Victorian Civil and Administrative Tribunal|2007-06-06

South Eastern Samoan Assembly of God Inc v Greater Dandenong CC [2007] VCAT 1026 (6 June 2007)

S 77 Planning and Environment Act - Greater Dandenong Planning Scheme - Industrial 1 zone - Place of Worship - planning policy - appropriateness of the use - car parking.

South Eastern Samoan Assembly of God Inc v Greater Dandenong CC [2007] VCAT 1026

Before the development starts, three (3) copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be in accordance with the plans submitted with the application, but modified to show:

1.1. The dimensions of car spaces amended to accord with either the standard set out in the Planning Scheme [4.9 metres by 2.6 metres], or the Australian Standard [5.4 metres by 2.5 metres] with appropriate access aisles.

The use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Except with the further consent of the responsible authority the only church services that may be conducted between the hours of 7.00am to 5.00pm Monday to Friday are funeral services.

Except with the further consent of the responsible authority, the maximum number of persons on the site at any given time must not exceed 100 persons.

Except with the consent of the responsible authority, social functions such as wedding receptions, parties etc, must not be carried out on the site. This condition does not apply to the following annual events:

Mother's Day Lunch
- Father's Day Lunch
- Children's Day Lunch

Before the use of the land commences, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be line-marked to indicate each car space and all access lanes. Parking areas and access lanes must be kept available for these purposes at all times, to the satisfaction of the Responsible Authority.

Goods, materials, equipment and the like associated with the use of the land must not be displayed or stored outside of the building at any time.

The amenity of the area must not be detrimentally affected by the use or development on the land, through the:

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

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

No external public address system shall be installed or otherwise operated on the site, unless with the further written consent of the Responsible Authority.

Bins or other receptacles for any form of rubbish or refuse must not be placed or allowed to remain in view of the public and offensive smell must not be emitted from any such receptacle.

The site shall be kept in a neat and tidy condition at all times, all to the satisfaction of Responsible Authority.

12.1. The use does not start within two (2) years of the date of this permit,

12.2. The use is discontinued for a period of two (2) years.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

The responsible authority is directed to issue a permit in accordance with this order.

Ms J Lardner, Barrister, instructed by J N Martin and Partners, Lawyers.

On 26 June 2006, the South Eastern Samoan Assembly of God applied to the Greater Dandenong City Council for permission to use an existing factory building at 50 Dandenong Street Dandenong South [the site] for a "Place of Worship". The council advertised the permit application. It did not receive any objections. Despite this, the council decided to refuse the permit application on 7 grounds. In summary the grounds of refusal assert that the proposed use of the land fails to comply with several of the objectives and strategies set out in both the State and Local Planning Policy Frameworks; it is not in accordance with the purpose of the zone; it is inappropriately located and inadequate car parking is provided. The applicant is requesting that I set aside the council's decision and grant a permit.

After having considered the submissions and evidence, the details of the proposal and the relevant matters to be considered under the planning scheme and legislation, it seems to me that the key issues relate to whether the proposal is contrary to policy and the purpose of the Industrial 1 zone and the adequacy of car parking provided.

The site is located on the north side of east-west leg of Dandenong Street, south of Cheltenham Road. The site is rectangular with a frontage of 21.34 metres, a depth of 71.32 metres with an overall area of 1522 square metres. The site is occupied by a single storey commercial/industrial building that incorporates a modest mezzanine level. Although its construction suggests that its intended use was originally for commercial/industrial purposes, since November 2006, the building has been used as a 'Place of Worship' by the applicant.
Contextually the site is located within an established industrial area with surrounding properties occupied by buildings that are mainly used for small to medium sized manufacturing and service industries. Dandenong Street is a relatively wide with a pavement that has a kerb to kerb width of about 12 metres that allows for unrestricted parking on both sides. The site is also relatively remote from residential areas, the most proximate being the new estate off Cheltenham Road. The nearest public transport is a bus service running along Cheltenham Road.

The proposal involves the use of the existing building as a "Place of Worship" by the South Eastern Samoan Assembly of God. This congregation was established in 1995 and has operated from various premises including school and scout halls in Springvale and Doveton. In August 2006, the applicant purchased the site and church services started in November 2006 without a permit. Although the use started without a permit, Mr Rowntree advised that the council only became aware of this when it received the evidence reports that are now before the tribunal.
Originally known as the Dandenong Samoan Christian Church, the church now has a congregation of about 100 people comprising people of Samoan, New Zealand and Australian origins. Most of the congregation is from the wider Dandenong area which includes Narre Warren, Springvale and Hampton Park; however, some families located in the northern and western suburbs also attend services.
The activity that is likely to generate the most attendance at the premises is the services. It is anticipated that up to 100 persons could attend services on Sundays; the occasional wedding services on a Saturday afternoon and memorial services to be conducted on weeknights after 7.00pm. Funeral services would however be conducted during daytime hours on weekdays , again with an anticipated maximum attendance of about 100 people. At other times, the premises would be used as an administrative centre and for various meetings with no more than 30 persons in attendance as well as for Sunday school before the morning church service.
Seventeen car parking spaces are to be provided on the site.

Under the planning scheme, the site is zoned Industrial 1. There are no overlays. In this zone, "Place of Worship" is a Section 2 or permit required use. Decision guidelines at clause 65 require a range of matters to be considered including planning policy; the purpose of the zone, orderly planning and the impact on the amenity of the area.
Car parking requirements are at clause 52.06. Applying the car parking rate in the table to the clause, 221 spaces should be provided. However, under clause 52.01-1, a permit can be granted to reduce or waive the parking requirements having regard to a number of factors including an empirical assessment of parking demand and the availability of parking in the area.
There is a raft of planning policies that are in some applicable to the consideration of this proposal. These policies were set out in some detail in Mr Rowntree's submission and Mr Linke's evidence report. However, in summary, the relevant policies include metropolitan development at clause 12; industrial land use policy at clause 17.03; and clauses 21.04-2 and 21.04-3 of the MSS which relate to industrial land use and the municipality's CAD. I will refer to the policies as appropriate later in these reasons.

The first purpose of the Industrial zone is to implement planning policy. It is the council's contention that the proposed use of the site is inappropriate given the policies and strategies set out in both the state and local sections of the planning scheme. In this regard Mr Rowntree referred to the provisions of clause 12, which reflect the strategic directions set out in the metropolitan strategy Melbourne 2030, that call for activity centres to be developed as the focus for business, shopping, working, leisure and community facilities. Further Mr Rowntree pointed to the strategies at clause 12.04-2 that seek to prevent the loss of industrial land to uses that are better located in Principal and Major Activity Centres. It was submitted that the proposal is contrary to both these policies; first on the basis that it does not locate a community use within the preferred activity centre location and, secondly, the use would occupy valuable industrial land.
In general terms, planning policy encourages the agglomeration of various commercial, recreational and community uses into activity centres. This is particularly so with respect to uses that generate considerable activity. This is to take advantage of the synergies that can exist between commercial, recreational and community uses; to make efficient use of valuable commercial land and to maximize the use of infrastructure like public transport. The aim of all this is to enhance the economic sustainability of activity centres and to facilitate multi-purpose trips. The proposition put forward on behalf of the council is that a use like that proposed in this case should be located within or adjacent to a major activity centre, like Dandenong's CAD, to bring about these benefits.
It would not be inappropriate for the proposed use to be so located, however, in this case it seems to me that the council has somewhat overestimated the benefit. The congregation associated with the church at about 100 people is very small. It is a church that generates most of its activity on Sundays. Very modest levels of activity occur on the other days of the week. For example, I was advised that since the establishment of the church some 12 years ago, it has conducted only 2 funeral services. The use is not one that generates a high level of activity or trips during the main weekday period.
On the contrary, this is a use that generates little to modest activity. As such, I question the appropriateness of requiring a small church like this to be located within one of the municipality's main activity centres. Given the modest level of activity, it is my view that the use of valuable commercial land in this way is somewhat inefficient.
In this context, I do not consider that planning policy should be applied in such an inflexible way as to suggest that there is a strategic imperative for relatively low key uses like this to be located in main activity centres. This is particularly so when, as suggested by Mr Linke, it is commonplace to find churches outside activity centres and on land zoned for various purposes. In this sense, I do not consider that policy should be applied in such a way that the location of a small church of this type within an activity centre should be seen as a strategic imperative.
The purpose of the zone also makes a clear statement that land is to be made available for manufacturing industry as well as for the storage and distribution of goods. Policies, such as clause 17.03, seek to protect industrial areas from the unplanned encroachment of inappropriate uses that may create conflict and, therefore, adversely affect the viability of industries.
While it is clear that the proposed use is not of an industrial nature, it does not follow that it should therefore be regarded as being inappropriate because it is not mentioned in the zone purpose. The use is discretionary within the zone. It is not prohibited. While I agree that the provisions of clause 31.01 say that it should not be assumed that a permit will be granted because discretion to do so exists, as noted by the tribunal in Cooke v Greater Geelong CC[1], section 2 uses should not be treated as prohibited whether or not they are specifically mentioned in policy statements.
In this regard, Ms Lardner referred to several cases involving the establishment of adult sex book shops in industrial area. In those cases it was also argued by the respective councils that such use does not accord with the purpose of the zone. However, the view taken by the different tribunals is perhaps best summarized by the following comments set out in Mayfair Chain v Wyndham CC[2] decision:

4. The first ground of refusal is that a retail use is contrary to the purpose of the Industrial 1 Zone. It is not really true to say it is contrary to the purpose unless it prevents that purpose being achieved. The purpose does not envisage that no non industrial or no retail uses will be tolerated. It does seek to retain the land in the zone generally for industrial purposes. However, it is recognised that some retailing, specifically to serve the needs of the area and people working in the area, can be appropriate. There is, for example, a sandwich shop located fairly close to the review site.

5. The proposed adult sex bookshop does not particularly serve the needs of the industrial area, but neither is it incompatible with the area and the planning scheme, to some extent, recognises this zone as a possible appropriate place for such a use. Shops are prohibited in the zone save for several particular exceptions including an adult sex bookshop. That contemplates the possibility of such a facility in this zone, subject to the location being suitable from other points of view.

I take a similar view in this case. It is difficult to see how the use of the site for a place of worship of the scale and type proposed would adversely affect this industrial area. The use is to be located within an existing industrial building. If the use ceases, this building would be available for industrial/warehouse use. The main peak times at which the church will operate do not usually coincide with those of the surrounding industrial uses.
I do not accept Mr Rowntree's assertion that a church is a "sensitive use" which would not be able to tolerate noise generated by industry for 2 reasons. First, the site is not located in an area where heavy noisy industry exists. Second, with the exception of funerals which on past history would occur infrequently, church services are conducted at times when industries like those found in this area are unlikely to be operating. As such I do not see much scope for the conflict envisaged by Mr Rowntree. Indeed, it seems that the owners and occupiers of surrounding industrial properties do not share the council's concerns about the proposed use. Despite the proposal being advertised twice [once by the council and the other at my direction after some of the details of the proposal changed], no objections have been received.
In my view, the use of this site for a small church would not stop the zone purpose from being achieved. It is a use that can be accommodated and can exist harmoniously with surrounding industrial uses. It would not prejudice the ability for other land to continue to be used for industrial purposes in accordance with the zone purpose.
Further, it must also be remembered that activity centre and industrial policies do not comprise the entire policy matrix that is relevant to the consideration of this proposal. State policy also states that "planning is to recognise social needs by providing land for a range of accessible community resources...." which include "community support facilities." I would regard a church as a type of community support facility.
At the local level, it is relevant to note that the council's mission, as expressed in its MSS, includes promoting cultural diversity, fostering and providing mutual support and caring for people as well as building on the strengths of the municipality's multi-cultural community. It seems to me that facilitating the establishment of a church that supports and provides for the spiritual needs of a small group of people within the community would go some way to achieving these important principles. Bearing this in mind, I consider the following comments that I made in the case of Cao Dai of Tayninh Holy SeE Parish of Melbourne v Maribyrnong CC[3] to be equally applicable to this case:

42. In my view the upshot of the above is that the MSS gives specific recognition to the value and contribution which Maribyrnong's ethnic communities make to the municipality's social diversity and economic development. It is regarded as an asset and one which is to be enhanced. It also recognises that the needs associated with having a diverse community must be provided for in an orderly way. This includes providing for, amongst other things, religious facilities which are a fundamental component to the community's social well being. Accordingly, I find that there is considerable support within the MSS for the provision of a facility such as that which is being proposed here.

In fairness, the council is not saying that a church should not be provided for this community. Rather, it is saying that this is not the appropriate location. While I appreciate the council's desire to have the church establish within one of the municipality's main activity centres, consideration must also be given to the applicant's ability to do so. This is a very small fledgling church. It has operated out of school and scout halls for a number of years. It has a small congregation. I would expect the church to have limited financial means. It is very probable that financial factors would constrain the church's ability to find suitable premises that are large enough and suited to its needs within or adjacent to an activity centre.
Mr Rowntree asserted that the proposal is unacceptable on the basis that it does not provide adequate car parking on site. The empirical assessment of parking demand presented by Ms Dunstan suggests that up to 30 spaces would be required if and when 100 people are on the site. Only 17 spaces can be provided on the site, leaving a shortfall of 13 spaces. Mr Rowntree agreed with Ms Dunstan's assessment in this regard.
I do not find the shortfall to be significant given the context of the land and the way that the proposed use will operate. By and large the activity that has the potential to generate up to 100 people on the land is the services. These would mainly occur outside the hours during which the surrounding industries operate. The evidence shows that ample kerbside parking would be available during those times. While there may be greater pressure for on street parking when funerals are conducted during the weekday daytime period, it must be remembered that these occasions would be few and far between. As I understand it, only 2 funerals have been conducted since the church's inception.
While not condoning the commencement of the use without a permit, it is also worth noting that the church has been operating for about 6 months. I am not aware that the council has received any complaints about its operation and impacts with respect to matters such as car parking. Indeed, the council only became aware that the use had commenced after it received the expert witness reports for the hearing. This suggests that the church has been able to operate in harmony with surrounding industrial activity.
The question that needs to be asked is whether the community is better off with the church in this location or without the church? In my view, there is no policy or zone imperative to that would clearly militate against the grant of a permit in this case. The achievement of outcomes that are sought by the scheme's policies and strategies as well as the purpose of the zone would not be compromised. Rather, the provision of a facility that meets the needs of a small group within the community in a way that does not prejudice surrounding land use and activity would enjoy the support of both policy and the purpose of the zone. There was nothing put forward to demonstrate that the church's activities would conflict with those of surrounding industrial uses or that amenity problems would arise.
Accordingly, my conclusion is that the community would be better off with this proposal.
I will therefore set aside the council's decision and direct the grant of a permit.

South Eastern Samoan Assembly of God Inc v Greater Dandenong CC [2007] VCAT 1026

At a glance

Court

Decision date

Source

Judgment (38 paragraphs)

South Eastern Samoan Assembly of God Inc v Greater Dandenong CC [2007] VCAT 1026 (6 June 2007)

Parties