a church and church hall. The brick wall of the hall abuts the northern boundary and is some 7 metres high. The dwelling on the land is set back approximately 1 metre from this wall. Abutting the site to the south is a detached dwelling set back approximately 1 metre from the common boundary. The separation distance between the northern wall of this dwelling and the southern wall of the dwelling on the subject site is approximately 4.5 metres.
The subject site falls by some 3 metres from its northwestern corner to its southwestern corner, the steepest gradient being near its southern boundary. On the abutting property the southern section of the dwelling on that site is set down into the slope. The boundary fence opposite the northeastern corner of this house extends only to chest height of a person standing on the subject land.
The land is in the Residential 1 Zone. A "medical centre" is Section 2 use in the zone. The business identification sign proposed for the front of the dwelling also requires a permit pursuant to Clause 52.05 of the Whitehorse Planning Scheme.
It is an inappropriate use in a purely residential area.
It is inappropriate to allow the commercial use of this property, the Anxiety Disorder Foundation is to establish the Head Office Administration at this location.
This proposal will have an adverse affect on the unique historical area comprising Court Street, Watts Street, Kangerong Road and Thames Street (within this precinct).
It will increase vehicular traffic in Court Street and surrounding streets.
This proposal will affect the lifestyles of residents in the area (as indicated above).
The residents who live adjacent to the property will suffer considerable detriment.
The Application for Review was lodged by Mr Neophytou and appended to it was a petition with 31 signatures which stated that "We the undersigned seek review of the above decision by the City of Whitehorse. We further authorise Mr George Neophytou of 38 Court Street, Box Hill, Victoria 3128 to act as our representative." Ms Quigley, who represented all these signatories, including Mr Neophytou, made application for the signatories, including Mr Neohpytou, to be "reinstated" as parties. There was no objection from the responsible authority or the permit applicant. I ordered accordingly.
Mr Robinson applied to substitute an amended plan for the plan accompanying the permit application. The amended plan, labelled "room uses revised 9-5-01", had not been previously circulated. The amendments shown were essentially reallocation of functions to the existing rooms in the dwelling, the most important of which is that the entrance for clients is via the steps and door at the front, rather than via the verandah and door on the southern side of the building. There being no objection from the other parties, I ordered accordingly.
1. In this paragraph I outline the structure I have followed in setting out the reasons for my decision. I have decided this case on the basis of the amenity impacts of the proposal on the abutting property to the south and the unsuitability of the car parking proposed in the front setback of the subject land. Therefore it is, strictly speaking, not necessary for me to determine whether the proposed use is an "office" and therefore prohibited in the Residential 1 zone (as submitted by Ms Quigley). However, I have considered the tests for categorising uses and for the reasons set out below I have determined that, on balance, the proposal is for a "medical centre" and not for an "office". I have then turned to the issue of local planning policy and decided that the proposal does not fly in the face of local policy and so should not be rejected on that ground. I have determined that because of the particular nature of the proposed use there is little justification for applying the relevant local planning policies. I have then turned to the amenity impacts and the proposed car parking in the front setback and have decided that the amenity impacts on the abutting property, on balance, would be unreasonable and that the proposed parking in the front setback is not appropriate and have therefore granted the Application for Review.
2. Before setting out in greater detail the reasons for my decision I wish to record some observations about this case which may prove useful for the parties. Whilst the local residents value the character of their neighbourhood and the nature of the housing stock found within it, it must be emphasised that the Whitehorse Planning Scheme does not recognise that it is a neighbourhood or precinct with any significant heritage value. No Heritage Overlays apply to the area or to particular buildings within it. The existing building on the site is an attractive timber Federation style house, but it is not an outstanding example of its type, any more than are the dwellings nearby, in my opinion, outstanding examples of their type. That is not to say that this is not an attractive street, but arguments based on heritage concerns in this instance are irrelevant, and even more so when one considers that this proposal does not involve any external alteration to or modification of the existing dwelling on the site, save for a relatively small and unobtrusive sign which, in my opinion would have no significant or undesirable impact on the dwelling or on the streetscape.
3. The dwelling on the subject site may not be as attractive for residential use as might first appear, and this may well explain why money has not been invested in it in recent years to maintain it in good condition. There are four constraints or negative factors which apply. The first is noise from the abutting hall (very clearly evident when I made my inspection on a Sunday morning). The second is overshadowing of the northern side of the property and most of the rear and front gardens for considerable periods of time during the day, caused by the 7 metre high wall on the common boundary. The third is that parking at the rear of the site is not possible or feasible, because the laneway at the rear is not wide enough to allow anything other than a very small vehicle to negotiate the 90 degree turn in it, and the slope of the land and setting down of the abutting property to the south would necessitate extensive engineering works to allow vehicles to enter the back yard via the side setback along the southern side. The fourth is the location of the north facing habitable room windows of the abutting property to the south, which by virtue of their proximity to the common boundary, the slope of the subject land and the setting down of the abutting dwelling on its site are overlooked by the south facing windows and side verandah and are, in turn, partly overlooked by them. Trellis on the common boundary or screening by intervening vegetation on either property would exacerbate an existing problem of poor light penetration into the abutting dwelling.
4. I now turn to the issue of the nature of the proposed use. Ms Quigly submitted that the proposal was for an "office", that is for the Head Office of the organisation as whole, rather than for a "medical centre". The amended plan shows a Directors Office, a Counseling/Consulting Room, a Group Room, a Kitchen, an Administration/Helpline Room, a Reception/Resource Library/Waiting Room and a small Quiet Area. The evidence of Ms I'Anson was that the premises would be used to provide telephone counseling and face to face counseling of people suffering from anxiety, meetings, and an administrative base for the 20 or so "branches" of the Anxiety Recovery Centre of Victoria. Her evidence was that at any one time a maximum of 6 equivalent full time staff would be in attendance. As Director she spends less than half her time on administration, with the balance of her time devoted as a psychologist to counseling. A maximum of 3 other counselor/psychologists would be in attendance at any one time, plus a trained telephone counselor staffing the helpline. Lastly, there would be an administrative support person staffing the front office/reception/library resource/waiting room areas. Of the 6 equivalent full time staff, the equivalent of 3.5 would be devoted to face to face counseling. Some significant proportion (and perhaps even more than 50%) of the time spent by the person in the front office would be devoted to supporting the face to face counseling conducted on the premises.
5. The definition of "medical centre" in the Planning Scheme is as follows:
Land used to provide health services (including preventative care, diagnosis, medical and surgical treatment and counseling) to outpatients only.
Land used for administration, or clerical, technical, professional or other like business activity. No good or material intended for manufacture, sale or hire may be stored on the land. Other than electoral office and medical centre, it does not include any other defined use.
"Medical centre" is specifically listed as a Section 2 (i.e. discretionary) use in the Residential 1 zone. "Office (other than a Medical centre)" is specifically listed as a Section 3 (i.e. prohibited) use in this zone.
6. Does the proposed use fall within the definition of medical centre? Having considered Cascone v City of Whittlesea (1993) 11 AATR 175, I have concluded that it does, taking into account the methods for determining promary and ancillary uses enunciated in a number of other cases, such as Convivial Company Pty Ltd v City of St Kilda (1991) 7 AATR 346 and Northcote Wholesalers v City of Northcote (1994) 13 AATR 175. The notion of using sales or turnover to establish dominant and ancillary uses is not applicable in this instance. Neither am I assisted a great deal by consideration of the floorspace areas allocated to various functions within the building, as spaces can be used for different functions at different times. The only realistic method is to consider the tasks of the persons proposed to be on the staff of the premises and on the evidence of Miss I'Anson four of the 6 equivalent full-time staff of the centre would be engaged in face to face counseling and associated administrative support, one equivalent full time person would be staffing the telephone helpline and the equivalent of another full-time staff person would be engaged in office and administrative duties directed towards supporting the Anxiety Recovery Centre of Victoria as a whole. On that basis I have concluded that the primary use is "medical centre" and that the other activities proposed on site are ancillary uses.
7. The Local Planning Policies in the Whitehorse Planning Scheme militate against the location of non-residential uses in residential areas. There is a strong policy base for refusing permit applications for medical centres and similar uses outside of the "medical precinct" surrounding the Box Hill Hospital and this policy has been upheld in various decisions of the Tribunal. I accept Ms I'Anson's evidence that medical precincts are not the most appropriate locations for facilities such as that proposed, because of the nature of the condition suffered by her clients, who require calm surroundings and a high degree of anonymity. The facility proposed is not a normal medical centre staffed by medical doctors treating a variety of conditions both physical and mental and where the volume and throughput of patients may be such as to generate a reasonably high level of movement and activity and well attended waiting rooms. I think there is a case in this instance for countenancing a location outside the "medical precinct".
8. Clause 22.01 of the Whitehorse Planning Scheme is directed towards discouraging non-residential uses from establishing in residential areas. It recognises that location in a residential area of non-residential uses may sometimes be appropriate, but states that except for a home office, non-residential uses be located abutting a main road or be on a corner site. The subject land meets neither of these criteria. This is not fatal to the proposal, given that Clause 22.01 is a policy, not a set of mandatory requirements. The nature of the proposal is such that it should be considered somewhat differently to other non-residential uses in a residential zone, such as a service station, or a convenience shop, or a convenience restaurant, or even a normal medical centre. In other words, I don't think there is a great deal of justification in insisting on a main road locations or a corner site in this instance.
9. Pursuant to Clause 52.06-6 of the Whitehorse Planning Scheme, 5 on-site car parking spaces per practitioner are required, but this may be waived or reduced via a permit. On the basis of Ms I'Anson's evidence that 3.5 equivalent full-time registered psychologists would be conducting counseling sessions in the premises, this would translate to some 18 spaces. Only 5 space are proposed. I accept that the duration of each counseling session would be in the order of one hour and therefore that the rate of 5 spaces per practitioner (which was derived essentially for application to medical practitioners whose consultations are, on the average, of much shorter duration) should not apply. I also note the public car park diagonally opposite and the church car park in close proximity to the north. The location of the two on-site spaces along the southern boundary would impose an amenity impact on the abutting property to the south, particularly if they are utilised during the evenings when the meetings proposed occur. The two spaces proposed in the front setback, parallel to the street, I do not consider acceptable, even though suitable landscaping may provide some screening of them. This is a residential area and the location of parking areas in the front of dwellings would not generally be in accord with the character of the streetscape. I note that if this were a residential proposal requiring planning permission, such a location for parking would not be seriously countenanced.
10. If these two spaces were to be removed, then the shortfall in parking, assuming that a rate of only 2.5 spaces per practitioner is appropriate, would be insufficient to accommodate the parking demands of staff, let alone clients. Even a very generous estimate suggests that the shortfall is at least 5 spaces. A parking report prepared by Hyder Consulting, submitted with the permit application, suggested that ample parking was available in Court Street, the public car park opposite and the church car park. The ready availability of parking is contested by the objectors. The person who prepared the Hyder Report was not called by Mr Robinson and so was not available for cross-examination. In these circumstances I cannot establish if parking is readily available as claimed. I am also not convinced that it is sound planning to allow the public car park, which presumably was created in response to parking demand generated by the nearby commercial areas in Whitehorse Road, to be utilised by a non-residential use in an established residential area. Nor am I convinced that parking is readily available in the church car park, as the very limited data in the Hyder report shows that at 11 am on the one day on which a survey was conducted (12th of October, 2000), 23 of the 26 spaces in this car park were occupied. I simply do not know what the rate of utilisation of this car park is on other days. As I indicated in my description of the subject site above, to all practical intents and purposes the rear of the subject site, which would otherwise provide opportunity for the parking of cars, cannot be accessed.
11. However, of greater significance, in my opinion, would be the amenity impacts of the proposal on the abutting property to the south. The relationship between the properties has been described above. Restricting access to the side verandah to staff and the utilisation of translucent glass in the south facing windows of the subject premises would reduce noise and overlooking impacts. The use of trellis above the common boundary fence is not appropriate because of its impact on the natural lighting of rooms in the abutting property. But in my opinion the relationship between the two properties poses such problems that the appropriate test in the particular circumstances which apply is whether or not the proposal would have any significantly greater impact on amenity than if the subject premises were used as a dwelling. Even with the use of translucent glass and the restriction of the verandah to staff use, it is my opinion that it would have such an impact. The proposed hours of operation and the use of the premises for evening meetings would inevitably mean a greater noise impact. The potential use of the verandah by the equivalent of 6 full-time staff would have a greater impact via noise and overlooking than the potential use of this area by people residing next door. The movement of cars on and off the site, including during the evenings, would have a greater impact than the movement of cars one might reasonably expect associated with a household. The use of the back yard by staff, and perhaps clients, would have a greater impact via overlooking than the use of this area by a household.
12. I have therefore decided to grant the application for review, set aside the decision of the responsible authority, and order that no permit issue.
Nepophytou and Ors
Whitehorse [2001] VCAT 866
The application for review was granted, the responsible authority's decision was set aside, and the Tribunal ordered that no permit issue.