Victorian Civil and Administrative Tribunal|2011-06-16

PosCorp Pty Ltd v Frankston CC [2011] VCAT 1140 (16 June 2011)

Section 77 of the Planning & Environment Act 1987. Frankston Planning Scheme. Residential Building. Use. Car parking. Amenity.

PosCorp Pty Ltd v Frankston CC [2011] VCAT 1140

The proposal is to use an existing building for a boarding house. The building exists on the land and currently provides crisis accommodation for 12 persons in 10 rooms. This use was established without the need for a planning permit. It is proposed to divide two of the rooms into separate rooms that will create a total of 12 rooms.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.01-1 A permit is required to use land for Accommodation that includes a Residential Building. A boarding house is included in the definition of a Residential Building.

Clause 52.06-1 A permit is required to reduce the number of car spaces required in the table to this clause.

Key policies and provisions in the Frankston Planning Scheme

Clauses 10, 16 and 18 of the State Planning Policy Framework.

Clauses 21.02 and 21.12 of the Municipal Strategic Statement.

Clauses 32.01, 52.06, 52.22 and 65 from the particular and general provisions.

The review site is located on the south east corner of Long Street and Lardner Road, Frankston. The land is rectangular save for a splay to the corner and has frontages of 16.84 metres to Lardner Road and 23.78 metres to Long street and a site area of 528 square metres.

Existing on the site is a two storey building constructed in 2010 that provides crisis accommodation for 12 people in 10 rooms. The building is setback 9 metres from Long Street and 2 metres from Lardner Street. A double car port located at the eastern end of the building is accessed from Long Street.

Land to the east, north and south is residential in nature and comprises a mix of detached dwellings and multi unit development. Opposite the site, on the west side of Lardner Road, is a church with the Monash University further to the west. Leawarra railway station is located approximately 300 metres to the north.

I inspected the review site and surrounds on 7 June 2011.

A two storey building was constructed on this corner site in Frankston in 2010 and has since been used for crisis accommodation for up to 12 people in 10 rooms. A proposal to construct two internal partition walls in the double rooms brings the total number of rooms to 12 changing the use, in term of the Frankston Planning Scheme, to a Residential building. A Residential Building that includes a boarding house) is a use subject to a permit in the Residential 1 zone.
Frankston City Council (the 'Council') opposes the grant of a permit. In addition to having concerns about process, the Council considers the proposal will generate negative amenity impacts to neighbours, result in unsatisfactory internal amenity to future residents and provide inadequate onsite car parking.
The respondent objector shares Council's concerns about the process and the way that has avoided an assessment of built form and consideration of neighbourhood character. In addition concerns about the adequacy of onsite parking are raised.
The applicant conversely submits that the current proposal does not change the use as the building will continue to be used for crisis accommodation, will not increase the number of persons accommodated and will have no adverse amenity impacts or generate additional car parking requirements. Furthermore, it is the applicant's submission that there has been no abuse of process with all requirements of the Scheme met.
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented, the applicable policies and provisions of the Frankston Planning Scheme (the 'Scheme') and inspected the review site and surrounds, I have decided a permit should be granted. My reasons follow.
In reaching my decision I have considered five key questions as follows:
- Is the process by which the proposal has proceeded acceptable?
- Is the proposal supported by policy?
- Is adequate car parking provided for the use?
- Will there be unreasonable amenity impacts arising from the proposed use?
- Is there adequate internal amenity provided for residents?
I address each of these questions in turn but first consider a preliminary matter as to whether a permit is required for the internal walls proposed.

Prior to the hearing, the applicant flagged a legal question as to whether planning permission is required for the internal alterations proposed. I heard submissions on this matter at the start of the hearing that effectively resulted in an agreed position between Council and the applicant that there was no planning permit required for the internal alterations. There was no objection to my determining this question of law.[2] I concur with that agreed position for the following reasons.
Accommodation is a Section 2 use in the Residential 1 zone. The definition of Accommodation includes Residential building and the definition of Residential building includes Boarding house. This means that a permit is required for the use.
Under the Residential 1 zone provisions, Clause 32.01-6 specifies that a permit is required to construct a building or construct or carry out works for a Section 2 use. However, there are exemptions to this requirement under Clause 62.02 of the Scheme.
Clause 62.02-2 specifies that any requirement in the Scheme relating to the construction of a building or the construction or carrying out of works does not apply to the internal rearrangement of a building or works provided the gross floor area of the building or the size of the works is not increased and the number of dwellings is not increased. I am satisfied that there is no increase in the gross floor area or the number of dwellings as a result of the proposal and that no planning permit required for the internal works proposed. As there is no permit required for development, the provisions of Clause 55 of the Scheme are not a relevant consideration.

Council urged the Tribunal not to condone the process adopted by the applicant. In Council's submission the applicant has undertaken a development under the guise of an 'as of right' development to deprive the decision makers the opportunity to consider the whole development. In Council's view, this process undermines the integrity of the planning system and should not place an applicant in a more advantageous position than if they had sought planning permission for the whole use and development. Mr Wong, for Council, submitted that this case in many ways is similar to cases where developers sought to construct dual occupancies by stealth such as those dealt with in Jurkic v Manningham CC.[3]
The combination of two very different procedures, in Mr Laxon's submission, is an 'abuse of process' and results in neighbours and the Council being deprived of rights. In particular Mr Laxon was concerned about the contemporaneous approach that saw the construction of the building with '10 habitable rooms' thereby avoiding the need for a planning permit but included two rooms with two bathrooms and two kitchens clearly indicating future intentions. The current application that will result in 12 rooms, if approved, was made within three weeks of the completion of the building. In Mr Laxon's view this series of events suggests a clear intention to circumvent the fair consideration of the building and the use.
Ms Patterson's submission was that the use and development as existing is compliant with the Scheme. The increase to 12 rooms resulting from the proposed internal walls brings the use into the definition of residential building which is subject to permit in the Residential 1 zone and the appropriate permit has been sought.
My findings on this matter are as follows. I was advised by Council that the building on the land was lawfully constructed pursuant to a building permit and then used for crisis accommodation in compliance with Clause 52.22 of the Scheme. The change in the number of rooms now proposed results in the use becoming a residential building (as defined in the Scheme) and triggers the need for a permit. The applicant has appropriately sought a permit for the technical change of use that results from the increase in the number of habitable rooms and for a reduced provision of car parking.
I do not find that there has been any 'abuse of process' in this matter. There was no evidence or even any suggestion that the building or the use currently on the land had been constructed or commenced illegally nor was any contravention of the Scheme identified. These are quite different to circumstances to those in Jurkic where the matter involved unlawful development.
The Scheme clearly allows for crisis accommodation without a planning permit subject to certain conditions. The applicant has legitimately undertaken a development and commenced a use within the parameters set by the Scheme. I understand that Council and Mr Laxon have concerns about the built form and other matters and the absence of an opportunity to ensure assessment of such matters via the Scheme. This is a matter that should be pursued as a change in Scheme provisions if considered appropriate.

Council's grounds of refusal for this application included:

The proposed development is inconsistent with the objectives of the State and Local Policy Framework of the Frankston Planning Scheme, including:

Although Mr Wong did not pursue this ground of refusal in his submission on behalf of Council, I think the policy context should inform my decision.
The current use of the building is to provide accommodation for 12 people who generally need immediate accommodation on an emergency or crisis basis. This use will continue with the 12 persons accommodated in 12 rooms instead of 10 rooms. I find policy support for provision of this type of accommodation in the State and local policy[4] of the Scheme. This includes policy that seeks to increase choice in housing type, tenure and cost to meet the needs of households, to provide a diversity of housing, to encourage the establishment of crisis accommodation in residential areas and to encourage the provision of housing that provides for special housing needs of Frankston City residents.

Council submitted that the four car spaces provided are inadequate for the proposed use in terms of number pointing out that the Scheme would require 12 spaces. In addition, it was his submission that the tandem arrangement would be unworkable and impractical given there is multiple tenants in the building.
Mr Laxon submitted that realistically there are only two useable spaces located within the site. He provided a photograph of a car parked adjacent to the driveway but protruding over the footpath as a demonstration of how the impractical tandem provision is managed. It is Mr Laxon's submission that a reduction of car spaces from 12 to effectively two is inappropriate and inadequate for 12 occupants and their visitors and will result in negative impacts to onstreet parking. This is of particular concern given that onstreet parking is already in high demand and subject to restrictions due to the proximity of Monash University. Mr Laxon raised concern about increased traffic flows in Lardner Road which already carries relatively high volumes due to motorists seeking to avoid congestion elsewhere.
Ms Patterson, for the applicant, argued that demand for parking is low due to the circumstances of the residents and pointed out that Council's traffic engineer indicated that the car parking provision proposed appears to be adequate. Ms Patterson referred to the car parking ratio accepted by the Tribunal in a boarding house proposal in Brunswick as a relevant factor in my consideration. In that case, Balmer v Moreland CC[5] Member Naylor accepted, that based on analysis of six boarding houses, car ownership rate is a maximum of 0.22 cars per lodging room.
The table to Clause 52.06-1 specifies 1 car space per lodging room which would require a total of 12 car spaces. A permit can be granted for a reduction in the number of car spaces and decision guidelines for consideration of a reduction are provided. Having regard to those guidelines I am satisfied that a reduced parking provision is acceptable for the following reasons.
I agree with Council's traffic engineer that the parking demand for this type of use is low. Whilst I acknowledge Mr Laxon's submission that I cannot translate Tribunal findings on parking needs for a boarding house in Brunswick to a similar use in Frankston, I nevertheless consider the car ownership rate identified in that case adds weight to the view that parking needs are likely to be low.
The review site is within walking distance of Leawarra railway station and bus routes along Moorooduc Highway allowing for public transport access to various services and facilities including the Frankston Activity Centre.
Whilst I accept there is high demand for daytime on street parking in the area due to the proximity of the site to Monash University and there are a number of areas where parking restrictions apply, I am not persuaded that there is no availability of on street parking within reasonable proximity of the site. Furthermore I consider the use is likely to generate greater demand for on street parking in the evenings and weekends, times that do not coincide with the generation of parking demands by the nearby Monash University.
I agree that the tandem parking arrangement is not ideal for a use with multiple tenancies but I do not find this fatal to the application. I think where use of the tandem spaces is required, residents can make arrangements that will allow access. In reaching that view, I am influenced by the operation of the use with 12 residents for approximately 1 year without any record of complaint to Council regarding overflow car parking. The instance of a car parked partly over the footpath of Long Street referred to by Mr Laxon is acknowledged. However I was provided with no evidence that this is a regular occurrence and in any event there are enforcement procedures to ensure cars are not parked illegally.

Communal open space is provided on the south side of the building and Council is concerned that resident use of this space will result in adverse amenity impacts to the adjoining neighbours due to noise. The use of this space is likely to be greater, In Council's submission, due to the absence of any private open space for individual rooms.
It is my view that residents using the communal open space are unlikely to generate noise beyond what would be expected in a residential area and thus impact on amenity of adjoining properties will not be unreasonable. It is relevant that the current operation of the use has not generated complaints to Council regarding noise.

The lack of private open space for individual rooms was criticized by Council as presenting a poor standard of internal amenity. The provision of balconies for each room is a suggested solution to this concern.
Ms Patterson submitted that the applicant, who has provided crisis accommodation since 2001 and currently provides accommodation for 70 people across 7 properties, advises that residents rarely use communal spaces. Furthermore, it was Ms Patterson's submission that the size of each room that includes a private kitchen and bathroom provides the privacy and security sought by residents of this type of accommodation. She pointed out that copies of the plans for the building were provided by the Registered Accommodation Association of Victoria to the Government Rooming House Task Force as examples of best industry practice.
Each room is of reasonable size, is provided with access to daylight, an outlook to the street and private bathroom and kitchen facilities. The two additional rooms proposed resulting from internal walls would have these same attributes. The absence of private open space for each dwelling I consider acceptable given there is communal space. I note that the provision of balconies to each room, whilst providing an outdoor area exclusive to each resident, would not be private in terms of visibility since they would face the street. I am satisfied that the internal amenity is acceptable for the use proposed.

Council circulated draft permit conditions[6] that were discussed at the hearing. I have generally adopted the suggested conditions subject to some changes I record as follows.
Condition 4(b) relating to landscaping requires improvements to the 'existing garden beds' facing Lardner Road. There are some trees planted along this frontage but no garden bed. A change is proposed to this condition to require additional shrubs to provide lower level screening of the building.
Condition 7 requires preparation of a site management plan for approval by Council. The applicant opposed this requirement advising that the operator currently has a manager available by telephone on a 24 hour 7 day per week basis and neighbours are regularly provided with an updated contact number. Ms Patterson pointed out that the successful operation of the accommodation for 12 months without complaint suggests that management is not an issue. Furthermore, the requirement to have an onsite manager would result in the loss of a room for crisis accommodation.
I consider the standard of management is a relevant consideration and whilst I accept the current operator is experienced and has been successful in management of the 10 room facility, I agree with Council and Mr Laxon that management needs to be addressed in the long term. The permit for the boarding house runs with the land and is not personal to the current operator. I consider it appropriate to have enforceable requirements on site management matters for the long term use and will retain the condition requiring preparation of a site management plan. I find the requirement for an onsite manager unnecessary but consider Condition 8 that requires display of a manager contact number is appropriate.

I find there is strong policy support in the Frankston Planning Scheme for providing boarding house accommodation that in this case will be used for crisis accommodation. I am satisfied that the 12 rooms proposed will result in no increase in the number of residents onsite and is an acceptable outcome. I consider the parking provided on site is adequate and the use will not result in unreasonable amenity impacts to nearby residents. I will set aside Council's decision and direct that a permit be granted.

Before the use starts, amended plans to the satisfaction of the Responsible Authority must be submitted to be 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 three copies must be provided. The plans must be generally in accordance with the plans submitted but modified to show:
1. A landscaping plan in accordance with condition 4 of this permit.

The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
The number of persons residing within the building must not exceed twelve (12) persons.

Before the use commences, a landscape plan prepared by a suitably qualified person must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

The areas set aside for landscaping 2. Additional planting to the Lardner Road frontage that will provide screening to the building.

The provision of a designated area with seating for residents.

A survey (including botanical names) of all existing vegetation to be retained and/or removed; 2. Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary; 3. Details of surface finishes of pathways and driveways, retaining walls and areas of cut and fill; 4. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant; and 5. A planting theme of a minimum 60% indigenous (Heathy Woodland) and 20% native species within each plant group.

Landscaping as shown on the endorsed landscape plan must be carried out and completed within 3 months of the issue of the permit, to the satisfaction of the Responsible Authority.
All landscaping works shown on the endorsed landscape plans must be maintained to the satisfaction of the Responsible Authority.

Within one month of the date of this permit, a Site Management Plan must be submitted for approval to the satisfaction of the Responsible Authority. Once approved the Site Management Plan will be endorsed and form part of this permit. The use must not commence until the Site Management Plan is approved and endorsed. The management plan must address (but is not limited to) the following:

The name and contact details of the person responsible for the day to day management of the premises; 2. Rubbish storage and collection;

A process or procedure that will be available to neighbours in the event that they need to contact the Manager/caretaker in relation to some aspect of the operation of the use
The telephone number or numbers with 24 hour access to the operator, manager and/or caretaker of the residential building must be displayed on the front door entry so that any neighbouring resident can register a complaint or address any other matter arising from the use of the site.

The amenity of the area must not be detrimentally affected by the use through the:-

Transport of materials, goods or commodities to or from the land; 2. Appearance of any building, works or materials;

Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

Presence of vermin; 2. Others as appropriate; or 3. In any other way.
All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

Car spaces must not be used for any other purpose other than the parking of vehicles in association with residents of and visitors to the land, to the satisfaction of the Responsible Authority.

This permit will expire if one of the following circumstances applies:
1. The use is not commenced within two (2) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

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

[2] Pursuant to Clause 66(1) of Schedule 1 to the Victorian Civil and Administrative Act 1998, a member who is not a judicial member or a legal practitioner may determine a question of law unless the parties that are present at the hearing of the proceeding disagree.

[4] At clauses 16.01, 16.02 and 21.04 of the Scheme.

[5] P1249/2009 Balmer Pty Ltd v Moreland CC (29 September 2009) unreported

[6] A revised set were circulated by Mr Wong at the hearing that reflected the agreed position that there was no permit trigger for development.

PosCorp Pty Ltd v Frankston CC [2011] VCAT 1140

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

PosCorp Pty Ltd v Frankston CC [2011] VCAT 1140 (16 June 2011)

Parties