Omni Property Group v Port Phillip CC [2006] VCAT 907

Omni Property Group v Port Phillip CC [2006] VCAT 907 - VCAT 2006 case summary — Zoe

[11]

(a)

A schedule of colours, materials, finishes and textures to the satisfaction of the Responsible Authority.

(b)

Functional, integrated and contextually appropriate urban art, able to be appreciated from the public realm to the satisfaction of the Responsible Authority.

(c)

Proposed location of retail and building identification signage.

(d)

Variety to the parapet height, alignment or materials, possibly related to the room type or fenestration below to the satisfaction of the Council's Manager, Urban Design and Architecture.

(e)

Full details of screening devices to prevent overlooking between the balconies and terraces of residential units within the site whilst continuing to allow horizontal and upward views.

(f)

Incorporation of the recommendations of the energy rating report.

(g)

Details of siting of solar panels, building plant and equipment, any satellite dishes and or plumbing.

(h)

Details of acoustic treatments to the south wall and associated windows and doors to protect the units' residential amenity from noise from adjacent non-residential uses, in accordance with a report prepared by an acoustic engineer to the satisfaction of the Responsible Authority.

(i)

Provision of communal facilities in the resident first level courtyard area.

(j)

Any residential reserved car spaces in the ground level car park secured from other users of the development.

(k)

A car park control point placed a minimum of one car length (6 metres) inside the property line to serve the basement level car park.

(l)

Bollards or other suitable separation devices placed at the entrance to the foyer at the elevated podium level to provide protection to pedestrians exiting the foyer into the car park.

(m)

Provision of a storage area to each unit.

(n)

The accessway to the basement car park to incorporate the flood proof apex of a minimum of 300mm above flood level or other measures of preventing flooding of the basement.

(o)

Deletion of the western crossover and the kerb and footpath shown to be reinstated.

(p)

The louvres attached directly to the windows setback 3m from the western boundary so as to be less intrusive on the property to the west.

(q)

Retention of existing vegetation on the western boundary.

(r)

Terraces to Units 129, 131 & 133 & 135 reduced in width to 2m and the planter boxes adjacent to these units set into the headroom of the basement car park below.

(s)

Provision of six additional car parking spaces in the residential car park, and conversion of six residential car parking spaces to publicly accessible car parking spaces.

(t)

The provision of 38 bicycle parking spaces and associated shower and change facilities in accordance with c1.52.34 of the Port Phillip Planning Scheme.

(u)

Provision of garbage facilities adequate for all uses on the site including the supermarket.

(v)

A designated "no standing" zone west of the proposed crossover and modified crossover to provide for the "sweep path" of a 10m long rigid truck as shown in the diagram attached to the Ratio Traffic Impact Report March 2006.

(w)

A retail tenancy shown as the lobby/reception for the serviced apartment component of the proposal.

(x)

Provision of a loading by of 126m² along the western boundary of the site with access from Inkerman Street.

[58]

28 It was Mr Ganley's contention that it would be unusual for customers to carry out a full week shopping at Aldi Store. He put it to the Tribunal that Aldi catered for bulk buying on a small range of items and also for featured discount store goods which varied from novelty items to televisions or washing machines.

29 Mr Ganley stated that it was virtually impossible for Aldi to obtain a site which met their requirements within existing retail activity centres in the St Kilda area to achieve the benefits of co-location advocated by the council. There was some debate about whether adequate enquiries had been made to council as to site availability. Council's witnesses however did not produce any contrary evidence, and our tentative conclusion on inspection was that it would be extremely difficult to obtain a site for a stand alone Aldi Supermarket with adequate car parking in the Carlisle Street, Fitzroy Street or Acland Street retail areas.

30 Mr Ganley's analysis of the supermarket goods spending market focused on edible supermarket goods (ESG) which comprise almost 80% of supermarket sales in Australia. He confined his analysis to a primary catchment area within 3km of the subject land and a secondary catchment extending to 3.5km to the north, east and west.

31 There are two supermarkets in the identified catchment; Coles (2,615m²) and Safeway (1,520m²). Mr Ganley contended that these were both small by modern standards; a standard full line supermarket being at least 3,000m², and that the overall presentation of the stores was relatively poor, and parking was at a premium, with patrons competing with other users of Carlisle Street for spaces. Our inspection confirmed these observations.

32 Mr Ganley's analysis of the current ESG sales of the Carlisle Street supermarkets showed trading levels well in excess of the current Australian average which he attributed to an under provision of supermarket space in the catchment.

33 His figures also demonstrated that the major ESG retailers in the catchment area were capturing less than half of ESG spending originating in the catchment area, with the excess spending directed out of the catchment areas and to other smaller ESG retailers within the area.

34 He compared the forecast ESG sales of the Aldi supermarket of $7.2M, that is 3.6% of ESG sales in the primary sector reducing to 1% in the secondary sector and concluded the market share taken by the proposed Aldi would pose no threat to the local retailing community and would in no way undermine the fabric of the Carlisle Street activity centre given; the large local spending potential, the forecast growth of sales and the under supply of space.

35 He concluded overall that the development would have the following net community benefits:

[84]

66 Mr Hardiman's evidence was that the planning scheme provided no guidelines to real world loading needs and referred to the VicRoads Guidelines. In his opinion it was likely that Aldi and other supermarket operators would prefer to use 19 metre long semi trailers for deliveries and would not accept restrictions to 14m. This belief is, in the light of the applicant's evidence no longer applicable.

67 Mr Hardiman's criticism of the loading area was that whilst it complied with the requirements of the planning scheme in terms of spatial provision, from a traffic impact and road safety perspective its location requires trucks to stop on the incorrect side of a secondary arterial road that carries at least 11,000 vehicles per day, and then reverse into the loading bay, causing all traffic to stop and the possibility of rear end crashes, with unacceptable adverse safety implications.

68 He considered that a greenfields site approach requiring forward ingress and exit was desirable. Mr Gobbo responded that the current building design would not allow a redesign to achieve this, and that in this inner city location this approach was a wasteful and unnecessary use of scarce land resources.

69 Mr Symons and Mr Durkin tendered diagrams which showed that 10m rigid trucks and 14m articulated trucks could reverse into the loading bay provided and not impede passing vehicular traffic or encroach into the east bound carriageway subject to some minor widening of the crossover.

70 Mr Durkin was of the view that further benefit could be obtained by designating a small section of on-street car parking fronting the site immediately east of the loading crossover as a loading zone.

71 Mr Symons referred to many situations throughout Melbourne especially in strip shopping centres where supermarkets require delivery trucks to reverse into loading bays off major roads, for example the Coles Supermarket in Doncaster Road, North Balwyn and the Safeway Supermarket in Jasper Road, Bentleigh, both much larger than the proposed Aldi supermarket..

72 Mr Durkin surveyed the frequency and duration of gaps in the traffic stream created by the adjoining signalised intersection of Chapel Street and St Kilda Road, and that the average number of gaps sufficient to allow a truck to reverse into the site (20 seconds or greater) occurred on average 45 times per hour and accounts for 64% of the time. He further found the minimum number of times a gap of 20 seconds or greater occurred was 21 times per hour and that the available gaps were distinctively less than in off-peak times.

73 The survey also analysed queuing over or past the subject site driveway during peak times and found the driveway is blocked 22% of the time between 8am and 9am and 14% of the time between 5pm and 7pm.

74 Mr Durkin concluded that the loading arrangements as proposed were satisfactory subject to the restrictions in delivery times already mentioned together with the designation of a loading zone immediately to the east of the loading crossover.

75 We accept the evidence put on behalf of the applicant and find the loading bay arrangements are satisfactory subject to the recommendations made in Mr Durkin's submission outlined above.

[85]

76 Amenity impacts were not heavily relied on by council. Mr Clarke did not consider there would be any significant amenity issues raised between the residential land uses along both sides of Inkerman Street, light industrial uses to the site's rear and the proposed supermarket

77 The aspects of amenity relating to the use of the loading bay have been dealt with above.

78 Mrs Jones' objection was in part directed to the lack of need for this facility. She informed us that from where she lives in Inkerman Street diagonally opposite the site she finds it convenient to shop in Acland Street and the Prahran Market and sees no need for another supermarket.

79 Her amenity objections were; noise pollution and dust during the construction phase, bright lights, rubbish, traffic, noise problems with the supermarket's operation, and pedestrian safety. However no additional construction impacts will result from the amendment of the permit to allow the supermarket and loading bay as the construction of the building is already approved and has commenced.

80 Under the present approved proposal cars driving in and out of the car park may impact on her property. As the Aldi Supermarket will operate mainly during the day there will not be any significant head light glare arising from any increase in use of the car park by Aldi Supermarket customers. In any event Inkerman Street is hardly a quiet pedestrian environment carrying 12,000 vehicles per day.

81 Mrs Jones also expressed concern that delivery trucks may use her side street, however given the evidence as to the number of delivery trucks and the proposed loading bay access, we do not think there will be any occasion for truck use of her street that will have a detrimental impact.

82 In conclusion we find that the proposal for an Aldi supermarket is appropriate to the site. The supermarket is not a full range supermarket nor is it comparable to the general run of supermarkets; having a small food product line on offer and a range of discount specials. We find the use to be comparable to a convenience store with a bargain store component that will fill a niche market and have little or no impact on existing retail activity.

83 In our view, overall, the proposal represents a net community benefit in providing price savings to the local community and employment opportunities. We consider that this outlet will meet its parking needs on site and given the nature of the goods on offer will either be a single trip destination or part of a multiple shopping trip but will not in any event add significantly, if at all, to the shopping kilometres expended.

At a glance

Court

Decision date

Source

Judgment (90 paragraphs)

Omni Property Group v Port Phillip CC [2006] VCAT 907 (18 May 2006)

Parties

Legislation Cited (2)