Royce v Bayside CC [2006] VCAT 1523

The decision of the Responsible Authority is varied. A permit is granted for use of 93 New Street, Brighton, for a display home and associated car parking and advertising signage, generally in accordance with endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. 2005/828 issued by the Responsible Authority on the 11 April 2006 but modified by:-

1. For Condition 1a):

Replacing the words "11 November 2006" with "11 November 2005".

2. Inserting a new condition to Condition 1 as follows:

"e) The content and/or wording of Sign 1 amended to include direction to the customer parking area."

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Dr. Peter Joyce & Mr. Gordon Lefevre appeared in person.

Ms. Jennifer Bowdern, Legal Support Officer, and Ms. Fiona Houlihan Town Planner, City of Bayside.

Mr. Scott Stewart, Solicitor, Rigby Cooke. He called Ms. Charmaine Dunstan, Traffic Engineer to give evidence.

1 This is a Sec. 82 review under the Planning and Environment Act 1987 against Council's notice of decision to grant a permit to use land at 93 New Street, Brighton, for a display home. This notice was issued on 11 April 2006.

2 The notice of decision to grant a permit was subject to a number of conditions, including requirements to modify the proposal to widen the crossover to the car parking area to 6 metres, deletion of up-light/flood light and flags, limitation of hours of operation to between 1:00pm and 5:00pm during open days (not including Thursdays and Fridays), the basement garage to be used for staff parking, removal of the car park and crossover when the permit lapses, and a three year time limit.

3 The review site is located on the west side of New Street and at the corner with Kinane Street, Brighton. This section of Kinane Street terminates at the Sandringham Railway Line to the west.

4 A two storey single dwelling is currently under construction on the site.

5 Single dwelling development adjoins the site, with a two storey single dwelling under construction to the west at No. 30 Kinane Street and a contemporary two storey dwelling to the south in New Street. There are two multi-unit developments in Kinane Street.

6 The proposal is to use the site as a display home and associated car parking and signage.

7 The display home is the two storey dwelling currently under construction. This dwelling includes a basement which provides four parking spaces, a cellar, workshop, and rain water tanks.

8 A car parking area providing five car spaces at 90o to a driveway is located on the side off Kinane Street.

9 The proposed signage is for two signs, one at the northeast corner of the site and another at the entrance to the car park. Proposed flags on the submitted plans are required to be deleted by Condition 1d).

10 The review site is in the Residential 1 Zone of the Bayside Planning Scheme ("the Scheme") under which a permit is required for the use of a display home.

11 Properties in New Street and Kinane Street are in the Residential 1 Zone. New Street is in Road Zone Category 2.

12 The site is affected by the Design and Development Overlay (Schedule 2 Building Height Control - Inland Areas). This overlay has no impact on the proposed use. The existing dwelling under construction meets the requirement of this overlay.

13 Pursuant to Clause 52.06 (Car Parking), the proposal is required to provide five car spaces.

14 Other relevant provisions and policies of the Scheme are Clauses 11, 12, 14, 16.02, 19.03, 21.05 (Housing) and 65.

15 At the hearing, Council spoke to a written submission. Dr. Joyce and Mr. Lefevre spoke to a PowerPoint presentation and a written submission. Mr. Stewart made an oral submission. Ms. Dunstan, called to give traffic evidence, was made available for cross-examination.

16 At the conclusion of the hearing, Decision was reserved. The Tribunal indicated that it would inspect the site and has done so on 21 July 2006. It also observed parking behaviour in Kinane Street and traffic and pedestrian behaviour in New Street during the afternoon school finishing time.

17 Having heard the submissions and evidence, inspected the site and reviewed the Scheme, my finding is that the proposal is not contrary to the provisions of the zone. It provides adequate on site parking in accordance with the requirements of the Scheme. It would not cause a level of traffic and pedestrian impact that is not within the capacity of the local street system.

18 The Residential 1 Zone, the most commonly used residential zone in urban areas, provides for some non-residential uses. One of the purposes of the zone is:

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

19 The key is whether a site is an appropriate location for the proposed non-residential use and whether it serves local community needs.

20 Council's submission is that the site is an appropriate location. New Street is a Category 2 Road which carries a high volume of traffic and serves as a thoroughfare. Additional traffic generated by the proposed development will not be unreasonable. The site enjoys high exposure because of its corner position. Its decision to support the proposal involves imposing permit conditions to regulate the use and limit the time for the display home: 1:00 pm to 5:00 pm for the week (not open on Thursdays and Fridays), and permit to expire in 3 years. The three year time limit is absolute and not extendable except with a fresh application.

21 Council is currently in the process of preparing a planning scheme amendment (C50) to introduce a policy to guide non-residential development in residential area. It is anticipated that main or busy roads will be identified as appropriate locations.

22 In my view, and as far as location for non-residential development in residential areas is concerned, it makes planning sense to locate such uses on main or secondary road locations, roads which enjoy high exposures and where non-residential traffic can be prevented from penetrating the 'heartland' of residential areas. It also makes planning sense that the site is at a corner so that it is exposed and visible, and where access is also available from a side street.

23 The proposal meets these locational principles.

24 As for whether the proposed use is meeting local needs, I understand that this display home is upmarket and targeted for the Bayside clientele.

25 Apart from locational and local relevance criteria, other aspects of considering non-residential development favourably in residential zoned land are the ability of the proposal to integrate with the character of an area, and limiting traffic, car parking, and amenity impact on adjoining residential properties.

Integration of Proposal with Neighbourhood Character

26 The proposed use involves making use of the two storey dwelling currently under construction. This two storey dwelling is characteristic of development in the area. It integrates well with the streetscape and character of the area.

27 The proposed signs, particularly subject to the conditions of 1c), 1d), 7 and 9, are discrete. The proposed customer car parking area off Kinane Street, these signs and the crossover will be removed when the permit lapses in 3 years.

28 Upon the expiry of the permit, the site will be used as a dwelling like every other dwelling in the area, perhaps with the benefit of the removal of the crossing in Kinane Street, removing a potential traffic conflict point in Kinane Street.

29 Leaving the car parking and traffic issues aside, the proposal will not cause unacceptable impact such as overlooking, overshadowing, or visual bulk. The construction of the existing dwelling is subject to a building permit, which is subject to overlooking, overshadowing and visual bulk (building on boundary, and setback and length of wall on boundary) assessment under Clause 54.

30 The level of activity generated by the proposed display home, limited to between 1:00pm to 5:00pm five days a week cannot be considered to be high if compared to other non-residential uses such as a medical centre, an education centre, place of assembly or place worship. These time limits will mean that activities are confined to the middle of the day, when sensitive hours such as early mornings and evenings are free from activities from the use. Outside opening hours, the proposed use will have no impact.

31 Traffic and parking are the review applicants' main concerns, particularly in the aspects of visitors of the display home parking and parking in an illegal manner in Kinane Street.

32 The proposal provides five open car spaces on site on the side off Kinane Street, and another four in the basement off New Street.

33 Council has no problem with the proposed car parking. The application was referred to its Traffic Engineer who did not object to the proposal, but recommended that all staff parking be accommodated in the basement car park, widening of the crossover, and that the car park and vehicle crossing be removed and reinstated to landscaping and footpath/bluestone kerb once the display home use ceases operation. His analysis is that the proposal will generate 20-60 vehicle trips per day, a volume that can be absorbed into the local road network.

34 The review applicants' concern is the possibility of visitors to the display home parking in the street and parking illegally. They submitted that there is limited on street parking because of the narrow width of Kinane Street. Visitor to the multi-unit developments and other houses currently parked in the street. Photographs they tabled show builders and tradespersons vehicles parked over the footpath, an illegal activity which has not been supervised by Council. Further, the car parking demand data gathered by the permit applicant's expert witness was sourced from her client rather than surveying a like development, or interviewing local residents. There is no guarantee that visitors to the display home would not park in the street and parking illegally. They recommended the Tribunal not to give Ms. Dunstan's evidence any weight.

35 As far as the appropriate level of parking to be provided is concerned, Clause 52.06 provides the assessment and requirement criteria. Table 1 of Clause 52.06 (Car Parking) specified a requirement of 5 car spaces for a display home. The number for car spaces to be provided for a particular use specified in this table generally reflects the demand of car parking for that use. The proposal provides five open car space off Kinane Street and another four in the basement of the building. The proposal hence meets the requirements of this clause. There is no reason to require more on site car parking spaces.

36 With regard to the layout of car space and accessway, their design meets the requirements of Clause 52.06-3 (Design of Car Spaces and Accessways). Further, the proposed car spaces are easily accessible. All cars can enter and exit the site in a forward direction.

37 With regard to the review applicants' concern of illegal parking by visitors to the display home in Kinane Street, as on-street parking in New Street is unlikely due to a combination of bus stops, pedestrian crossing and 'No Standing' area within 9 metres of an intersection, it is not borne out by Ms. Dunstan's evidence. I accept her opinion that with additional directional sign directing visitors to the car park off Kinane Street, this car park will be highly visible and accessible, and that visitors will prefer to park on site rather than on-street in Kinane Street over footpath or opposite parked cars. If some visitors, despite available and accessible on-site parking and for reasons of their own decide to park in Kinane Street in an illegal manner, that is a personal decision, something that cannot be regulated by a planning permit. They also run the risk of enforcement action.

38 It appears that there is a current parking problem in Kinane Street, mainly caused by builders and tradespersons engaged to construct the new house to be used for the proposed display home and Mr. Lefevre's new house. As with development everywhere, construction will always cause a temporary period of inconvenience to neighbours. Any illegal activities, such as illegal parking, storage or dumping of building materials on public domain, construction works using machines outside authorised hours, or dragging silt or clay onto roads, are subject to various rules and regulations. These constructions related activities would cease once these homes are completed. Any illegal parking by builders and tradespersons at present and by visitors to the display home in the future is liable to enforcement action.

39 In all, with regard to parking for the proposal, it meets the car parking requirement of Clause 56.02, and hence satisfactory.

40 The review applicants' concern regarding traffic is the unknown impact of the proposed display home use and pedestrian safety. They submitted that Kinane Street is a narrow street currently used by locals to walk to Beach Road, access the bus stops and the pedestrian crossing immediately north of 93 New Street to walk to the local primary schools. Any illegal parking in Kinane Street will impact on pedestrian safety in Kinane Street, as they will be forced to walk on the carriageway. They submitted that the permit applicant's traffic information was based on survey done outside school periods and should not be relied on. The potential impact of the proposed display home on the street cannot be gauged by experiences from other display homes, because Kinane Street is unique: it is narrow, dead end, with limited on street parking, and subject to difficult access and egress.

41 Ms. Dunstan's evidence was that her survey included a school day. Further, the volume of traffic generated by the proposed use is well within the environmental capacity of Kinane Street. Despite that there is no direct comparison of a like display home in identical circumstances, it is not the use that warrants a separate survey but the impact of the proposed use. Given the volume of traffic generated by the proposed use, limited to the hours of between 1:00pm to 5:00pm, and the adequacy of car parking provided on site, the proposal would generate negligible impact on Kinane Street. The additional traffic caused will not cause adverse traffic congestion, safety for the street, or the intersection of Kinane Street and New Street.

42 I am persuaded by Ms. Dunstan's evidence that the level of traffic generated by the proposed use is well within the capacity of the local street network, a view shared by Council's traffic engineer. Kinane Street would be in the category of a local street pursuant to Clause 56 of the Scheme. The additional 36 trips (according to Ms. Dunstan) and between 20 to 60 (according to Council's traffic engineer), plus the traffic volume of existing dwellings in Kinane Street, are well within the capacity of a local street as defined in Clause 56 of the Scheme. I also anticipate that the impact of traffic on Kinane Street is towards the front end of the Kinane Street, particularly between the intersection and the entry to the car park.

43 I am satisfied that, despite some increase in traffic between the hours of 1:00pm and 5:00pm during opening days, it is a level that can be absorbed by the capacity of the local street network.

44 With regard to pedestrian safety in Kinane Street, my observation during my inspection was that the width of footpath was reduced by parked vehicles, those belonging to tradespersons and residents. None of the footpath at the New Street end was completely blocked. The northern footpath at the western end was blocked by a passenger vehicle, one that does not appear to be associated with the construction of the two new homes at the New Street end. When the construction for the review site and Mr. Lefevre's property are complete, this period of inconvenience and illegal parking caused by builders and tradespersons should cease.

45 With regard to pedestrian traffic, particularly school children, I was surprised at the low volume of school children pedestrian traffic in New Street associated with the nearby schools. My observation was that all school children (gauged from their uniforms as from St. Agnes, Brighton Beach Primary Schools and Kostka Hall) using New Street were all well behaved and used the signalised pedestrian crossing when they needed to cross New Street. It appears that most school children these days are picked up by cars or stayed back for after school hour activities.

46 Notwithstanding the current low volume of pedestrian traffic in New Street and those anticipated for Kinane Street during the proposed opening hours of the display home, there is no evidence to substantiate that pedestrian safety will be compromised by the proposed use due to the unsubstantiated fear that visitors to the display home will park illegally across footpath to the extent that pedestrians will be forced to walk on the carriageway and subjecting themselves to traffic danger.

47 In all, I accept Ms. Dunstan's evidence and Council traffic engineer's view that the proposal would not constitute a pedestrian hazard for the area.

48 The review applicants also expressed concern about potential impact on property value during the three years of the permit. Apart from an absence of evidence to substantiate that statement, it is not a relevant planning consideration.

49 The proposal is to use a two storey dwelling currently under construction at the corner site located on a busy road zoned Road Category 2 for a display home, a location considered to be appropriate for a relatively low level non-residential use in the Residential 1 Zone. The appearance of the dwelling to be used for the display home is consistent with the streetscape and neighbourhood character of the area. It provides a level of on-site parking required by Clause 52.06. I accept Ms. Dunstan's and Council's traffic assessment that the level of traffic generated is acceptable in terms of volume and safety.

50 Permit conditions included in the Notice of Decision to Grant a Permit specified the hours of operation, the tenure of the permit, and will be subject to a further condition requiring better direction to the car park off Kinane Street, and a clerical correction of Condition 1a).