O'Connor Assets Pty Ltd v Greater Geelong CC [2014] VCAT 69

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 Mr Alan Flaherty and Mr Tim Waller are joined as parties to this proceeding.
2. The decision of the responsible authority in relation to permit application no. 1121/2012 is set aside.
3. A permit is granted in relation to land at 1-5 Summit Avenue, Belmont. The permit will allow
   • Use of land within a Residential 3 Zone for a residential building (Supported Residential Building)

generally in accordance with the endorsed plans and subject to the conditions contained in Appendix A to these reasons.

• Mr Marco Negri, town planner, Contour Consultants
• Mr Henry Turnbull, traffic engineer, The Traffix Group

Mr Tim Waller, Mr Peter Wright, Ms Liz Flaherty, Mr Alan Flaherty, in person

To use an existing building for a residential building. The building would be a Supported Residential Services facility that would accommodate 50 beds for 49 residents and a manager.

Sixteen car parking spaces would be provided, six for staff and ten for residents.

Application under section 77 of the Planning and Environment Act 1987

Clause 32.06-1 (to use land for a residential building on a lot in R3Z)

Clause 52.06-5 (parking for a residential building to the satisfaction of the responsible authority)

Clauses 10.04, 15.01, 16.01, 16.02, 18.02, 19.02, 21.03, 21.04, 21.05, 21.06, 21.07, 22.01, 52.06 and 65

The review site comprises two lots that together form an L shaped lot located between Summit Avenue and Davis Street, Belmont. The site has a frontage to Summit Avenue of 50.29 metres and a frontage to Davis Street of 16.76 metres. It has an overall depth of 85.34 metres and an area of 2861 square metres.

The land contains a building that has been used for an aged care facility with 40 residential rooms and associated common rooms. Access to the site and ten car parking spaces are provided from Summit Avenue. A further six car parking spaces and access are provided to Davis Street.

The land is flat and is not constrained by any special features or encumbrances.

The land is within an established residential area and adjoining and nearby land is used for dwellings, except for the adjoining land to the south west that was previously used a vehicle repair premises, but is now unused.

I inspected the site and its environs on 21 January 2014. The parties did not accompany the inspection.

1. It is proposed to use a former aged care facility for a residential building to accommodate up to 49 residents and one manager. The facility would be classified as a Supported Residential Services (SRS) facility under its registration with the Department of Health. It is to provide independent living and support services for people with physical or intellectual disabilities. No works are proposed to the building.
2. In June 2013, Greater Geelong City Council determined to refuse to grant a planning permit for the proposal. The Council considers the development:
   • fails to comply with clause 22.01 as the use is incompatible with its surrounds and it would have a detrimental impact on the amenity of the community
   • does not provide adequate outdoor recreation space for residents that would adversely affect the amenity of the wider neighbourhood
   • fails to provide adequate car parking
   • fails to provide adequate internal infrastructure
   • would be excessive, contrary to the character of the neighbourhood and would be unable to provide adequate landscaping.
3. Seventy-one objections were lodged in response to public notification during the application process. Eight people are parties to this review. They say the residential building has been operating for several years. In that time, the facility has failed to provide adequate supervision or recreation for residents. They say their amenity has been adversely affected by the behaviours of the residents. They also say that the on-site car parking would be inadequate if many residents use cars.
4. The applicant contests these grounds of refusal. It submits that the proposed use is appropriate in a residential zone and in this particular location. It says adequate care and supervision, recreation and car parking facilities are provided and the proposed use would not adversely affect the amenity of its neighbours.
5. The key issues that I must determine in this matter are:
   • Would the location be appropriate for the proposed use?
   • Would the proposed use adversely affect the amenity of its neighbours?
   • Would the facility's residents enjoy acceptable amenity?
6. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Greater Geelong Planning Scheme, I have decided to set aside the decision of the responsible authority and direct that a permit be granted. My reasons follow.

1. Before I turn to the issues that are central to this review, I should make clear the proposal before me.
2. It is proposed to use a former aged care facility with 39 rooms for a residential building (Supported Residential Services). The proposal is to accommodate up to 49 residents. Twenty-nine rooms would accommodate a single person and up to ten rooms could each accommodate two people. One bedroom would be allocated to a night manager.
3. The Supported Residential Services (SRS) facility would operate under the provisions of the Supported Residential Services (Proprietors) Act 2010 and Supported Residential Services Regulations 2012. The legislative framework is complemented by the Supported Residential Services design guidelines (August 2013). Tother these documents set out obligations of owner and operators. They also prescribe the operational requirements for a facility including requirements for resident care plans, indoor and outdoor recreation, dining facilities and details of bedrooms and bathrooms.
4. Pursuant to the Supported Residential Services (Proprietors) Act 2010, an SRS is defined as:

A premises where accommodation and personal support are privately provided or offered to residents for a fee or reward, whether or not registered under this act.

1. The definition excludes various accommodation types such as retirement village, secure welfare or out of home care for youth or accommodation supported by payments by the Commonwealth Government.
2. A status report on SRS accommodation describes their residents as "amongst Victoria's most vulnerable and disadvantaged citizens" and acknowledges that they accommodate people with mental illnesses and complex support needs[2]. Ms Marshall described an SRS as "last resort accommodation" for people at significant risk of homelessness.
3. Residents include both men and women who are generally between the ages of 20 to 50 years. Residents pay a fee to live in the facility. They are usually mobile and their access to and from the facility is not restrained. The doors are locked at 7.00pm each night, but residents can access the building after that hour.
4. The residents require supported accommodation as they usually have mental health conditions, intellectual or other disabilities, dementia or age related disabilities. They require assistance with daily living such as regular meals, medications and personal hygiene[3].
5. The SRS provides the following support to the residents:
   • interim support plan prepared within 48 hours of the resident's arrival
   • long term support plan reviewed each six months
   • three meals per day
   • basic furniture in each room including single bed, linen, wardrobe, bedside table chair and light
   • a digital television telephone and computers are available in a recreation room
   • weekly room cleaning
   • assistance with personal grooming
   • use of a bathroom
   • assistance with medication
   • on-call manager on the premises at all hours
   • use of communal recreation rooms and outdoor leisure areas.
6. The applicant advised that some residents stay for short periods and others reside there for some years. Similarly some residents make use of the communal recreation areas and others prefer to live in their own rooms.

Does the proposed use require planning permission given the previous use of the land and building for an aged care facility?

1. The respondents say that the SRS facility commenced use without planning permission and this should be a consideration in this review. The applicant says Council informed them that the facility enjoyed existing use rights under clause 63 of the scheme and no planning permission was required to commence the use. On that advice, they sought and gained their Certificate of Registration from DoH, noting that a requirement of that registration is that they have satisfied planning requirements.
2. Some time after the facility commenced operations, Council advised the applicant that they require planning permission under clause 32.06, as its was Council's view that the SRS is a change of use. The applicant has agreed to make an application for a planning permit and rely on the planning merits of the proposal. However, should the Tribunal affirm the Council's decision, it may seek a declaration from the Tribunal regarding its existing use rights.
3. I do not agree the respondents submissions that adverse weight should be given to the commencement of the use without a planning permit. Firstly I have no proceedings before me on the matter of existing use rights and the parties had not come prepared to make submissions on this matter. I therefore make no findings on whether the proposed use enjoys existing use rights. I have to confine this review to the planning merits of Council's decision to refuse to grant a permit for the proposed use.
4. In Knox CC v Tulcany Pty Ltd [2004][4] the Supreme Court determined that the fact that a use or development had commenced without planning permission should not be a factor in assessing whether a proposal complies with the planning scheme and is acceptable. The Supreme Court found that the Tribunal must consider the proposed use on its planning merits, as if it has not commenced.
5. In coming to my findings on this matter, I have given no weight to the circumstances leading to the current situation. This includes giving no weight to the conflicting advice provided by Council, any possible reward or benefit to the applicant for commencing the use without planning permission, or any financial or other consequences of refusing this application. I have considered the proposal afresh, as though it has not commenced.
6. I now turn to the planning merits of this proposal.

Would the location be appropriate for the proposed use?

1. The first matter before me is to determine whether No.1-5 Summit Avenue is an appropriate location in which to accommodate up to 49 people who need supported accommodation.
2. The site is located in an established homogeneous residential suburb that is approximately five kilometres from Geelong's central business area. Both Summit Avenue and Davis Street mainly comprise single dwellings on a lot, with consistent front setbacks, low front fences, off-street car parking and generous private open space to the rear of the dwellings.
3. The exceptions to the prevailing housing are the review site, and a former mechanical repair premises adjoining the southeast side of the review site. The former mechanical repair premises has a frontage to High Street.
4. The neighbourhood includes a range of facilities and services typically found in an established residential suburb. These facilities include:
   • a neighbourhood shopping centre with a small supermarket located five minutes walking distance on the corner of Summit Avenue and Stephen Street
   • McDonald Reserve also located to the west of Stephen Street near the above centre
   • Winter Reserve which is located seven to ten minutes walk to the east of High Street
   • Barwon Health and Leisure Link swim centre are located approximately 1 kilometre to the south
   • Belmont High Street subregional activity centre is approximately one kilometre to the north and Waurn Ponds Homemaker Centre is approximately 2.2 kilometres to the southwest.
5. The provision of public transport is particularly important given that few residents have a car. Three bus services (routes 14, 15 and 18) operate along High Street, within two minutes walking time from the facility. The services provide connections to Geelong City Centre, Deakin University and Waurn Ponds. South Geelong train station is approximately 3.7 kilometres from the site. The responsible authority and Council described the public transport services as modest, but limited in their frequency and hours of operation, particularly at night and weekends.
6. Residents of this facility have convenient access to day to day shopping, health and recreation facilities. Public transport is easily accessible to the site and provide moderate access to higher order centres and facilities elsewhere in Geelong. In my view, this location provides a level of access to facilities and services that is generally consistent with most areas in Geelong. The site is not so isolated that access to services and facilities is unduly difficult.
7. The State and local planning policy frameworks generally support the provision of a diverse range of housing types to meet the wide range of housing needs in the community. A purpose of the Residential 3 zone encourages the provision of:

Residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

1. Clause 16.01 encourages the provision of a range of the type, quality and quantity of housing to meet community needs, including social housing. The provision of housing is to be integrated with social and physical infrastructure. Higher density housing is to be located close to activity centres and public transport services. Clause 16.01-5 encourages the provision of affordable housing close to jobs, transport and services.
2. Clause 16.02 encourages the provision of crisis accommodation and community care housing in residential areas. The clause provides that a planning scheme must not prohibit or require a planning permit for a community care facility that is less than 10 rooms or 20 persons. Whilst the clause relates to accommodation that is smaller than this proposal, I think that it sets the principle that such accommodation is appropriate in all residential areas.
3. The applicant submitted that the facility provides personal support services and so can be regarded as a health care facility. Clause 19.02 encourages:

the location of health-related facilities (including acute health, aged care, disability services and community care facilities) with consideration given to demographic trends, the existing and future demand requirements and the integration of services into communities.

1. Clause 21 also provides broad support for an SRS residential building in a residential setting. The clause encourages a diversity of housing choice and improved affordability whilst protecting neighbourhood character. Clause 21.06 particularly encourages the provision of a diverse range of accommodation including affordable supported accommodation.
2. Clause 65 requires the responsible authority and on review the Tribunal to consider the orderly planning of an area and any impacts a proposal might have on the amenity of an area.
3. In general terms I am persuaded that the re-use of the former aged care facility for supported accommodation is appropriate and complies with policy. I reach this conclusion because:
   • Both State and local planning policy encourage the provision of a range of accommodation choices to meet the wide range of housing needs, particularly affordable housing.
   • The proposed use is to provide residential accommodation in an established residential area, very consistent with the prevailing uses and the zoning of the land.
   • Policy clearly encourages the provision of smaller supported accommodation facilities, consequently a larger facility may be supported subject to an assessment of the location and any impacts on the amenity of neighbours.
   • The SRS would provide people at the lower margins of the housing market with affordable accommodation in an area with established infrastructure and services.
   • In this location, residents would have relatively convenient access to a local supermarket, a large recreation reserve with multiple facilities, health facilities and modest public transport services. The level of access appears largely consistent with most other areas of Geelong.
4. Notwithstanding the above general policy support, the responsible authority relies heavily on clause 22.01 to support its refusal of this proposal. This clause guides the consideration of uses that are discretionary in residential zones and so is applicable to this proposal.
5. The objectives of clause 22.01 encourage the provision of services that are compatible with the scale and amenity of the residential area, to provide uses that serve the local community and to re-use purpose built buildings.
6. The application of the clause to this matter is limited as its specific requirements relate to non residential uses. Non residential uses are encouraged to:
   • locate in a higher order road rather than a local street
   • locate on sites with a low residential amenity
   • not adversely affect the amenity of adjoining and nearby residents
   • not generate increases in traffic, parking or deliveries that would be a significant change in traffic conditions.
7. Whilst the clause focuses on non residential uses, I consider that the proposal satisfies the intent of the clause. Some of the people who will be accommodated are Geelong residents. It is likely that their family and support networks would also be in Geelong. Their capacity to conveniently access their support network would be important to their well being[5].
8. The site is at the end of a local street, near a high order road, and so would not draw high traffic volumes into a local street. I accept that the site is not in a low amenity area, but it abuts a mechanical repair facility and is close to a main road, and so has somewhat less amenity than sites further west along the street. I consider that the proposal satisfies the location criteria set out in clause 22.01.
9. The proposal enables a purpose built facility to be re-used and so minimises the extent of change in the area.
10. The responsible authority and respondents submitted that the SRS residents behave in ways that adversely affect the amenity of the area, and so is contrary to clause 22.01. They say it would be preferable for the facility to be located closer to larger centres or to accommodate fewer people.
11. I am not persuaded by these submissions for the following reasons.
12. Firstly the matter of the preferred location of such facilities has been considered by the Tribunal which has generally found that most residential areas are appropriate locations. In 332Alma Road Pty Ltd v Glen Eira CC[6] the Tribunal found that an SRS (for aged people) was fundamentally residential in nature and therefore not out of place on residentially zoned land.
13. The Tribunal adopted a similar approach in other cases. In Drewgood Pty Ltd v Knox CC[7] the Tribunal found that a boarding house is:

an ordinary residential dwelling in ordinary streets that accommodate persons who are only able to afford rental of a room.

1. In Kupfer v Whitehorse CC[8] the Tribunal found accommodation such as this should not be restricted only to locations that are within an easy walk to an activity centre.
2. Secondly the same Tribunal also noted that the fact that an SRS was not within or close to an activity centre is not immediately fatal to the application. If that approach was consistently applied few sites could be used. This would severely constrain options to provide this type of accommodation. More significantly it would imply that shared accommodation such as aged care, boarding houses and the like are inappropriate in almost all residential neighbourhoods, which would be contrary to planning policy set out in the scheme[9].
3. I think these considerations apply to this case. There is nothing unique about Belmont that makes an SRS inappropriate. Whilst this site does not have ideal access to services and facilities, it is not entirely remote or without services. A local supermarket and parks are within walking distance and bus services are available to enable people to access services located in central Geelong. The site might be less convenient to services than a site within or on the edge of an activity centre, but it is not so remote from services and public transport that the residents of the facility are unable to buy the things or access the services they need.
4. With regard to the behaviour of residents in relation to location, I am not persuaded that this location is a factor that contributes to their behaviours. There are no factors that leads me to conclude that this location contributes to the behaviours that are the key concern of the respondents. I am not persuaded that the behaviour of SRS residents would be significantly better if they were located closer to an activity centres or a train station. If the behavioural problems are generated by mental disability and problems with substances and alcohol, it appears to me that location is a neutral or marginal influence on behaviour.
5. My final reason for concluding that this site is an acceptable location for an SRS facility relates to the site itself. It is a large site with a purpose built building. The building is ready for use, without needing significant upgrades or renovations, evidenced by the Certificate of Registration and the fact that there is no development proposal before me. The site is unconstrained by heritage, topography or vegetation, and the building does not require any renovations or additions.
6. In my view a site has no constraints and it contains an established building that is "fit for purpose" is significant. It is an opportunity that should be used unless it is clear that there are significant amenity or policy reasons to not do so. Re-using an existing building minimises the extent of change to the streetscape and to sensitive interfaces that is so often of concern to neighbours.
7. I am satisfied that this facility is appropriate in a residential area and that it is sufficiently proximate to shops and services to meet day to day needs. I am satisfied that residents would also be able to conveniently travel to higher order centres to access the services that they need on a less regular basis. I am also satisfied that the planning scheme supports making use of sites that are well located, unconstrained and able to be well utilised.
8. The above support is qualified as the use has to demonstrate that it would not impose unacceptable amenity impacts on its neighbours and it provides reasonable amenity for its residents. I turn to these matters below.

Would the proposed use adversely affect the amenity of its neighbours?

1. The responsible authority and the residents submitted that the proposal would affect their amenity in two ways. Firstly the residents submitted that the poor behaviour of some of the residents of the SRS facility has made them feel less safe in their dwellings and in their neighbourhood. Secondly they are concerned that an additional 49 residents would generate traffic and parking congestion.
2. With regard to perceived safety, the nearby residents submitted that they have experienced incidents of SRS residents rummaging through rubbish bins, urinating in their gardens and making threatening gestures. They say their general amenity and perceived safety has been diminished by the general poor upkeep of the SRS including litter, loud talking amongst the residents of the SRS and a number of SRS residents walking in the streets when and appearing to be influenced by substances. Two incidents of threatening altercations between a resident of the SRS and a resident of the neighbourhood were cited as examples of the way this facility has adversely affected the amenity of the wider area.
3. The Council and the residents submitted that too many people reside in the SRS. The facility does not have sufficient communal spaces or supervision. Their sometimes unorthodox behaviour and appearance can unsettle the nearby residents. The Council and respondents submitted that the number of SRS residents should be reduced and the communal open space and supervision increased.
4. The residents accepted that the number of disturbing incidents had declined significantly in the past six months. No specific reasons for the perceived improvement were advanced, except for some speculation that it has been associated with this review. I note the perceived improvement, but I do not draw any conclusions about its basis.
5. Little quantitative information was provided regarding behaviour and problems. No diaries were provided that documented the frequency or severity of incidents. The residents described the problems in very general terms. From their descriptions I have concluded that unsettling incidents have occurred, they have been infrequent and they have become less regular in recent months.
6. Ms Marshall advised that in the past 12 months there were three visits by police related to behaviour and eight ambulance callouts. This seems to me to be very low for a facility accommodating nearly forty people who I would expect would have behaviour and health issues, although I accept I have no comparative data that would confirm this view.
7. I think that the submissions regarding the behaviour of residents being a determinative factor in this planning review is misplaced. The proper planning question regarding behaviour is whether this accommodation is well located and I have considered this matter in the previous section.
8. The authority for limiting the scope of this review to its location is the Tribunal's directions in Hunt Club Commercial Pty Ltd v Casey CC (includes Summary) (Red Dot) where the Tribunal held:

Town Planning is not a panacea for all perceived social ills, nor is planning decision making a forum for addressing all issues of social or community concern. At its heart planning is about the use, development and protection of land. ... ... Whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society[10].

1. The matter of behaviour is governed within other jurisdictions that include Victoria Police, Council's Local Laws, residential tenancy and obligations of the owner, the operator and the Department of Health that arise from the registration.
2. Council and the respondents proposed that SRS facility would have less impact on amenity if the number of residents was reduced. They sat that some bedrooms should be converted to internal recreation spaces.
3. I consider that I do not have a sound and proper basis to require the number of residents to support this proposition. I reach this finding for the following reasons.
4. Firstly the Department of Health (DOH) has assessed the facility against the appropriate legislation and has found both the facility and the operator to be satisfactory. The Certificate of Registration includes conditions that limit the number of residents to 49 and limits the number of persons who can occupy specified rooms.
5. I consider that I would need compelling reasons to set aside the DOH assessment, particularly as the Scheme provides no specific guidance in these matters. Without such reasons I consider that I should accept the assessment of the professional body tasked with evaluating SRS establishments. This approach would be consistent with the Tribunal's approach in similar circumstances where the planning jurisdiction overlaps another jurisdiction. It is not the Tribunal's role to repeat an assessment of the body that has the necessary experience and expertise as well as the legal obligations to do the same task.
6. Secondly, there was no obvious rigour or methodology to support the alternate number of residents preferred by Council and the respondents. They provided no alternate expert evidence or comparative study that would enable me to conclude that 49 residents in this building constitutes overcrowding or would be excessive for the facilities and services in the area. Simply put, the number of residents proposed by Council and the respondents is arbitrary and without any clear foundation.
7. Thirdly I am not persuaded that a lesser number of residents would necessarily reduce the number, frequency, or type of incidents described by the respondents. Problems are likely to be caused by only a few residents and problems could arise from ten or twenty as well as 49 residents.
8. All parties accepted that the key to the amenity concerns is ensuring there is appropriate management, supervision, support of the SRS residents and some communication between the SRS facility and the wider community. To what extent can these matters be addressed through planning permit conditions?
9. An SRS has to operate under multiple jurisdictions, each of which includes responsibilities and obligations for management and resident behaviours. The jurisdictions include:
   • Requirements under the SRS Act 2010 that proprietors are responsible for the operation of the facility and subject to penalties for poor performance.
   • Contractual agreement between the owner and operator under which the operator is required to maintain the facility in good order and manage the behaviour of residents, Failure to do so could result in the operator being replaced.
   • Residential and Services Agreement between the residents and the operator that requires the residents to comply with "House Rules" that include minimising noise, not drinking excessively or consuming illicit substances and generally not being a nuisance.
   • Periodic inspections of the facilities by authorised officers of the DOH to ensure compliance with the Certificate of Registration. A risk approach is to be used by the DOH so facilities identified as problematic are targeted.
   • Importantly inspections can arise from complaints from the community[11].
   • Penalties can be imposed on persons and the body corporate for failure to monitor and supervise the residents.
10. The planning system is another layer of regulation and compliance in addition to the above. The Tribunal, with the authority of the Supreme Court has said that whilst it may be an expert Tribunal in planning, it is not expert in everything. Where there are established code and regulatory standards:

The Tribunal is obliged to apply the relevant statutory standards as it finds them, not to pioneer standards of its own. The creation of new standards is a matter for other authorities[12].

1. Simply put the Tribunal should accept standards for that particular industry published by a body expert in a field. The only circumstances where the Tribunal may not apply published standards would be where a standard is not appropriate in that case or not generally appropriate. I consider there is no basis to conclude that the layers of obligations and responsibilities are not appropriate to this case or should be set aside.
2. Conditions in a planning permit are required to relate to the permission that has been granted. In this case, the planning focus is to ensure that residents behave appropriately and the premises are in good order when viewed from public places. Given the extent of other compliance, the planning permission should relate principally to the interface with the public realm and to the site's location.
3. I concur with the applicant's proposal that the permit require a management plan to the satisfaction of Council. The management plan would require the public display of a contact name and address, arrangements for the maintenance of the landscape and recreation areas and arrangements for the storage and collection of wastes. It could also require information regarding public transport and taxi services to be distributed to SRS residents.
4. I consider that the management plan is an opportunity to record any problems, and also investigate opportunities to enhance the relationships with neighbours. I consider that it should include arrangements for a register of complaints regarding problems with the appearance of the building and grounds. It should also identify opportunities to improve the communications between the SRS residents, the management and its neighbours.
5. I consider that a condition with these requirements are appropriate planning matters that arise from the site's use and location and its likely amenity impacts on the surrounding area.

1. Car parking was the second adverse impact identified by the responsible authority and the respondents. They submit that the sixteen car parking spaces would be inadequate to meet the likely car parking demand generated by the residents, visitors and staff of the SRS. Consequently the demand for on-street car parking would be increased and would contribute to increased traffic and parking congestion on Summit Avenue and Davis Street.
2. With regard to car parking Mr Logan noted that the application was not referred to Council's traffic engineers. He did note that on his two site inspections in business hours, most onsite car parking spaces were vacant, and there were very few cars parked in Summit Avenue Mr Turnbull's evidence was that on his site inspection on a Saturday afternoon few of the on-site car parking spaces were used, and there were few cars parked in Summit Avenue. I observed the same on my site visit.
3. Mr Turnbull opined that residents of this facility would have very low car ownership rates. It was his opinion that their low incomes (usually a pension) prevented most residents from operating a car. Those who can afford to do so are likely to reside in this facility for only a short time.
4. Mr Turnbull noted that there are two staff members on site who would require car parking spaces. Some additional spaces are required for visits by support and health care workers. He thought that six spaces would be adequate and probably exceed the likely demand by staff.
5. With regard to the ten car parking spaces at the north end, Mr Turnbull thought that these spaces would exceed the demand generated by residents and visitors. He thought there were no traffic engineering reasons for the application to not be supported.
6. In response to questions from the Tribunal, Mr Turnbull thought that information about public transport routes could be displayed within the building and provided to residents. The permit applicant agreed that information on public transport services is being provided and had no objection to this being required by the management plan. Given that most if not all residents and visitors rely on public transport, any information would assist their capacity to access services and facilities in Geelong generally. This would reduce to some degree their reliance on the facilities of the SRS and its immediate neighbourhood.
7. Ms Marshall amplified Mr Turnbull's evidence and advised that since January 2012 only three residents have owned a vehicle, and only one at a time. Whilst all residents are assigned a case manager, they visit infrequently and usually only one at a time. Residents have very few visitors, typically a total no more than two per day for the facility, and visitors also have low car ownership rates.
8. There are between three and six staff on site at any one time.
9. The information provided by Ms Marshall and Mr Turnbull aligns with the anecdotal descriptions provided by the Council and the respondents. It is also consistent with the report from the Office of the Public Advocate that finds many residents of these facilities have infrequent contact with family and friends. They are also reliant on pension income and hence have limited means to operate a car[13].
10. I am satisfied that the existing 16 car parking spaces would readily accommodate the car parking demand generated by the residents, staff and visitors in this facility. I cannot see this facility having any adverse impacts on traffic or parking in Summit Avenue or Davis Street. Indeed whilst there may be more residents, they will generate less traffic and parking than the building's previous use for aged care which probably had more staff and visitors.

1. The review site adjoins four properties, two on its east and two to its west. Three of these properties are dwellings, the fourth on the southeast is a former mechanical repair premises (now unused).
2. I have no concerns with the interface between the mechanical repair business and the SRS facility. The mechanical repair business is separated by fencing and the workshop faces away from the SRS building. This interface is a suitable area for additional recreation facilities such as seating as the interface is not sensitive.
3. The interface with the sensitive part of No.2/270 High Street is limited to the northern most couple of rooms, and I think there is sufficient landscaping to minimise overlooking.
4. Mr Negri noted that there is some sensitivity in the interfaces to the west. The landing and the floor height of the lounge room that face west enable the secluded open space of No.6 Davis Street to be overlooked by SRS residents. Whist there is some landscaping along this boundary, I concur with Mr Negri that trellis fencing to a height 1.7 metres above the floor level would address this concern.
5. No.7 Summit Avenue abuts the northwest boundary of the review site. The driveway to the dwelling adjoins the common fence. The front entry and windows to a habitable room are opposite rooms 2 and 4, separated by approximately six metres and a low rise fence. A carport is opposite rooms 4 and 5 and a garage now converted to habitable rooms is opposite rooms 7 and 8.
6. The responsible authority proposed additional screening to the boundary with No.7 Summit Avenue, adjacent to rooms 2 to 8 to minimise overlooking of its private open space and habitable room windows. Overlooking might occur from rooms 2 to 8 and from people using the area between the residential building and the fence as a recreation area.
7. I do not agree that additional fencing is necessary between rooms 5 to 8 as the adjoining dwelling and its private open space areas are screened by the side walls of the carport and garage and the existing fence. There is little opportunity for overlooking.
8. I concur with the responsible authority that additional screening is required for the length of fencing opposite rooms 2 and 4. This area appears to be used by the SRS, evidences by the presence of several chairs between the building and the fence. Their presence in this area could be perceived by the residents of No.7 Summit Avenue to be intrusive given the low height fencing and the proximity to the dwelling entry and its primary living spaces.
9. The applicant proposed that landscaping be planted along this part of the fence. I consider it preferable that fencing be installed. Fencing would provide effective screening immediately without the delay for the planting to mature. Fencing would not reduce the space that would be available for residents to use for recreation. Finally fencing would enable the area between the building and the side fence to remain open to casual surveillance from the car park and street.
10. The respondents complained that grounds and gardens are poorly maintained. They say that litter, discarded furniture and the like can be seen in the gardens and car parks.
11. I consider that the maintenance of the areas visible to the public realm is an appropriate planning concern. This can be addressed through a management plan that would require the areas at the front and to the rear of the building to be regularly maintained.

Would the facility's residents enjoy acceptable amenity?

1. The Council and the respondents agreed that in general the building is well suited to provide acceptable accommodation to its residents. All parties agreed that the size of the bedrooms, bathrooms and internal recreation and dining rooms are primarily a matter to be assessed by the Department of Health according to their industry standards. The fact that it has gained a Certificate of Registration is confirmation that the size and quality of the bedrooms and internal amenities is acceptable to the body with experience and expertise in this field.
2. The Council and respondents submitted that the building provides inadequate outdoor open space for the residents. They say that the building was designed several decades ago for aged people and it provides little outdoor open space. The limited spaces are inadequate for 49 generally able bodied and physically active people.
3. The Council and the respondents submitted that the consequences of the limited outdoor spaces areas are that SRS residents mainly use a portico area and grassed landscape area at the front of the building, next to the car park. The limited spaces means that too many people use the spaces. Tensions can quickly escalate to confrontation as people cannot move elsewhere within the site. Alternatively the SRS residents utilise the local streets and their neighbours' front yards as their recreation areas.
4. The Council and the respondents submitted that some bedrooms should be converted to internal recreation space to reduce the pressure on the recreation spaces within and around the SRS building, to the benefit of SRS residents and neighbours.
5. In response to my comment regarding quantitative standards by which to assess such propositions the respondents and Council invited me to apply standard B28 of clause 55. Ms Marshall invited me to accept the assessment completed by DOH integral to the Certificate of Registration, and the subsequent design guidelines specifically developed for SRS accommodation.
6. In light of my previous comments regarding deference to the expertise and experience of authorities I prefer the DOH design guidelines rather than the planning guidelines that are applicable to dwellings designed for small households.
7. With regard to recreation rooms, the recommended minimum is 49 square metres of lounge/communal rooms within the facility. The shape, ceiling height and location of the internal spaces is relevant.
8. The SRS facility readily satisfies the provision of internal recreation space. It provides a lounge room adjacent to the dining room. As required, the two rooms are connected by an openable door. The lounge room has an area of approximately 45 square metres, and the dining room is approximately 60 square metres.
9. There are two additional internal recreation/communal spaces. There is a room that contains a pool table, and it has a floor area of approximately 30 square metres. There is a small area adjacent to a corridor. It contains 4 or five seats and an exercise machine, and it has an area of approximately 20 square metres.
10. In total the facility has internal communal space of approximately 95 square metres excluding the dining room. This area increases to 155 square metres if the dining room is included. I note that except for the space adjacent to the corridor, all the spaces have natural light and ventilation, have regular dimensions, provide seating and are open to the corridor and surveillance. They are pleasant spaces.
11. With regard to external spaces, the minimum usable area is to be five square metres per resident. This includes courtyards, verandahs and balconies both individual and communal. A lesser area may be acceptable provided it is 1.5 metres per resident and more internal space is provided to offset the smaller outdoor area(s).
12. The design guidelines note that spaces immediately adjacent to SRS residents' windows may detract from the privacy of the SRS residents, hence areas within 1.5 metres of a window are not to be included in the estimate of external space[14].
13. Applying these requirements, this facility should provide between 73 and 245 square metres of external open. I consider that the facility readily meets the DOH quantitative measures. It provides a total of 490 square metres of usable open space. The open space areas comprise:
    • The front verandah adjacent to the entry and lounge. This area is covered and has an area of approximately 30 square metres.
    • A grassed area between the front car park and the verandah that has an area in the order of 150 square metres.
    • The area adjacent to the second lounge and landing that is an area in the order of 10 square metres.
    • The area adjacent to the western fence between rooms 2 to 8 that has an area of approximately 100 square metres.
14. In addition to the above spaces, a large area of open space is located in the southeast corner of the land. It extends along the east and south boundaries from room 10 to room 21. It contains seating, canvass shelter and has been used for BBQ's. It has an area in the order of 200 square metres.
15. I also think the open space areas meet relevant qualitative considerations. The primary space facing Summit Avenue is north facing and hence receives pleasant solar access. It is covered and is well located adjacent to the main building entry and lounge and dining rooms. It accommodates up to ten residents and it enables casual surveillance of and from Summit Avenue. Notably it is set back approximately 25 metres from Summit Avenue. Its visibility is screened by several trees in the front setback area. The veranda is also in the central part of the "U" shaped building and so is screened from oblique public view by the two wings of the building. SRS residents using the veranda are not readily visible from Summit Avenue.
16. The second main space on the south and east boundaries is approximately 3 metres wide and grassed. Most of this area abuts the former mechanic workshop and other land that appears to not be used for secluded open space for the adjoining dwelling. Hence the adjoining land is not a sensitive interface. Its width complies with standard B28 of clause 55 of the Scheme. Importantly, the windows of the adjoining facility rooms are well above head height, and so people within this space cannot see into the residents rooms. I concur with Mr Negi that this area could be upgraded to become a pleasant space for residents.
17. The other spaces are less attractive, but provide options for individuals and small groups to recreate separate from the two primary areas.
18. I think that the provision of open space is acceptable to meet the SRS residents' recreation needs particularly as many residents would be likely to prefer to stay in their rooms or leave the facility during the daytime.

Do any other matters warrant rejection of the proposal?

1. Several other matters were raised in submissions including devaluation of property values. None provides the basis for rejecting the permit application or requiring additional conditions.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. The permit will include conditions that have regard to the submissions and evidence of the parties, and the matters that arise from my reasons.

• Use of land within a Residential 3 Zone for a residential building (Supported Residential Building)

1. Within 28 days of the issue of this Planning Permit, three (3) copies of amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application documentation dated 25 September 2012 but modified to show:

1. The grassed area on the Summit Avenue side of the building (around the entry path and flanked by rooms 1, 3, 20 and 22) as a residents' outdoor recreational area. 2. A communal area along the eastern and southern boundaries to include seating and screening by a 1.8 metre high fence to the eastern boundary of this space.

1. The six car parking spaces at the southern end of the site as a designated staff parking area.

1. The location of trellis fencing on the western boundary above the existing fence to a height of 1.7 metres above the fixed floor level of the SRS building between the south wall of the adjoining lounge room and the northern wall of room 38.

1. The use as shown on the endorsed plan(s) must not be altered without the written consent of the Responsible Authority.

1. Within three months of the date of issue of this permit, a Management Plan must be submitted to and approved by the Responsible Authority. When approved, the Management Plan will be endorsed and will then form part of this permit. The plan must include:

1. the name and contact details of the person responsible for the day to day management of the premises; 2. a requirement for a sign to be displayed in a location visible to the public detailing the name and contact details of the person who can be contacted to respond to incidents in the surrounding area;

1. arrangements for the maintenance of landscaped areas;

1. arrangements for the storage of garbage and recyclables and for waste collection; 2. arrangements to provide information to residents regarding public transport and taxi services in Geelong; 3. house rules for the purposes of protecting the amenity of the area and details of their distribution to SRS residents; 4. arrangements for a register of complaints from residents of the Belmont area regarding the appearance of the facility or the behaviour of residents and arrangements for access to the register by Greater Geelong City Council; 5. arrangements to ensure prompt responses by the management of the SRS facility to reported behavioural incidents by SRS residents that occur in the Belmont neighbourhood; and 6. arrangements to foster positive relationships between the SRS facility and immediate and nearby neighbours.

The use must operate and be managed in accordance with the conditions and provisions of the approved Management Plan to the satisfaction of the Responsible Authority. The plan may be amended from time to time to the satisfaction of the Responsible Authority.

1. Within 28 days of the issue of this Planning Permit, three (3) copies of a landscape plan prepared by a suitably qualified or experienced person to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. The plan(s) must be drawn to scale and show:

1. a survey (including botanical names) of all existing vegetation to be retained and/ or removed; 2. details of surface finishes of pathways and driveways;

1. 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;

1. landscaping and planting within all open areas of the site; 2. specific landscaping treatment of the residents' outdoor recreational area including seating and shade sails as required. This must include a fence along the northern edge of this area which is a minimum of 1.8 metres in height and utilises a material and finish that is appropriate to its setting.

When approved, the plan will be endorsed and form part of the permit, all to the satisfaction of the Responsible Authority.

1. Within three months of the issue of this Planning Permit, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.

The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.

1. Unless otherwise approved in writing, not more than 49 residents and 1 night manager (with the exception of 6 full time staff), may be present on the premises at any one time, to the satisfaction of the Responsible Authority.

1. Car spaces, access lanes, pedestrian paths and driveways must be kept available for these purposes at all times.

1. Within three months of the issue of this Planning Permit, low intensity lighting must be provided to the satisfaction of the Responsible Authority to ensure that car park areas and pedestrian accessways are adequately illuminated during evening periods without any loss of amenity to occupiers of nearby land to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   1. The use is not started within two years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Status report on SRS, Office of the Public Advocate (September 2009)

[5] The Geelong Region Plan September 2007 notes that the region has a relatively high level of disadvantage.

[6] [2008] VCAT 2254

[7] [2007] VCAT 2256

[8] [2008] VCAT 2608

[9] Tulcany Pty Ltd v Knox CC [2003] VCAT 1627

[10] [2013] VCAT 725 para 15

[11] Supported Residential Services Regulatory Practice Framework Department of Health (January 2013)

[12] Hyett v Shire of Corangamite [1999] VCAT 794 quoted in Cherry Tree Wind Farm Pty Ltd v Mitchell SC [2013] VCAT 1939 para 33

[13] Status report on SRS, Office of the Public Advocate (September 2009)

[14] Supported Residential Services design guidelines, Third Edition (August 2013)