and Responsible Authority Boroondara City Council

Medium Neutral Citation [2002] VCAT 38

The decision of the Responsible Authority is varied.

A permit is granted and directed to be issued by the Responsible Authority for the land at 8 Bryson Street, Canterbury. The permit allows:

The construction of buildings and works in accordance with the endorsed plans and the use of the land for a public car park and toilet/public convenience.

It is directed that the permit contain the conditions set out in the Responsible Authority's Notice of Decision to Grant a Permit except that:

A. Condition No. 1 shall be replaced by the following:

1. Before any development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for endorsement to form part of this permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans (Reference Drawing No. B1442.02, Revision A, dated 16 March 2001) but amended to show:

(a) the paving under the toilet unit to be asphalt not cobblestone;

(b) the slatting and finial and picket fence as being of simple rectangular sections with no moulded or carved surfaces;

(c) the canopy area extended to the west to provide more shelter to the entry;

(d) where possible the planting of low level prickly shrubs (1m high) such as Carpet Roses, to the rear and sides of the toilet module.

B. In Condition No. 3 the word "use" must be replaced by "public toilet".

7. Lights to the car park or security lighting for the public toilet must be located and screened to the satisfaction of the Responsible Authority in order to cause no adverse detriment or annoyance to the properties immediately surrounding the car park.

D. The following additional conditions must be added numbered 8 to 12 with former Condition 8 re-numbered as Condition 13:

8. Prior to the commencement of any development a landscape plan incorporating:

(i) a survey of all existing vegetation and natural features;

(iii) a schedule of all proposed trees, shrubs and ground covers which must include the location and size at maturity of all plants, their botanical names and the nature of any ground covers or surface materials;

(iv) paving, retaining walls, fence design details and other landscape works including areas of cut and fill;

must be submitted to and approved by the Responsible Authority. An endorsed copy of the landscape plan will form part of this permit.

9. All landscaping shown on the endorsed plan must be completed, to the satisfaction of the Responsible Authority, prior to the public toilet use commencing.

10. All landscaping must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority and any dead or diseased trees or shrubs must be replaced as soon as possible.

11. Except for the two trees marked for removal on the endorsed plans, no tree on any part of the subject land may be removed, lopped or destroyed except with the consent of the Responsible Authority or in compliance with a lawful requirement, in writing, by a public authority acting under any Act.

12. The area set aside for the parking of vehicles as depicted on the endorsed plan must be made available for such use at all times and must not be used for any other purpose.

The area set aside for parking of vehicles together with the aisles and crossovers must be properly formed to such level that it can be used in accordance with the endorsed plan and must be drained and sealed with an all weather seal coat capable of being line marked.

The boundaries of all car spaces must be clearly marked in accordance with the endorsed plan.

For the applicants for review: Mr C. Canavan QC with Ms S. Macindoe, solicitor, instructed by Deacons Lawyers. Ms Macindoe called expert evidence from Mr James Holdsworth, an architect and urban designer with experience in designing for public safety.

For the responsible authority: Mr Bill Chow, town planning consultant with Zoneworks Planning and Design.

City Council Mr Terry Montebello, solicitor with Maddock Lonie and Chisholm, lawyers. Mr Montebello called expert evidence from Mr Brian Basham, a security risk management and crime prevention consultant and former member of Victoria Police.

1. This was an application under Section 82 of the Planning and Environment Act 1987 (P & E Act) to review a decision by Boroondara City Council to grant itself a permit (in Permit Application No. BOR/01/00219) to construct buildings and works on the land at 8 Bryson Street Canterbury and to use the land for the purpose of a public car park and a toilet/public convenience.

2. Section 96 of the P & E Act refers to permits required by responsible authorities when the responsible authority is the owner of the land. Section 96(1) requires that a responsible authority must obtain a permit from the Minister before carrying out any use or development for which a permit is required under the planning scheme for which it is the responsible authority unless the planning scheme exempts the land, use or development from the sub-section.

3. The Planning Scheme at Clause 67 sets out various classes of use and development that are exempted from this section of the P & E Act. Exempt classes of use and development include a car park and a community facility which is defined in that clause as "including child care centre, maternal and infant welfare centre, neighbourhood house, place of assembly and toilet block".

4. Clause 67.02 requires that notice must be given of such applications to the owners and occupiers of adjoining land.

5. Public notice of the application was given to adjoining owners and occupiers. Twenty-seven objections and 37 submissions in support of the application were lodged following the giving of this public notice. One of the submissions in support comprised 816 signatures.

6. Under Section 60(1)(a)(i) a responsible authority, before deciding on an application must consider "all objections and other submissions which it has received and which have not been withdrawn". Whilst Mr Canavan may be correct in suggesting that on occasions responsible authorities take the view that the weight of numbers is a relevant matter to have regard to, it would be my suggestion that the purpose of being required to consider all objections and other submissions is to better inform a responsible authority of matters that might be relevant to its decision, having regard to local community knowledge.

7. The grounds for objection and submissions in support were summarised by Mr Chow at page 10 of his written submission as follows:

"The objectors' concerns are summarised below:

* Toilet is inappropriately located so close to a residential area, and will cause loss of amenity to nearby dwellings (unsightly appearance, foul odour).

* There are other locations where the toilet can be better sited.

* Public toilets that have been closed down in other locations should be re-opened.

* There is no need for public toilets in this location. There are already toilets in nearby restaurants and cafes.

* The toilet will only benefit the traders at the expense of local residents.

* Toilet will attract drug related and other undesirable activities. Public safety will be compromised.

* The toilet building is unattractive and will detract from the residential character and historic charm of the area.

* Council should honour its previous undertakings made on the car park.

* Toilet may not work as planned: self-cleaning mechanisms may fail and people may be locked inside.

* Public toilets in Maling Road Shopping Centre are long overdue.

* Amazed/horrified/disappointed to find there are no public toilets in Maling Road Shopping Centre.

* Embarrassing to ask shopkeepers to use their toilets.

* Security risk in allowing public to use shopkeepers' toilets. Refused requests are sometimes followed by verbal abuse.

* Elderly women, who are more prone to incontinence, make up a large proportion of shoppers in Maling Road. Their needs are not properly met.

* The proposed location is central, well lit and safe.

* Similar toilets in other locations have worked well without the anticipated problems.

* Objectors to this application are in the minority. They should have been aware of the proximity of the shopping centre when they bought their homes.

* Self interest should not override proper planning processes."

8. The application for permit was also referred for comment to Victoria Police. Victoria Police were also asked to consider two other possible locations within Maling Road namely in the road reservation adjacent to Bradshaws Garage at 85-87 Maling Road and in Theatre Place near to the railway line.

9. In a letter dated 5 March 2001 Sergeant Richard Coo wrote to the Council stating that whilst Victoria Police did not wish to "endorse one location over another" that it was nevertheless in a position "to detail the superior location in terms of community safety". In concluding, the letter stated that:

"The Bryson Street site was found to be superior from the point of view of safety because it offers a good level of natural surveillance coupled with the ability to be properly lit and was within a reasonable distance from the main public thoroughfare. There were some concerns about the Bryson Street site. There is a possible entrapment site just to the east of the proposed facility in the loading bay area of the shops facing Maling Road. This backs onto the service lane that would run to the north of the proposed Bryson Street site. The access to this area could be regulated by the use of a gate or similar and would reduce the risk of this site. There was also an issue associated with the height of the vegetation around the car park. In particular the Lavender plants should be cropped to allow for more visual access. These problems should be addressed before the facility is constructed."

10. The subject application was also referred internally to the Council's Community Safety Officer and its Heritage Adviser. The responses from these two persons was summarised by Mr Chow as follows:

* No. 8 Bryson Street is the preferred location for a public toilet in this shopping centre. This is primarily due to the capacity of the site to reduce the actual and perceived safety risk to the community. This is particularly reflected in the following:

* Level of pedestrian or vehicular activity adjacent to the site.

* The design of the facility is appropriate as it incorporates crime prevention through environmental design principles which includes optimum lighting and vandal proof materials.

* Appropriate cleaning routines should be implemented in the public toilet and surrounding area which reflects the focus on safety. Even though it is self-cleaning, which should contribute to overall community safety, the cleanliness and appearance of the public toilet should be monitored regularly.

No objections were raised by Council's Heritage Advisor to the proposal, which he described as a "small bland incursion into (the) area". However, he did suggest minor changes to the elevational treatment to ensure improved heritage compliance [see condition 1(b) of notice of decision]."

11. The Responsible Authority considered the application at its meeting of 16 July 2001 and consistent with the Planning Officer's recommendation, determined to grant a permit. A Notice of Decision to this effect was issued on 23 July 2001.

12. The subject application for review by Ms Podbury, whose dwelling at No. 10 Bryson Street abuts the southern side of the car park and by Mr & Mrs Cartledge of 16 Bryson Street further to the south, was lodged on 7 August 2001. The grounds for review are stated to be:

* Will remove landscaping previously required and agreed to remain on previous permit. Council has failed to honour previous commitment.

* Inappropriate location for this facility as it is too close to residential properties and should be located within the commercial area.

13. The subject land is used and developed as a public car park and is located within the Maling Road Shopping Centre approximately 60m south of the intersection of Maling Road and Bryson Street.

14. A laneway extends across the northern side of the car park linking this 27 space car park to another slightly larger car park with frontage to Wattle Valley Road, which extends parallel to Bryson Street to the west.

15. The southern side of the existing car park abuts No. 10 Bryson Street, owned and occupied by Ms Podbury. Hers is a single storey Victorian era dwelling. Its side wall is built to the boundary and there are no windows facing towards the car park. Furthermore, a wing wall to the front verandah prevents views from the front door area towards the car park and there is heavy planting in the front garden setback, further reducing visibility towards the car park. Immediately opposite the subject land there is an IGA Licensed Supermarket. It was suggested to me and I accept that this supermarket has no real active frontage to Bryson Street. To its rear and almost diagonally opposite Ms Podbury's residence there is a further municipal car park slightly smaller than that occupying the subject land.

16. Bryson Street is a very attractive, mostly residential street which at its northern end, where it interfaces with the Maling Road Business 1 Zone, takes on a more commercial appearance.

17. As noted by Mr Chow the Council's Retail Centre Policy at Clause 22.10 of the Scheme describes the Maling Road Shopping Centre as a small specialist retail centre which has a "limited range of convenience retail facilities but enjoys a metropolitan wide reputation for its village atmosphere, specialist antique shops, art and craft and eateries". I think this is a good description of this very attractive, small shopping centre.

18. The subject land was granted a planing permit in 1985 allowing two dwellings to be demolished and the land to be converted for use as a car park. A feature of this car park is its relatively small size and the generous landscaping that has occurred, including trees at intervals along the northern side, an abundance of shrubs abutting Ms Podbury's side boundary, well designed light poles and in particular, the use of a picket fencing along the frontage with beds of Lavender between the first car spaces and the picket fence. As municipal car parks go this is an attractive one, consistent with the overall attractive nature of the Maling Road Shopping Centre.

19. It is proposed to construct a single occupancy toilet for public use at the north-western corner of the Bryson Street car park and within the setback between the footpath and the first, most westerly car space. This area is currently surrounded on its northern and western sides by a low picket fence and is planted out with Lavender bushes.

20. As submitted by Mr Chow, the toilet would be of a modern, self-cleansing design, commercially known as an "Exeloo" and able to be used by either sex as well as by disabled persons. Permission is also sought to use the land for a public car park. This is because the existing car park permit would need to be amended if the public toilet was to be introduced and the Council determined that it would be more appropriate to seek a fresh permit for both uses than to attempt to amend the existing permit.

21. The toilet structure is a fully enclosed module which would be housed under a steel gable roof, supported by four posts. The roof is included for aesthetic purposes only because, as advised by Mr Chow, the toilet module is self-contained and weatherproof. The roof detailing reflects elements of a period architectural style including finials and decorative gable ends. The colour scheme of dark and light greens is a popular heritage choice.

22. Mr Chow described the operational features of the toilet:

"* The toilet will operate from sunrise to sunset, 7 days a week.

* An illuminated panel outside the toilet shows whether the toilet is in use.

* Entry to the toilet is gained by pressing a button, which activates an automatic sliding door. The door faces the footpath in Bryson Street.

* Upon entry into the toilet, lights are automatically switched on and "mood music" is played.

* Apart from the toilet bowl, there is a hand basin, grab rail for the disabled, folding baby change table, and mirror.

* Occupation of the toilet is restricted to 10 minutes. The toilet doors open automatically after 10 minutes. However, the occupant is reminded of this impending event after 9 minutes.

* Egress from the toilet is gained by pressing another button. This switches off the lights, turns off the music, flushes the toilet, and cleans and dries the toilet seat and hand basin. The tiled floor is automatically cleaned after every 5-10 operations, but this can be adjusted to suit the intensity of use.

* The toilet will also be manually cleaned on a regular basis.

* All wastewater is flushed into reticulated sewer for off-site treatment and disposal."

23. I was advised also that this "Exeloo" would be a first for Boroondara. There are however a number of such facilities constructed in public places in other municipalities one such example is in Bridge Road Richmond, within the kerb extension at the corner of Lennox Street. This was the subject of an earlier application for review to the Tribunal (see Davis and Others v Yarra City Council [1999] VCAT 1998/82477 unreported).

24. The subject land, as well as land to the north fronting Maling Road and the other two public car parks to the north-east and south-west referred to earlier, is zoned Business 1 under the Boroondara Planning Scheme. Land to the south and east, commencing at the Podbury property, is zoned Residential 1.

25. The subject land and all surrounding land - both residential and commercial - is also affected by a heritage overlay. The heritage place to be protected is described as Maling Road and Environs and is listed as HO145 in the schedule to the overlay.

26. The relevant purpose of the Business 1 Zone is:

"To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses."

27. A public toilet is not a land use term included in any of the Scheme's defined land use terms at Clause 74. I have noted already however that at Clause 67, the use public toilet is included within the general land use group referred to in that clause as "community facility". This land use description is consistent with the reference to community use in the purpose to the Business 1 Zone. I note also that a public toilet is not one of the exceptions included at Clause 62.02 within the descriptor of street furniture, although this descriptor includes a telephone booth.

28. As submitted by Mr Chow the Council erred on the side of caution and treated the proposed toilet as an innominate or undefined use for which a permit would be required in the Business 1 Zone. I note that this approach is generally consistent with that taken by the Tribunal in Davis v Yarra City Council although in that particular case the land was reserved for the purposes of a secondary road and the use public toilet was considered to be a use that was not consistent with the purpose of the reservation.

29. Within the Business 1 Zone, all buildings and works require a permit (see Clause 34.01-4) and such applications must be assessed against the decision guidelines to that clause which include:

"* The SPPF and LPPF, including the MSS and local planning policies.

* The movement of pedestrians and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.

* The interface with adjoining zones, especially the relationship with residential areas.

* The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land adjoining a road."

30. On land affected by a heritage overlay, a permit is required to construct a building or to construct or carry out works (see Clause 43.01-1). The relevant design guidelines for such applications include:

"* The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

* Any applicable heritage study and any applicable conservation policy.

* Whether the location, bulk form or appearance of the proposed building will adversely affect the significance of the heritage place.

* Whether the location, bulk form or appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place."

31. The area covered by Heritage Overlay 145 is an extensive one and relates to Maling Road and its environs. Mr Chow advised that the Council has heritage guidelines for Canterbury and that these recommend that new street furniture should be compatible with the precinct's significant development period. The guidelines also recommend that those elements of the public realm that contribute to the heritage character of the precinct should be retained and conserved. I have already observed that the Council's Heritage Adviser did not express any concerns about the subject proposal - describing it as "a small bland inclusion into (the) area".

32. It can be stated at the outset that both parties and the witnesses called by them did not dispute the fact that there is a need for a public toilet within the Mailing Road Shopping Centre, nor that the provision of such a facility would be inconsistent in any way with the Planning Policy Framework.

33. Where the parties parted company was in the choice of the subject land as the most desirable location for such a community facility.

34. It can be stated also that the siting of a public car park at this location was not in contest either. It must be said however that the applicants for review were strongly of the opinion that the "quid pro quo" as one might say, for the car park to have been located on this site, was that it was to be very attractively landscaped - which indeed it has been.

35. Central to Mr Canavan's submission was the fact that an important visual attribute of the car park would be foregone if the car park was to accommodate the centre's much needed public toilet. In his submission the existing, otherwise attractive interface, between the commercial area to the north and the residential area to the south would be detrimentally affected by the addition of a public toilet adjacent to the street frontage. He suggested that the detriment would be two fold. Firstly there would be a change in the appearance of the street due to the loss of landscaping and fencing and its replacement with the "small bland incursion" of the proposed toilet. Secondly there would be the addition of a use that in his submission is not something that can be described as a "pleasant activity" that can sit easily adjacent to residential properties.

36. As justification for his submission that the subject land was not a suitable location for this needed community facility, Mr Canavan also sought to lead evidence via Mr Holdsworth, with a view to demonstrating that other locations within the centre - primarily Theatre Place - were preferable locations.

37. It was Mr Holdsworth's opinion that the effective siting of public toilets requires a number of inter-related factors to be considered and that proper attention to these factors should ensure that new public toilets are located for "maximum safety and with high visibility, but are sympathetic yet unobtrusive elements of the public realm". His evidence pointed to the clear dilemma faced with these facilities which is to achieve on the one hand visibility, so that persons may be aware of their existence and feel confident of their security, but on the other hand not feel too much in the public view when using the facility. Mr Holdsworth suggested that in assessing the location and design of the public toilet the following objectives should be achieved:

"* The toilet is in a central location within its user catchment.

* The toilet is co-located with other attractors or destinations: such as drinking fountains, seats, shelters, ATM's, flower stalls, newspaper kiosks, etc.

* People are likely to be present in the vicinity to provide visual surveillance.

* The toilet is designed to reflect the architectural character of its surroundings.

* Approach routes and the immediate vicinity have clear view lines and are as free of entrapment opportunities such as corners of buildings, walls, fences, shrubbery, parked vehicles, etc. as possible.

* The toilet block is not hidden from view or disguised.

* Lighting in the vicinity is of a level higher than is general in public places.

* A minimum of two automatic toilets are located together to reduce waiting time (due to slow through-put of such facilities).

* Entries and wash-room areas are visible, and blind corners are eliminated (not applicable to automatic toilets).

* The surrounding area is maintained in a clean condition.

* Materials are low maintenance, of light colour and robust construction."

38. I find the location of the proposed toilet is consistent with the objective for such facilities to be within a central location. The proposed site is within 60m of the Maling Road and Bryson Street intersection which, on any reasonable analysis, is central to the shopping centre.

39. The proposed toilet is also co-located with other attractors namely the centre of the principal car park "belt" around the shopping centre's southern side. The co-location with the car park and within reasonable visual connection Mailing Road and on a principal pedestrian route into the shopping centre ensures, I believe, an appropriate degree of visual surveillance.

40. The toilet can also be said to reflect architectural elements of the surrounding heritage area and being located at the frontage of the car park, it is certainly not hidden from view or disguised. Neither is lighting a problem, the car park is well lit. The materials to be used are certainly low maintenance and of robust construction and there was no evidence that the surrounding area is not maintained. Indeed it is one of the most attractive Council car parks that I have seen. The evidence of Mr Basham was also that this locality has no reputation for significant vandalism. Indeed the only part of the centre identified by him as being prone to vandalism was adjacent to the alternate site suggested by Mr Canavan, namely to the rear of Theatre Place.

41. As already noted Victoria Police were of the opinion, which was an opinion shared by Mr Basham, that compared to other sites the subject site has less "entrapment" opportunities than others within the centre the only one identified is the Mews off the northern laneway which provides access to the newsagent. The suggestion to retain the picket fence along the northern boundary of the proposed facility is in an endeavour to introduce an obstacle between this possible "entrapment" opportunity and the toilet.

42. Indeed the only real objective listed by Mr Holdsworth which I find would not be met by this proposed facility is his suggestion that there be a minimum of two such toilets located together. I was not persuaded by Mr Holdsworth's evidence that this is an overriding objective to be met. It is relevant also that it seems incapable of being met anywhere else within the shopping centre and furthermore, that there seems to be no real need for such a dual facility given the small size of the centre. As noted by Mr Montebello, perhaps a dual facility on the St Kilda Foreshore - where Mr Holdsworth has had some degree of input, is more logical given the vastly greater numbers of persons attracted to the foreshore.

43. The evidence of Mr Basham was generally consistent with that of Mr Holdsworth and having regard to the opinions of both expert witnesses I find that in locational terms the subject site is an appropriate one for such a community facility.

44. Almost by way of an addendum to his evidence Mr Holdsworth suggested also that a further concern in relation to the suitability of the site for this community purpose was that "it involves the removal of landscaped areas and associated vegetation and picket fence which was specifically sited in the permit for the car park (so) that the amenity of the area would be retained by the provision of a landscape buffer along the Bryson Street frontage of the car park".

45. As submitted by Mr Montebello the fact that there is an existing permit which requires landscaping and that this proposal will result in the removal of part of that landscaping, is not a relevant matter for me to have regard to. This is not an enforcement order application. Rather it is a fresh application for a car park with less landscaping than previously permitted and what I must consider is whether such a car park incorporating such a needed facility, is an appropriate planning outcome at this commercial - residential interface. In a similar vein it is not for this Tribunal to determine whether there are other as or more appropriate sites for this much needed community facility. Rather I must decide whether this site is a reasonable one having regard to all relevant matters for consideration.

46. Whilst I acknowledge that the chosen location will result in the partial loss of a landscape feature which, in concert with the other landscaping elements of this car park, contribute to it being a most attractive public facility. I have not been able to be persuaded that it constitutes so great a loss as to warrant the refusal of a permit. In Mr Basham's opinion there is no safety reason for not retaining some form of landscaping around the sides and rear of the proposed structure. He suggested a prickly low level shrub cover, which would keep people located at some distance from the rear of the structure and therefore less able to be concealed. Such planting could, I suggest, partly address the loss of the existing Lavender bushes. It is also proposed to retain and extend the picket fencing along the northern side of the proposed structure. At the same time, the remainder of the landscaping is to be retained and in particular that which abuts Ms Podbury's residence - which is more extensive than that which is to be lost by the proposed structure. At the same time also it is relevant that there is no direct outlook from the immediate residential properties towards the proposed toilet. Indeed its entry faces towards the shopping centre rather than to the residential area. All in all, whilst there will be a loss, I find that it would not be so unreasonable a loss as to suggest that a permit should be refused.