The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted to use and develop land at 140-142 Grange Road, Carnegie, for an alcohol and drug outreach and resource centre operated by the Self Help Addiction Resource Centre Inc, generally in accordance with endorsed plans and subject to the following conditions:

1

Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be in accordance with the plans submitted with the application and considered by VCAT (identified as Drawing Nos. TP02C, TP03C and TP05B, prepared by IN2 Pty Ltd dated September 2004) but modified to show:

(i)

The southern setback of the upper level extension to be increased so that no additional overshadow is cast onto the adjoining property to the south, as measured at the 22 September Equinox;

(ii)

The 1.7 m high obscure glass screen to be extended to enclose the full perimeter of the terrace adjacent to the staff room, except for the north face of the terrace;

(iii)

The provision of bicycle parking;

(iv)

Deletion of the proposed future sign from all plans and elevations;

(v)

Notes stating that the Flowering gum tree in the south western corner of the site is to be retained;

(vi)

The raised garden bed to finish not less than 4.5 m from the southern boundary so that there is no change in the ground level in proximity to the Flowering Gum tree to be retained;

(vii)

The alignment of the proposed 1.8 m high front fence to be adjusted so that it does not impact on the Flowering gum tree to be retained;

(viii)

The provision of 5 on-site parking spaces accessed from Elnido Grove

When approved, the plans will be endorsed and will then form part of this Permit.

2. This permit allows the use of the land for an alcohol and drug outreach and resource only by the Self Help Addiction Resource Centre Inc. If the Self Help Addiction Resource Centre Inc ceases to use the land for this purpose, this permit will expire.

3. The use of the land for an alcohol and drug outreach and resource centre by the Self Help Addiction Resource Centre Inc may include the provision of the following services only;

Recovery Support Services, being the administration of a residential program supporting young people aged 16-25 recovering from alcohol and drug uses and involves the undertaking of regular support meetings, the provision of counselling and support services.

Family Drug Help, being a service for the provision of information, counselling and support for parents, family and others involved with a person with an alcohol or drug problem.

Administrative functions for the Association of Participating Service Users (APSU), being a service assisting people who assess alcohol or drug services to participate in the development of policies, practices and delivery of services.

4. The dispensing of methadone or substitute drugs must not occur on the premises. A needle and syringe exchange program must not be operated from the premises. Drugs must not be kept or administered on site.

5. The premises must not be occupied or hired by any other organisation or group at any time, unless otherwise allowed with the written consent of the Responsible Authority.

6. The use shall operate within the following standard times;

Monday to Friday 8:00am to 6:00pm

Saturday 9:00am to 6:00pm

Sunday closed

Public Holidays closed

Except for the following:

1 night per week, between 6:00pm and 10:00pm. All persons to vacant premises by 10:30pm.

Monday to Sunday, between 8:00am to 10:00pm, all persons to vacant the premises by 10:30pm.

One (1) per month, to be finished by 10:00pm, all persons to vacant premises by 10:30pm.

To be finished by 10:00pm. All persons to vacant premises by 10:30pm

Unless otherwise allowed with written consent of the Responsible Authority.

5. The maximum of number of persons on the site at any one time, including staff members/volunteers/clients/visitors, shall not exceed 35 persons, except for the following occasions;

No more than three (3) staff members/employees/volunteers between 6:00pm and 10:00pm

6. Group therapy sessions shall occur no more than four (4) times per week, between 8:00am and 6:00pm.

9. At all times during the operation of the use, there must be present on the premises a person, over the age of twenty-one (21) years, who is responsible for ensuring that the activities on the premises, and the conduct of persons attending the premises, do not have a detrimental impact on the amenity of the locality, to the satisfaction of the Responsible Authority.

10. The permit holder must maintain a written record of the times and numbers of persons, including staff members/volunteers/clients, attending group therapy sessions, family pilot programs, monthly board meetings and annual general meeting to the satisfaction of the Responsible Authority. The record shall be provided to the Responsible Authority when requested.

11. Prior to the commencement of the use, the operator under this permit must prepare a "complaints Handling Procedure", to the satisfaction of the Responsible Authority, including (but not necessarily limited to) the following matters:

i) The date of the complaint;

ii) Details of the complaint with name, contact number and address, if relevant;

iii) Action to rectify the complaint and date of the action;

iv) Details of subsequent contact with the complainant regarding the action to resolve the complaint;

v) A process and timeframe for the review of the Complaints handling Procedure by senior staff and management of SHARC.

b)

A process and timeframe for the operator to consult with and consider solutions proposed by local community members to resolve any identified issues.

c)

A process and timeframe for the regular submission of copies of the Complaints handling Register to the Responsible Authority.

The Complaints Register and "Complaints Handling Procedure" shall be made available for examination by the Responsible Authority at all reasonable times on request by the Responsible Authority.

11. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses (Melbourne Water Condition).

12. Before the commencement of buildings and works, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this permit. The Landscape Plan must incorporate:

a)

A survey, including botanical names, of all existing vegetation to be retained.

b)

Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.

c)

A planting schedule of all proposes vegetation including botanical names, common names, pot sizes, sizes at maturity, quantities of each plant, and details of surface finishes of pathways and driveways.

d)

Landscaping and planting within all open space areas of the site.

e)

Advanced canopy tree (minimum 2.0 metres tall when planted) in the following areas:

i) Three trees distributed across the Grange Road setback and screen planting around the car parking area off Elnido Grove.

All species selected must be to the satisfaction of the Responsible Authority.

13. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the sue or at such alter date as is approved by the Responsible Authority in writing.

14. The landscaping as shown on the endorsed landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

15. The development must not commence until a Development contribution Fee has been paid to the Responsible Authority. The fee payable must be calculated in accordance with the Schedule to the Development Contribution Plan Overlay of the Glen Eira Planning Scheme.

Note: a $40.00 administration fee will also be charged.

16. Disabled access to the building must be provided to the satisfaction of the Responsible Authority.

All work carried out to provide disabled access must be contributed in accordance with Australian Standards Design for Access and Mobility: - AS 1428.1-2001 and AS1428.4-2002.

17. The amenity of the area must not be adversely affected by the use or development as a result of the:

a)

Transport of materials, goods or commodities to or from the land; and/or

b)

Appearance of any building, works, stored goods or materials; and/or

c)

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

Or in any other way, to the satisfaction of the Responsible Authority.

18. Noise from the premises must not exceed the relevant limits prescribed under State Environment Protection Policy (Control of Music Noise from Public premises) N-2.

19. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service.

20. No external sound amplification equipment or loudspeakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purpose.

21. All outdoor lighting must be baffled and/or located to prevent light from the site causing detriment to the locality to the satisfaction of the Responsible Authority.

22. Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

All bins and receptacles used for the storage and collection of garbage, bottles or other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.

All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

23. All disused or redundant vehicle crossings must be removed and the area reinstated with footpath, nature strip and kerb and channel to the satisfaction of the Responsible Authority.

24. The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

a)

The development does not start within two (2) years from the date of this permit; or

b)

The development is not competed within four (4) years of the date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this permit expires or within three (3) months after the expiry date.

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.

Mr. Paul Connor of Counsel, instructed by Holding Redlich. He called the following witnesses to give evidence:

Mr. Poul Bottern, Chief Operating Officer of Self Help Addiction Resource Centre Inc. (SHARC)

Ben Toovey, Robert White and Greg Curlia (lay witnesses)

Bill Kerr, James Harley, Cecil and Pamela Rozario, T. Fitz, Wendy Wilson and Jim Dounias (Glen Huntly Primary School), Dennis Green, Liana Ramundi, John Hopkins, Shirley Gregory, Yvonne McCormack, Robert Sydenham and Judith Cuthbert appeared in person.

Ms. Maria Gianna appeared on behalf of A. Hazelden.

Ms M Salter& R Blackburn appeared on behalf of P & L Flynn & ors

Jeremy Hearn appeared on behalf of the Glenhuntly Progress Group.

1 This is an application to review the decision of the Responsible Authority to refuse permission for the use and development of land for the purposes of an alcohol and drug resource centre at 140 - 142 Grange Road, Carnegie. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed use would have an adverse impact on the amenity of the surrounding residential area due to the range and intensity of the activities to be conducted and the proposed hours of operation.

2. The proposal does not include any on-site car parking to cater for demand generated by the use which is contrary to the objectives of the local planning policy for Non Residential Uses in Residential Zones and the purpose of the Car Parking provisions (Clause 22.02 and 52.06 of the Glen Eira Planning Scheme, respectively).

3. The use of Grange Road and local streets for car parking associated with the use would adversely affect the residential amenity of the area and cause a reduction in vehicle and pedestrian safety.

4. The proposal would be contrary to the proper and orderly planning of the area as it would establish an undesirable precedent for the establishment of a non-residential use with no on-site car parking.

2 At the outset of the hearing, Ms. Yvonne McCormack of 134 Grange Road, Carnegie made application to be joined as party to these proceedings. There was no objection to the application.

3 At the conclusion of the hearing we gave directions allowing parties seven days to provide written comments on the Council's draft permit conditions. We received a number of submissions from objectors, however many of these submissions sought to reiterate submissions made during the hearing or raise new matters. These submissions were outside the scope of the leave granted to comment on permit conditions and while we have read the submissions to ascertain their content, we have given no weight to them.

4 The review site is located on the south-east corner of Grange Road and Elnido Grove, Carnegie. It is irregular in shape, with a frontage of 37.52 metres to Grange Road, a frontage of 45.58 metres to Elnido Grove, and a site area of approximately 1291.5 m2. A church building, the former St. David's Uniting Church, and associated buildings occupy the site.

5 Immediate surrounding uses are residential, with a predominance of unit development in Grange Road and detached houses in Elnido Grove. Non-residential development in Grange Road in the vicinity includes a Greek Church, a primary school, a medical centre, and the Glenhuntly Road shops and businesses to the north. In terms of accessibility, there are tram services in Glenhuntly Road. The Glenhuntly railway station is 400 metres to the west and a bus service operates on Grange Road.

6 Grange Road is a busy north-south road with four lanes and unrestricted parking in the vicinity of the site. Elnido Grove, similar to other east-west roads off Grange Road, is a residential street and not subject to parking restrictions.

7 It is proposed to make alterations and additions to the existing church complex and use it for a resource centre for the Self Help Addiction Resource Centre (SHARC).

8 The buildings and works components of the proposal involve the conversion of the church buildings for the proposed use. By doing so, a new mezzanine floor of 321 m2 will be constructed within the main church and hall buildings. Another 22 m2 terrace is proposed facing Elnido Grove. This terrace is to be fenced by a 1.7 metre high obscure glazing towards east and south to provide an outdoor amenity area for the staff room it is attached to.

9 The ground floor of the buildings will be used for a reception area, four consulting rooms, a training room, a recreation/group therapy room, a resource area stocked with resource materials, books, articles and service information, a number of store rooms, amenity rooms and a generous lobby area. The first floor is to be used for the administration of the organisation, staff room, and the help line service.

10 SHARC is a non-government community based organisation providing rehabilitation and recovery support to people affected by problematic use of alcohol and drugs. It receives funding from the Commonwealth, State and Local governments, philanthropic grants and the corporate sector. It is listed as a public benevolent institution with the Australian Tax office.

11 It has been providing services in the City of Glen Eira for 17 years. Recovery homes have been set up in the suburbs of Glenhuntly and Caulfield since 1987.

12 The proposal is to relocate SHARC's existing resource centre from 1242 Glenhuntly Road, which has been established at that address since 1998. Although SHARC is a state-wide organisation, it receives specific funding from the State Government to provide services to the 'middle south' of the Southern Metropolitan region of Melbourne.

13 The applicant advised us that the intended relocation from the Glenhuntly Road property is to enable a larger resource centre, provision of a more comprehensive range of services including the delivery of 'satellite services' by other organisations.

14 At the time of the application, Council understood that its operating hours are to be generally those of business hours except for board meetings, held once a month from 6 to 8pm, and an annual general meeting attended by staff and friends of SHARC. During the course of the hearing however, we were advised that it is also proposed to conduct a pilot program of group meetings to help family and friends, up to three times per week with all activities ceasing by 10:30pm

15 The Helpline is a telephone operated service with 1 staff member and 2 volunteers per shift operating until 10pm. Other evening and weekend activities will be some evening groups and training sessions.

16 Mr Paul Bottern, the Chief Operating Officer of SHARC gave evidence during the hearing about the operations of the organisation, its role and objectives and its operating characteristics.

17 Mr. Bottern advised us that SHARC has 15 staff members and provides the following three services:

Recovery Support Services: A residential program supporting young people aged 16-25 recovering from alcohol and drug uses. At present, up to 22 young people reside in flats and houses primarily in the Glenhuntly and Carnegie area. They attend regular support meetings at the SHARC offices and receive counselling and support.

Family Drug Help: A service for parents, and others where someone in the family has an alcohol or drug problem. There is a telephone advice and support line, 22 self help groups across Victoria and a resource centre based on the SHARC office.

APSU (Association of Participating Service Users): This service assists people who assess alcohol or drug services to participate in the development of policies, practices and delivery of services.

18 Mr Bottern stated that clients of SHARC or residents of the program are not active drug users and that a commitment to a drug free life is a basic criteria for determining eligibility for participation in the program. All participants in the program are tested regularly and participants who relapse are referred to other services (e.g. withdrawal service) and may only re-enter the program when they have re-committed to a drug free life. SHARC is not involved in the dispensation of methadone or substitute drugs, and there is no needle and syringe exchange program run from the premises. No drugs are kept or administered on site and there is no residential component on site. Approximately 85% of the services offered are focussed on family members of people who have or are recovering from alcohol or drug problems. The services provided on site are primarily information dissemination and consultation service.

19 The review site is zoned Residential 1 Zone under the Glen Eira Planning Scheme. The purpose of the zone is;

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

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

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

20 The proposed use is an unspecified, section 2, permit required use in the zone. We received submission to the effect that the proposed use falls within the meaning of "office" as defined in the planning scheme, and is therefore prohibited in the zone. For reasons which we elaborate on subsequently, we are satisfied however that the proposed use is not prohibited in the zone.

21 A permit is required for buildings and works associated with a section 2 use.

22 Land to the north, south and east are also in the Residential 1 Zone. Grange Road is in the Road Zone Category 1.

23 The site is affected by a Special Building Overlay and Development Contribution overlay. These overlays raise no issues of relevance to the consideration of this application.

24 Clause 52.06-1 of the schemes specifies that a new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land.

25 The policies relevant to the consideration of this application are contained in clauses 11, 12, 17.01, 18.06, 19.03, 21.03, 21.08, 22.02 of the planning scheme and we deal below in some detail with the policy context within which this application must be considered. In broad terms the relevant policies seek to ensure that communities are provided with services and facilities which respond to social needs and which are integrated into the community. Emphasis is also placed on the appropriate location of such facilities in order to ensure that safe physical and social environments for a community's residents is maintained and that amenity impacts are contained within acceptable limits.

26 It is inevitable given the complexity of land use planning issues confronted by responsible authorities, that planning schemes will contain policies which will conflict with each other and in many instances this may present a confused view of what outcomes the planning scheme is actually attempting to achieve. This Application for Review is a case in which we are confronted with a series of conflicting polices and not unexpectedly, each of the parties urged us to give greater weight to particular polices in preference to others. Both the Council and the objectors presented submissions to the effect that the policy framework of the planning scheme emphasised the protection of the amenity and safety of residential areas and that this proposal conflicted with those provisions. The applicant quite reasonably placed greater emphasis on those policies which also form part of the planning scheme and which recognise the need for the provision of services and facilities required by a community and the integration of these facilities within the community. It was also the applicant's submission that the proposal does not give rise to unacceptable amenity impacts in any event. In all submissions the issue of the appropriate location of such facilities was a primary factor.

27 Clause 11.01 of the State Planning Policy Framework (SPPF) sets out the approach which is required to be taken in reconciling conflicting policies and objectives. This Clause states that;

.....It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development....... (Tribunal's emphasis).

28 This is the approach we have taken in this matter.

29 At the hearing, parties relied on written and oral submissions. Expert and lay witnesses called by the review applicant were made available for cross-examination. Submissions, statements of evidence, photographs, local press reports, bus timetables, and other documents tabled at the hearing have been retained on the Tribunal's file.

30 We have inspected the site and surrounding area on a number of occasions subsequent to the hearing.

31 Having considered the submissions and the evidence, and having reviewed the planning scheme provisions, we are, on balance, satisfied that a permit ought to issue. In arriving at our conclusion we are satisfied that the proposal meets a community need, that the site is appropriately located for the use and that having regard to the nature and intensity of the activities proposed to be undertaken on the site, the use will not give rise to unacceptable amenity impacts. We have however directed that the permit contain conditions limiting after hours use of the site and requiring the provision of car parking on the site.

32 As we have stated above, we received submissions to the effect that the proposed use falls within the meaning of "office" as defined in the planning scheme, and is therefore prohibited in the zone.

33 It was the Council's submission that the proposed use is inappropriate for this site and for a site in a Residential zone, partly at least because of the intensity of the use and the administrative function associated with the use which contributes to that intensity. It did not submit however that the proposed use is prohibited. A number of objectors did however raise this matter and it is necessary for us to record our findings on it.

34 An office is a prohibited use in the Residential 1 zone. The table to Clause 74 of the planning scheme defines an office as follows:

Land used for administration, or clerical, technical, professional or other like business activity. No goods or materials intended for manufacture, sale, or hire may be stored on the land. Other than electoral office and medical centre, it does not include any other defined use.

35 The table to Clause 74 states that an office includes a bank, electoral office, medical centre, real estate agency and travel agency.

36 A medical centre is defined in the following terms;

Land used to provide health services (including preventative care, diagnosis, medical and surgical treatment, and counselling) to out-patients.

37 A medical centre includes an office and is a section 2 permit required use in the zone.

38 A place of assembly is defined as follows;

Land where people congregate for religious or cultural activities, entertainment, or meetings.

39 A place of assembly is also a section 2 permit required use in the zone and includes, among other uses, a library.

40 We have outlined in some detail the nature of the uses intended to be carried out from this site and in our view, the use does not fall comfortably within the definition of any of the above uses. While we acknowledge that there is an administrative function associated with the proposed use, our assessment of the use is that SHARC is a community based group committed to assisting those in recovery from drug addiction and alcoholism, and in providing support for their families and friends. The services provided include counselling, support, and a resource centre from which information can be obtained.

41 The conclusion we have reached is that the counselling services represent the proposal's primary use and in this respect is more akin to a medical centre than an office. The associated assistance to families is directly associated with this use and forms an integral part of SHARC's overall counselling and rehabilitation strategy. This component of the use may fall within the meaning of a place of assembly. The administrative function of SHARC is ancillary to the counselling and community based uses. We are satisfied therefore that the proposed use is an undefined section 2 use comprising elements of a number of related uses, and that the office component is ancillary to these uses. The proposed use is not therefore prohibited in the zone.

42 The principal policy issue in this application for review relates to the appropriateness of the location for the proposed use. There was no dispute between the parties that the proposed use serves an important community role and that a need existed for the services provided by SHARC. The dispute in this matter concerned the location of the use in a residential area.

43 With respect to the provision of community facilities Clause 11.03-6 of the SPPF provides the appropriate policy context for our considerations. Under the heading "Social Needs" it is stated that;

Planning is to recognise social needs by providing land for a range of accessible community resources, such as affordable housing, places of employment, open space, and education, culture, health and community support (mental, aged, disabled, youth and family services) facilities. Land use and development planning must support the development and maintenance of communities with adequate and safe physical and social environments for their residents, through the appropriate location of uses and developments and quality urban design.

44 Clause 18.06, Health facilities, emphasises the integration of health facilities with local and regional communities. Planning and responsible authorities are encouraged to facilitate the location of these 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. It also recommends that sufficient parking be provided for staff and visitors.

45 We acknowledge that none of the policies of the SPPF provide specific support for the location of community facilities within residential areas. The SPPF does not necessarily provide any great impetus for these uses to be located in residential areas, rather the emphasis is on ensuring the appropriateness of the location to ensure that the use is integrated with the community and does not contribute to unacceptable amenity impacts. We suspect that a community facility in a business or an industrial zone could be very well integrated with its community provided it is well designed and it is appropriately located.

46 We also acknowledge that Clauses 12 and 17 of the SPPF encourages the development of activity centres as a focus for community, business, entertainment and commercial facilities, and it was submitted to us that the proposal ought to be located within an activity centre, rather than a residential area.

47 While we have concluded that the SPPF does not provide specific encouragement for community facilities in residential areas, nor does it discourage or preclude such facilities in those locations. We reiterate that the emphasis is on the appropriateness of the design and location and this emphasis is repeated throughout the SPPF. This emphasis also finds expression in the purpose of the Residential 1 zone which, as we have detailed previously, allows for "In appropriate locations .....educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs"

48 This theme is also reflected in the Local Planning Policy Framework, the most relevant provisions of which are Clauses 21.08 (Institutional and Non-residential Uses in Residential Areas) and 22.02 (Non-Residential Uses in Residential Zones Policy).

49 Clause 21.08 (Institutional and Non-residential Uses in Residential Areas) acknowledges that non-residential and institutional uses have a place in residential areas of Glen Eira, but also identifies badly sited or controlled uses as being those which can progressively erode the residential nature of the municipality. Clause 22.02 builds on these principles. The policy basis for this local policy states:

Glen Eira is primarily a residential municipality with heritage and urban character areas evident, and high quality streetscapes valued by residents. Medical centres, schools, parks, churches, childcare and kindergartens all, quite clearly, have a place within residential areas. This is a well recognised fact and is based on sound social and economic principles. There are many non-residential or commercial-type discretionary uses permitted in residential zones. Badly sited or controlled non-residential uses have the ability to progressively erode the basic fabric of Glen Eira's residential nature. The Non Residential Uses in Residential Zones Policy aims to ensure that non-residential uses are successfully integrated into residential areas with a minimum impact and loss of residential amenity......

•

To encourage the development and location of new non-residential uses in areas which are compatible with the residential nature of the area and comply with orderly and proper planning principles.

•

To successfully integrate non-residential uses into residential areas with minimum impact.

•

To encourage proposals that retain the existing housing stock within the municipality.

•

To maintain and protect any dwellings/buildings of historical/cultural significance.

•

To ensure that adequate provision is made for appropriate on-site parking for all non residential uses.

•

To ensure that traffic generated by the use of the site is appropriate to the street and the locality and will not adversely affect existing traffic patterns and safety.

•

To maintain the garden character of the neighbourhood.

•

To allow adequate and appropriate signage.

•

To minimise the effect of non residential uses on the residential amenity by controlling staff levels, numbers of practitioners, hours of operation and the size and intensity of the use, as appropriate.

51 The policy contains a number of criteria against which to assess the extent to which a proposal achieves objectives of the policy. These criteria are contained under the headings "preferred location", "siting and design", "streetscape", "traffic and car parking", "landscaping", "advertising signage" and "general amenity".

52 Having regard to the fact that the proposal involves the use of an existing non residential building with relatively minor buildings and works, we are satisfied that the policy in relation to siting design and streetscape are met by this proposal. With respect to the other matters required to be considered under the policy, there are specific criteria which need to be met, together with general provisions relating to amenity, traffic and car parking. We deal with the amenity, traffic and parking issues in some detail below, but in terms of the specific criterion under the policy we have concluded as follows:

i

Preferred location; the review site abuts a main road and has vehicular access from a side street. The site is located within easy walking distance of public transport. For reasons which we elaborate on below, we are satisfied that the proposal will not contribute to a loss of amenity.

ii

Landscaping; we have not been provided with detailed landscaping plans, but we are satisfied that appropriate landscaping can be incorporated into the site and that this can be required by way of permit conditions

iii

Advertising signage; details have not been provided but this can be dealt with by way of permit conditions.

53 The issues which remain in dispute are related to the impact of the proposal on the residential amenity, a consideration which is largely influenced by the intensity of the use, traffic, hours of operation, staff numbers and the like, and the adequacy of the car parking provision. It is to these matters which we now turn.

54 The impact on the residential amenity of neighbouring properties in this case does not relate to built form issues or amenity factors such as overlooking, overshadowing, or visual bulk. The screening of first floor windows and terraces has ensured that visual privacy considerations are contained within the standards established by Clause 55. The increase in building massing because of the extension to the hall building on the southern elevation, although visible from the habitable room windows of Unit 1 144 Grange Road, meets Standard B17 of Clause 55.04-6 (side and rear setback), Standard B21 of Clause 55.04-5 (overshadowing), and Standard B20 of Clause 55.04-4 (north facing windows). Further, Council's draft permit conditions require the wall facing that dwelling to be setback so that there is no additional overshadowing. We accept that recommendation.

55 The principal amenity issue raised by objectors is the fear that the premises will become a drop in centre for "undesirables" in particular drug addicts and alcoholics, some of whom may have criminal records, and that this increases the potential for anti-social and criminal activities. Objectors referred to the large numbers of vulnerable members of the community in the area who may be at risk, such as the disabled (Yooralla), children (primary schools) and the elderly. The objector's submissions were largely predicated on the premise that drug addicts are never cured and can only be managed on a day to day basis. It was submitted that residents will not feel safe or secure with this facility in their neighbourhood.

56 While we can appreciate the concerns expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.

57 We have not been able to conclude that there is a factual or realistic basis to those fears. We have reached this conclusion having regard to the characteristics of this use which are, as we have previously detailed, focussed on the provision of counselling services for recovering alcoholics and drug addicts and their families, the provision of resources and information and the administration of a residential recovery support program. The clients of SHARC are not active drug users and a commitment to a drug free life is a basic criteria for determining eligibility for participation in the program. We have been influenced in our findings by Mr Bottern's evidence that participants in the program are tested regularly and those who relapse (approximately 50% do at some stage) are referred to other services (e.g. withdrawal service) and may only re-enter the program when they have re-committed to a drug free life. It is also very significant that SHARC is not involved in the dispensation of methadone or substitute drugs, and there is no needle and syringe exchange program run from the premises. No drugs are kept or administered on site and there is no residential component on site. Approximately 85% of the services offered are focussed on family members of people who have or are recovering from alcohol or drug problems. The services provided on site are primarily information dissemination and consultation service.

58 During the course of the hearing we were referred to an earlier decision of the Tribunal in which a Council's notice of decision to grant a permit for a drug and alcohol counselling and education centre in Footscray was set aside by the Tribunal[1]. We think it is instructive to compare the use considered by the Tribunal in that case with the use being considered by us. In the earlier case the proposal involved the relocation and expansion of an existing alcohol and drug dependency centre into a residential area. The proposed use offered very different services to those offered by SHARC in that it was an actual drug dependency centre involving addicts seeking supervised and substitute addiction treatment and objectors were able to demonstrate to the Tribunal the already detrimental impact of the existing operation. We are satisfied that there are significant differences between the proposal considered by the Tribunal in that case and the proposal before us.

59 In reaching our conclusion on this matter we have been comforted by the fact that SHARC currently operate from premises nearby in Glen Huntly shopping centre and has been operating unobtrusively and without incident for a number of years. The zoning and site context of the existing premises is admittedly very different to that of the review site, but we don't think that has any influence on the operational characteristics of the use.

60 To a large extent our conclusions about the acceptability of this use have been based on the philosophy and approach of the applicant and the specific operating characteristics which are derived from that philosophy. We think that this is a case in which a permit condition ought to be imposed which ties the permit to this applicant and to the method of operation described to us by the applicant. We note that Mr Connor acknowledged the desirability of such a condition and his client's acceptance of it.

61 We have also imposed a condition requiring a complaint handling procedure to be established which provide residents with the opportunity to make direct contact with relevant SHARC officers in the event that specific issues arise.

62 The objectors also compared the potential impact of the proposal to that of the previous Church use which, it was submitted, had been of a very low scale involving a small congregation for many years. The current proposal in their submission represents a dramatic change in the intensity of the nature and the nature of the impacts.

63 The policy at Clause 22.02 recommends that the hours of operation of non-residential uses in residential zones be limited to business hours during the week, half day on Saturdays and no operation on Sundays and public holidays. We think that this is a sound policy and accept the principle underlying it that in residential areas, evenings, nights, Sundays and public holidays are the times in which the potential for disturbance of residential amenity is at its greatest.

64 At the hearing, we were advised that evening activities are proposed to be the telephone help line service, a monthly board meeting, an annual general meeting and a pilot program of group meetings to help family and friends, with all activities ceasing by 10:30pm.

65 We accept that the help line service is quiet and discreet and that this service ought to be able to operate unconstrained by hours limitations. Similarly we accept that board meetings are unlikely to contribute to unacceptable amenity impacts given that they occur once a month.

66 We do however express reservations about the pilot or some group sessions being conducted up to 3 evenings per week and involving up to 50 people, especially having regard to the close proximity of residential properties and the fact that the use will rely on on-street car parking in residential streets.

67 We have imposed a condition therefore limiting the post 6.00 pm hours of operation to the telephone help line, the monthly board meetings, the annual general meeting, and a maximum of one other group session per week.

68 Subject to the impositions of these conditions we are satisfied that the proposal will not contribute to an unacceptable amenity impact.

69 The proposal makes no provision for on-site parking although in response to questions from the Tribunal, a plan was tabled during the hearing showing the provision of ten parking spaces on the site. Mr Connor submitted that the evidence in relation to parking is that on site parking is not required but that if the Tribunal requires some provision for parking it can be provided but at the expense of landscaping.

70 The two traffic witnesses called by the permit applicant Mr. Robertson and Mr. Hunt were of the opinion that the proposal meets the waiver criteria of Clause 52.06, and that the car parking demand generated by the proposal can be met and absorbed by the available spaces in Grange Road and nearby streets.

71 Council's concern is not so much that there is a lack of on-street spaces to meet the demand, but that none is provided and that the parking is likely to occur in Elnido Grove instead of Grange Road due to the high volume of traffic in Grange Road.

72 Objectors submitted that the reliance on on-street parking would create a competition for these spaces with local residents, and they are fearful that staff, clients and visitors to the centre will park across private driveways, generally creating disruption and disturbance in residential streets.

73 The review site has a frontage to a declared road (Grange Road) which carries a volume of traffic in the order of 17,000 to 20,000 per day. Elnido Grove, its other street frontage, is a local street which carries about 500 vehicle trips per day. The site is well located in terms of public transport as we have previously detailed. Both Mr. Hunt and Robertson calculated the peak parking demand generated by the proposed use as 10 to 12 spaces at the peak time which they anticipated would be between 11.00 am and midday. They both concluded that there are more than sufficient on-street spaces to absorb all the parking demand. We note that the Council officers had indicated a preference for landscaping of the site rather than a provision of on-site parking.

74 We are satisfied that there is sufficient on-street capacity to absorb the parking demand created by the proposal for its every day use. The evidence presented to us was confirmed by our observations. There will be occasions when the average peak demand may be exceeded, such as the annual general meeting when about 100 people would be expected to attend the premises, but we do not consider this to be unacceptable given the frequency of that event. For reasons we have discussed above we have imposed conditions limiting the after hours operation of the proposal primarily on amenity grounds related to after hours parking in residential streets and subject to these conditions we are satisfied that a reduction in the provision of parking is warranted.

75 Notwithstanding the above, the proposal does involve an increase in floor area floor area of 321m2 to be used for the Help Line service, the central administration and its associated services. We are of the view that some on-site spaces should be provided to cater for some of the long term parking for staff, or evening parking for the staff and volunteers of the Help Line service.

76 We have reviewed the indicative parking plan tabled at the hearing which shows 10 spaces, seven in the front area off Grange Road and three off Elnido Grove. We accept that car parking in the front setback is neither practical nor desirable. There is currently no vehicular movement from Grange Road and the existing crossover to Grange Road is not of a width to allow for vehicular access. If the Flowering gum is to be retained, which we think is desirable, access from Grange Road is not practical.

77 It is our view however that 5 car spaces accessed off Elnido Grove is possible, allowing for tandem arrangements. We are also of the view that it is still possible to landscape the balance of the open area off Elnido Grove to soften the visual appearance of the car parking. We will impose a condition on the permit to this effect.

78 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit issued.

79 In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

[1] Del Rio vs City of Maribyrnong (15AATR2-1995).