With respect to permit application PLP2004133, the Responsible Authority's decision to refuse to grant a permit is affirmed.

The Responsible Authority is ordered that no permit be issued in accordance with this determination pursuant to section 85 of the Planning and Environment Act 1987.

1 This is an Application under section 77 of the Planning and Environment Act 1987 to review the decision by the Ballarat City Council ('the Council') to refuse to grant a permit in application no. PLP2004133 for a medical centre at 24 Ascot Street North, Ballarat.

2 The permit application was lodged with the Council on 1 March 2004. The application was advertised to adjoining and nearby property owners and occupiers and nine objections were received. Mr Sullivan summarised the grounds of the objection as:

* Application is contrary to the zone and overlay provisions

* Loss of neighbourhood and residential character/amenity

3 Mr Sullivan advised that a mediation meeting was conducted on 5 May 2004, however many of the concerns related to existing problems in the area and dissatisfaction with the Council's approach to these, rather than specific concerns relating to this application.

4 The Council considered the application at a Council Meeting on 9 June 2004 and resolved to issue a Notice of Refusal to grant a permit on the following grounds:

1. The proposal does not accord with the purpose statements of the zone in that it does not demonstrate how it will meet the needs of the local community.

2. The proposed use will result in an unacceptable loss of amenity to adjoining and nearby residences.

3. The proposal is contrary to the policies contained in Clause 22.09 of the Scheme.

5 This Application for review of the Council's decision was received by the Tribunal on 1 July 2004 on grounds that essentially refute the grounds of refusal.

6 Mr Grubb sought leave to amend the name of the Applicant for Review, Development Resolution Services, to that of the permit applicant, Graeme Reese c/- Development Resolution Services. There being no objection, I granted leave for the name of the Applicant for Review to be amended to "Graeme Reese" pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

8 The submissions, photographs and other documentation tabled during the course of the hearing have been taken into consideration.

9 Mr Grubb queried whether I would undertake a site inspection. I indicated that I did not intend to inspect the site. Photographs, an aerial photograph, and other documents have been provided to me. I advised the parties that in considering the key issues associated with the application (as contained in the reasons for this decision), an inspection of the site would not further assist me. Neither party objected to this.

10 The review site is located on the south east corner of Ascot Street North and Kangaroo Place. It is located in an area comprising single storey dwellings from predominantly the Victorian and Federation-Edwardian eras.

11 The site has a western frontage to Ascot Street North, a northern frontage to Kangaroo Place and an eastern (rear) frontage to Anticline Lane. It has a width of 10.3 metres, a length of 50.6 metres and an overall area of 521 square metres.

12 The site currently contains a single storey brick Victorian dwelling with a small garden shed and carport at the rear. Vehicular access is provided via a gate to Anticline Lane.

13 Kangaroo Place and Anticline Lane are both laneways providing access to the surrounding hospital and medical centre car parks.

14 To the west and south of the review site are residential dwellings.

15 To the east is the Ballarat Base Hospital and associated car parking areas and further north east is the St John of God Hospital.

16 To the north, on the opposite side of Kangaroo Place, are three medical centres with frontage to Mair Street. Mr Sullivan provided the following description:

* 1011 Mair Street: This site is known as the Mair Street General Practice and consist of 7 general practitioners, 7 support staff. The site has 13 on site parking spaces and is open all hours;

* 1013 Mair Street: This site is the practice of Dr Anderson and consists of 1 general practitioner, 3 support staff. 4 parking spaces are provided on site;

* 1015 Mair Street: This site is a chiropractic centre and has 8 on site parking spaces.

17 It is proposed to use the existing dwelling as a medical centre with 2 general practitioners and 3 other staff on the premises at any given time. The medical centre is proposed to operate between 8.00am and 7.00pm Monday to Friday, between 8.00am and 1.00pm Saturday and at other times for emergencies only. Ten car spaces are to be provided at the rear of the existing dwelling with access from Kangaroo Place.

18 Mr Sullivan submitted that the building works associated with the proposal are:

* Removal of a 'colorbond' boundary fence in order to allow vehicles to enter the proposed car park.

* Extend existing carport by approximately 2 metres.

* Construct a disabled access ramp which will involve a modification being made to the back door.

* Modify existing landscaped area in order to allow for safer use of the proposed car park by incorporating an internal path to the back door.

19 The review site is contained within a Residential 1 Zone pursuant to Clause 32.01 of the Ballarat Planning Scheme ('the Planning Scheme'). The purpose of this zone includes:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

20 A permit is required to use the review site for the purpose of a medical centre.

21 There is an interim Heritage Overlay (HO164, Inner Urban Interim Precinct) that affects the review site and surrounding land to the north, west and south. A permit is required for demolition, to construct a building or to construct or carry out works.

22 The site and surrounding land to the south and west is affected by Design and Development Overlay DDO8 (Urban Character Area 14) and its design objectives include retaining and enhancing the dense pre-World War 2 residential development and associated back lanes. A permit is required to construct a building or construct or carry out works.

23 Mr Sullivan highlighted Clauses 11, 14, 15.01, 15.11 and 18.06 of the State Planning Policy Framework as being relevant to this application, and in particular the general implementation of Clause 18.06-2 for Health facilities that includes:

* Planning and responsible authorities should facilitate 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.

* Consideration should be given to planning public and private developments together and to include some degree of flexibility in use.

* Hospitals and other large health service facilities should be located in areas highly accessible to public and private transport.

* Adequate car parking facilities should be provided for staff and visitors.

24 In regard to the local planning policy framework, Mr Sullivan highlighted relevant sections of the Municipal Strategic Statement. Clause 21.17 contains a number of key issues influencing the future of Ballarat including the location of medical facilities and the loss of urban character in residential areas within the older central areas of Ballarat.

25 Clause 21.10-4 encourages health related services to locate within the Ballarat Central Business Area where they serve the region, and within neighbourhood areas where they have a local focus.

26 Clause 21.11 on residential development includes the following statement:

Loss of any significant existing housing stock by conversion or development for non residential issues will generally be discouraged, except in key areas where conversion is desirable.

27 Mr Sullivan submitted that the review site is not in a 'key area'. He referred to the local planning policy for Health Facilities at Clause 22.09. It focuses on the areas surrounding the Ballarat Base and St John of God hospitals and that includes the following statement in the policy basis:

While the residential character of these areas has generally been retained, their residential amenity has been significantly eroded.

* The importance of the medical profession is recognised as a major contributor to the Ballarat and regional economy.

* General practitioners (especially single practitioners) be encouraged to locate in neighbourhood centres or in buildings adjacent to such centres, particularly those in poorly serviced residential neighbourhoods.

* Medical practitioners be encouraged to locate within the Ballarat Central Business Area particularly where the practitioner is serving more than a single neighbourhood.

* The further clustering of medical facilities within the vicinity of the hospitals be discouraged, particularly where this results in the loss of residential land uses in the area.

* New medical facilities be permitted to locate within the vicinity of the hospitals where these are to be on the east side of Drummond Street between Sturt and Webster Streets on the north side of Mair Street between Drummond and Little Raglan Streets.

* No new medical centre to be permitted to establish on any land included in the Residential Zone and being within the area bounded by Eyre Street, Ripon Street, Wendouree Parade, Mill Street, Loch Avenue, Creswick Road, Claxton Streets, Davey Street, Mair Street and Lyons Street (as shown on Map 1 to Clause 22.09). This does not apply to land on the east side of Drummond Street between Sturt and Mair Streets and land on the north side if Mair Street between Drummond and Little Raglan Streets or to purpose build medical centres located with the hospital grounds.

* Any application for medical centres must be assessed using the Medical Centre Code of Practice - October 1995.

29 Mr Sullivan advised that the application generally meets the tests outlined in the Code of Practice but he submitted that this assessment should be given minimal weight as the Code is out of date.

The provisions of this policy which discourage clustering of medical centres in the vicinity of hospitals, and which provide that no new medical centres be permitted to establish within a defined area, have no effect after November 30, 1999.

31 The review site is within the defined exclusion area depicted on the map at Clause 22.09 and I note the Council's advice that the expiry provisions apply only to dot points four and six in the policy.

32 Mr Sullivan explained on page 13 of his submission:

In light of the sunset clause within this policy, Council prepared a planning scheme amendment C27 to the Ballarat Planning Scheme. A panel was appointed by the Minister for Planning on the 22nd of September 2000 to hear and consider submissions in relation to amendment C27 to the Ballarat Planning Scheme.

Amendment C27 attempted to include a local planning policy that replaced the existing policy which expired on 30th November 1999 and incorporate recommendation 5 of the Health, Medical and Professional Land Use Strategy Plans, Oct 1995. The panel assessment raised the inherent contradiction in Council's views to the promotion of medical and health facilities with the protection of the residential amenity and urban character. The panel highlighted that the exclusion area is a prohibition and that a policy was needed on the direction of medical centres. The panel criticised the mechanism of the amendment as it set up a prohibition, which was contrary to the Practice Notes on Writing a Local Policy and Incorporated Reference Documents, and suggested a local policy is the only mechanism for controlling use in the Medical Exclusion Zone. The panel recommended the amendment be abandoned and that an economic study be undertaken to clarify the economic forces and to provide a sound strategic base for the medical and allied health sector. The study has commenced however is still in the consultation stage at present.

33 Having considered the submissions presented, I am of the opinion that the decision of the Council to refuse this application should be affirmed. The key issue for this proposal is the appropriateness of a non-residential use in a Residential 1 zone pursuant to the local planning policy framework. However, before I deal with this, there are a few other observations I wish to make in regard to this proposal.

34 Mr Sullivan advised that in 1998, the municipality was host to approximately 128 medical centres including 37 within the land bounded by Sturt, Lyons, Mair and Drummond Streets. I note that the policy at Clause 22.09 also states that a further 37 medical centres were located one residential block to the north, south, east and west of the land mentioned above. An Economic Development Strategy adopted by the Council late last year predicts that the demand for medical services will increase by 28% over the next decade.

35 The Council was critical of the fact that this proposal is speculative. Mr Grubb agreed that the proposal is speculative, as are many planning proposals. I agree with Mr Grubb that many planning proposals, including residential developments, can be speculative and this is not an appropriate reason to refuse a planning application.

36 Mr Grubb stated that there is no tenant for the medical centre at this stage, but advised that there is now interest from specialists rather than general practitioners. The application sought is for two general practitioners as Mr Grubb described this as the most intense type of medical practice. He explained that general practitioners service the community as a whole whereas specialists service a discrete type of patient and their consultations are generally by appointment.

37 A general practice medical centre has the potential to have a constant flow of patients throughout the day as patients may be seen without appointments. As such, I agree that a general practice is likely to be heavily utilised and is therefore likely to be the most intense type of medical practice for consideration for approval.

38 The proposal complies with the Planning Scheme as it provides 10 car spaces, which is required in Clause 52.06 for car parking for a medical centre. The 10 car spaces are to be provided at the rear of the review site. Mr Sullivan expressed concern about the patients parking in the car park and needing to walk along Kangaroo Place to access the medical centre. As a result, Council is of the view that the medical centre should include the following alterations:

i A rear patient access to the medical centre from the car park.

ii Construction of a disabled ramp at the backdoor so that the front façade of the house remains intact and in keeping with the objectives of the Heritage Overlay and the Design and Development Overlay.

iii Either demolition or extension of the carport dependent upon the orientation of the car spaces.

v Removal of part of the brick garden to provide a pedestrian path from each of the car spaces to the back door entry.

vi Construction of a shelter over the back door entry.

vii Erection of a fence along the Anticline Lane frontage.

39 Mr Grubb submitted that the minimal works to the existing house itself would allow for it to be easily converted back into a dwelling in the future. Whilst I agree that that is possible, I find that the alterations required at the rear of the property will change the rear appearance and character of the review site significantly, from a residential to a commercial character and appearance.

40 On the opposite side of Kangaroo Place are three properties fronting Mair Street that are all used as medical centres. The rear of these properties all contain car parking that is directly accessible from Kangaroo Place, giving the northern and eastern side of this lane a very commercial appearance. In contrast the southern side of Kangaroo Place (the review site) and the western side of Anticline Lane has the appearance of back gardens with residential rear access. This is a character which I feel will be detrimentally affected if a further `commercial' activity is permitted on the southern side of Kangaroo Place.

41 In regard to the local planning policy framework and the zone provisions, I note that Mr Grubb relied upon the purpose in the Residential 1 zone of the Planning Scheme that allows for:

...some complimentary non-residential uses that serve the communities needs to be established subject to planning approval. This centre will certainly provide a service that responds to the needs of the local community.

42 I was provided with no evidence that this medical centre will provide a service for the needs of the local community. The policy at Clause 22.09-3 states that general practitioners are encouraged in neighbourhood centres, particularly "in those poorly serviced residential neighbourhoods". Given the number of medical centres in this community, including the general practitioners already operating at 1011 and 1013 Mair Street, I am of the opinion that this neighbourhood can hardly be described as poorly serviced.

43 Both parties made mention of a recent decision (Hargreaves v Ballarat CC [2004] VCAT 980) by Senior Member Monk for a medical centre for two specialists at 5 Talbot Street North, Ballarat. I note that this site is located one street further west of the review site. In that case, the Tribunal found that the residential usage of Talbot Street North warranted retention in as intact a form as possible, as the benefits of further non-residential uses in this community were outweighed by the loss of the community the non-residential uses are intended to serve.

44 I agree with this decision. Whilst the exclusion zone in the local policy has lapsed, the intent of the policy remains clear. Its objective is to provide for the location of new health and medical facilities and the policy basis highlights the residential amenity of this area has been significantly eroded.

45 The number of medical centres already located in this area could not be more evident than on the three properties fronting Mair Street, immediately opposite the review site on the northern side of Kangaroo Place. In my opinion, both Kangaroo Place and Anticline Lane provide an existing and clear demarcation line between the residential and non-residential uses in this area. A demarcation line that, in my opinion, should be retained.

46 Mr Grubb referred to a facsimile from the Ballarat & District Division of General Practice Inc. that stated there is a need for additional general practitioners in Ballarat. However, this statement applied to Ballarat as a region, not just the area immediately surrounding the hospitals. Whilst I accept that there may be a need for more general practices, I was not provided with any evidence to suggest that such practices must be located within the immediate surrounds of the hospitals.

47 I agree with the decision of Senior Member Monk, that streets like Ascot Street North and Talbot Street North have reached their capacity to absorb limited non-residential uses, particularly medical centres, and it is arguable as to whether these medical centres are serving the `local' community needs. This area is zoned Residential 1 and its principal purpose is to provide for residential development. Therefore, I am of the opinion that it is important that the residential community in this inner urban neighbourhood of Ballarat is retained.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.