Victorian Civil and Administrative Tribunal|2011-04-08

Piccolo & Ors v Murrindindi SC [2011] VCAT 626 (8 April 2011)

Section 82 Planning and Environment Act 1987, Murrindindi Planning scheme, Application for place of assembly, economic disbenefit, off site impacts, dispensation of car parking.

Piccolo & Ors v Murrindindi SC [2011] VCAT 626

A permit is granted in relation to land at 23 Pack Road, Marysville. The permit will allow the construction of a "Men's Shed" (Place of Assembly) and the reduction in on site car parking generally in accordance with the endorsed plans and subject to the conditions contained in Appendix 1.

The land is zoned Residential 1 zone with a Vegetation Protection Overlay.(VPO)

The subject site is approximately 2,000 square metres in area and is located approximately 330 metres from the central business district of the town. The site abuts Pack Road to the north west and Kings Road to the south west. Its main frontage being Pack Road. The land and surrounding areas was affected by the bushfires in February 2009 and prior to the fires there was a RSL building on the property used by the Marysville Historical Society. The site is vacant with some scattered vegetation.

Land abutting the site is Crown Land and there are generally vacant residential lots in the area. Prior to the fires the surrounding properties were mostly developed with residential and tourist accommodation uses.

In June 2010 an application was lodged for the construction of a Men's Shed at 23 Pack Road, Marysville. Upon advertising a number of objectors were received and amended plans were lodged which resulted in a withdrawal of some objections. Consent was obtained from referral authorities and council resolved to issue a notice of decision to grant a permit. This decision was then appealed by a number of parties to VCAT.
The Tribunal must decide whether a permit should be granted and if so what condition should be applied. Having considered all the submissions and evidence presented with regard to the applicable policies and provisions of the Murrindindi Planning Scheme I have decided to uphold council's decision to grant a permit and add some conditions to reflect what was put before me at the hearing. My reasons are as follows:
I consider that the two issues in this case relate to:
- The suitability of the land for place of assembly.
- Off site amenity impacts for the development

The proposed use of the site for a men's shed is listed as a Place of Assembly under clause 32.01 of the Murrindindi Planning Scheme. The zoning of the land is Residential 1 that allows inappropriate educational, recreational, religious, community uses and a limited range of other non residential uses to serve the local community. The main concern of the objectors in relation to this use on the site for a place of assembly was the amenity impacts which included the character of the development which they perceived as an industrial use. Other issues related to the design, noise and hours of operation which will be dealt with shortly.
The main purpose of the proposed development is for a place where men gather and undertake projects, talk, share skills and swap ideas. Council's position was that this site is not for use for commercial manufacturing purposes and they consider that suitable conditions can be placed on the permit to manage potential impacts on the neighbouring and surrounding properties.
An issue for the residents was the design of the building which was modified by amended plans and reduced in floor area. The building will be constructed of colorbond, rough sawn hardwood and stone with an internal floor area of 260 square metres and a roof height of 5 metres to the Pack Road elevation. A landscape buffer is proposed along the boundaries of Pack and Kings Road and there is a requirement for additional landscaping to be done. Council considered the design was generally consistent with the residential development and mountain village character identified in the Marysville and Triangle Urban Design Framework and with this proposition I am in agreement in that I consider the design to be low key and appropriate to its location.
The proposed development is 20 metres from the adjacent walkway (O'Leary's Creek) and council considered the setback appropriate and the development will be connected to reticulated sewer and stormwater and drainage can be managed and council further requires all driveways and parking are to be located in front of the building away from the waterway to protect the waterway from runoff.
The objectors argued strongly that this site was not appropriate for a men's shed and they considered it should be co-located with the other buildings in the newly completed community hub within the township centre property however the council considered the location is suitable and complies with the provisions of the Murrindindi Planning Scheme. Council further considered the proposed development would have long term beneficial impacts on the rebuilding of the community and provide a much needed public an communal space for residents.
Council has supported the concept of the Men's Shed and as part of the rebuilding of the Marysville community I consider that construction of this development when applying an overall community benefit test is appropriate because at the present time an informal men's shed is operating from a shed loaned to the group by a farm on the outskirts of the township. It is understood from Mr Lewis that 10 to 12 men meet once to twice a week where they undertake various projects for community benefit and it provides them a space where they can exchange ideas and continue the healing process as a result of the bushfire recovery.
The objectors strenuously put forward the notion that the creation of this type of building on this location would have a detrimental impact on the economy of the township as rebuilding took place. They were convinced that the proposal is industrial in nature and queried as to whether anybody would consider providing bed and breakfast accommodation or other tourist facilities in the vicinity of this site. I consider that off site amenity impacts can be managed by condition and I consider this form of community facility could well encourage former residents of the township to return and rebuild given that their would be enhanced community building opportunities, not the reversed as claimed by the residents who indicated they supported the concept however not the location.

The resident objectors were concerned that the proposal would lead to a loss of residential amenity and the use should be better characterised as industry which is prohibited in a Residential 1 zone. Mr Thomas Amos a witness for Ms Taylor put to me that under the urban design framework the added uncertainity that this proposal would bring to business redevelopment in the area will not be appropriate and that the proposal should be relocated elsewhere.
It was put to me that this part of the township of Marysville is the hub of tourist accommodation and a drawcard to the area with the exotic gardens and tree lined hills and distant views and that the residents wanted to protect the tranquillity and peace of the area. Mr Piccolo raised a number of issues relating to traffic and parking indicating that there was insufficient parking and that the proposed use would generate noise pollution and queried issues such as storage of chemicals and disposal of waste and the operating hours and considered again that the proposal should be located within the new community centre hub.
Mr Lewis on behalf of Berry Street Victoria Inc indicated that the machinery that they current had or had been donated included a wood lathe that operated on half horse power motor and a bandsaw with a half horse power motor with the balance being small electrical and hand tools. Funding had been raised by donation and the proposal is to be undertaken in stages with the construction costs being donated in kind. He indicated that he was prepared to scale back the hours of operation and consider and support the inclusion in the conditions of an requiring an acoustic report indicating the type of measures that would need to be taken to ensure that there was no off site amenity impacts from the proposed use of the machinery.
He also provided the information that the majority of the visitors to the men's shed were older men in the 50 plus aged bracket, generally the meetings were after hours in the evening and it was an opportunity for them to come together and work on small projects and to this extent it was not an industry for commercial gain. Given the small numbers attending the site the provision of 12 car spaces I consider to be satisfactory and will not cause detriment to the area, even if there were the occasional overflow to the street.

Under the draft permit conditions council had imposed conditions requiring 12 car parking spaces to be shown on site including a disabled space and given the locality of the site and its area and the intermittent use of the site I consider that 12 spaces is satisfactory together with two bicycle spaces. Council also proposed a range of conditions dealing with refuse removal, noise etc however they had not included specifically hours of operation which given the concern of adjoining residents is something that will need to be addressed as part of any permit.
I will require a further reduction in the size of the workshop component, to ensure it is in balance with the size of the meeting room and conditions in relation to the hours of operation, together with the requirement for the preparation of an acoustic report regarding suitable noise attenuation for the building, given the equipment being used.

Given the efforts being made to rebuild, not just the fabric of Marysville but the lives of its residents, I consider the proposed "Mens Shed" is a suitable addition to the town, and its current location is satisfactory. Scaling back the workshop and imposing suitable attenuation measures will ensure that the use of the building will not adversely affect the surrounding area. On this basis a permit should issue.

Construction and use of a Men's Shed (Place of Assembly) and a reduction in the car parking required under Cl. 52.06 of the Murrindindi Planning Scheme

(1) Prior to the commencement of any buildings or works three copies of a plan or plans must be submitted and approved by the Responsible Authority. Such plans must show the nature of all external materials and finishes, siting and dimensions of all buildings, details of water storage tanks and any proposed excavations. Such plans must also show:

A reduction in size to the southeast side of the workshop to be in line with the edge of the verandah around the meeting room to increase the side setback to the eastern boundary to 9 metres and increase landscaping opportunities.

When approved these plans shall be endorsed and form part of this permit.

(2) This permit shall expire if the use hereby permitted has not commenced within two (2) years of the date hereof, or any extension of such period the Responsible Authority may allow in writing, on an application made before three months after such expiry.

(3) The layout of the site and the size and type of the proposed buildings and works, including the materials of construction, as shown on the endorsed plan shall not be altered or modified without the consent in writing of the Responsible Authority.

(4) The hours of operation for the meeting room part of the building shall be:

The hours of operation of electric machinery and power tools in the workshop shall be:

Hand tools may be used for the times allowed for the meeting room.

(5) All refuse and rubbish associated with the use allowed must be removed from the area at least once weekly, and more often if required by the Responsible Authority.

(6) The use or development hereby permitted shall not cause nuisance or injury to, or prejudicially affect the amenity of the locality, by reason of the transportation of materials, goods and commodities to and from the land, the appearance of any building, works, or materials on the land, the emission of noise, vibration, smell, fumes, smoke, vapour, steam soot, ash, dust, waste water, waste products, grit, oil or the presence of vermin or otherwise.

(7) Before any work commences on the site an Acoustic Report must be prepared to the satisfaction of the responsible authority by a suitably qualified person to ensure the building is suitably acoustically treated to ensure that the emission of noise from plant or equipment from the premises including the surrounding environment and carpark areas, does not cause annoyance to persons beyond the site. All recommendations contained in this report must be incorporated into the construction of the building.

(8) The subject land must be kept neat and tidy at all times and its appearance must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality, and all goods and materials used on teh site must be stored within the building.

(9) Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.

(10) Car parking space 12 as shown on the endorsed plan must be designed and marked as a disabled car parking space to the satisfaction of the Responsible Authority.

(11) A minimum of two bicycle parking spaces must be provided on the site.

(12) Prior to the commencement of the use and development hereby permitted a vegetation planting schedule shall be lodged with, and approved by, the Responsible Authority. Such schedule shall show time lines within 5 years of the date of this permit and species of vegetation for the planting as shown on the plan endorsed with this permit. All vegetation to be planted shall be natives indigenous to the local area.

(13) Before construction works start associated with the provision of car parking on site, detailed engineering construction plans demonstrating compliance with AS 2890 Parking Facilities and to the satisfaction of the relevant authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions.

(14) Before the use or occupation of the development starts, the area(s) set aside for parking of vehicles and access lanes as shown on the approved plans must be:

surfaced with an all-weather seal coat / constructed and completed to the satisfaction of the Responsible Authority;
drained in accordance with an approved drainage plan;

line-marked to indicate each car space and all access lanes;

properly illuminated with lighting designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land;
Provision of signage directing drivers to the area(s) set aside for car parking. Such signs are to be located and maintained to the satisfaction of the Responsible Authority.

(15) Vehicular entrance to the subject land from Pack Road must be constructed at a location and of a size and standard satisfactory to the Responsible Authority. The vehicle crossing(s) must be constructed at the applicant's expense to provide ingress and egress to the site to the satisfaction of the Responsible Authority and shall comply with the following:

standard vehicular crossings shall be constructed at right angles to the road to suit the proposed driveway;
any proposed vehicular crossing shall have satisfactory clearance to any side-entry pit, power or Telecommunications pole, manhole cover or marker, or street tree. Any relocation, alteration or replacement required shall be in accordance with the requirements of the relevant Authority and must be at the applicant's expense;

The vehicle crossing shall be designed and constructed to prevent water being channeled from the road on to the subject land;

A vehicle crossing permit must be obtained from the Murrindindi Shire Council prior to the commencement of any works on site.

(16) Before the use begins and/or the building(s) is/are are occupied all stormwater and surface water discharging from the site, buildings and works must be conveyed to the point of discharge by underground pipe drains to the satisfaction of the Responsible Authority.

(17) Stormwater discharge from downpipes or overflow from storage tanks and surface water shall not be directed or caused to be directed in a concentrated form that will cause erosion and or adverse affects to sullage disposal areas within the site or to adjoining land or properties.

Environment Act 1987

Piccolo & Ors v Murrindindi SC [2011] VCAT 626

At a glance

Court

Decision date

Source

Judgment (39 paragraphs)

Piccolo & Ors v Murrindindi SC [2011] VCAT 626 (8 April 2011)

Parties

Legislation Cited (1)