Yarra Planning Scheme - Mixed Use Zone - adjoining student accommodation

2. The Tribunal directs the Responsible Authority to issue a permit in accordance with the Notice of Decision to Grant a Permit dated 22 June 1999 with the following variation:

A suitable fence to the north and south boundaries of the site to the satisfaction of the Responsible Authority.

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Mr M Gorman appeared on behalf of the Responsible Authority.

Mr S Morris QC of Counsel, instructed by Best Hooper Solicitors, appeared on behalf of the Respondent. Mr Morris QC called two witnesses: Mr S Hunt, Traffic Engineer; and Mr P Fearnside, Acoustic Consultant.

Ms Bernadene Sward, Ms Terry Gliddon and Mr Paul Learmonth appeared in person.

1. This is an application for review of a decision of the Yarra City Council to grant a permit for a car park at 23 Mason Street, Collingwood.

2. The application for permit is as a result of the granting of Permit 980764 for a student and attached housing development at 39-59 Victoria Parade, Collingwood. The granting of this permit was the subject of an application to the Tribunal, 1999/005035. The Tribunal upheld the Responsible Authority's decision to grant a permit.

3. Condition 4(a) of Permit 980764 required the owner of the land to enter into an agreement pursuant to section 173 of the Planning and Environment Act 1987 to provide for the provision of 11 car spaces on adjoining land to be made available for use by residents of the student housing development.

4. An application for permit for 9 car spaces with a large area of landscaping to the front of the land addressing Mason Street had been lodged with the Responsible Authority prior to the determination of the Tribunal in 1999/005035. As a consequence of the determination the application was amended. The current proposal provides for 11 car spaces to be provided at 23 Mason Street, Collingwood as required in condition 4(a) of Permit 980764.

5. The Grounds of the Application were summarised in the Responsible Authority's submission as follows:

1) The proposal does not address adequately parking shortfall for the adjacent student housing development.

2) Failure of developers to pursue alternative parking provisions.

3) Reduction the proposed landscaping from the advertised plans.

4) Amended plans not readvertised, and owner of land to the west consequently unaware of the changes.

5) Diminution of Little Oxford Street and the laneway through parking on both sides ;

7) Loss of amenity to Mason Street due to addition to existing car parks in the areas;

8) Existing carpark on site has been minimally used, in particular at night and on weekends;

9) Loss of `footpath' along the site of the proposed carpark site;

10) Proposal in breach of previous negotiations to ensure that traffic to and from the site would not cause an increase in traffic flow in Mason Street.

6. The land is a vacant rectangular area with a width of 6.98 metres and a depth of approximately 30.5 metres. It appears to be currently used for car parking.

7. The land is on the southern side of Mason Street, which runs one way west to east. It is abutted by a right of way to the east and south. To the east across the right of way is the student housing development the subject of Permit 980764.

8. To the south of the land are several two storey office buildings fronting Victoria Parade. To the west is a row of single storey attached houses fronting Mason Street. The wall of the easternmost of these abuts the western boundary of the land.

9. Warehouse/industrial buildings are to the north of the land across Mason Street as well as a church to the north east.

10. The land is within a Mixed Use zone in the Yarra Planning Scheme. A permit is required to develop and use land for a car park. The land is also within Heritage Overlay Area HO327 (Victoria Parade Precinct). A permit is required to construct or carry out works.

* 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 a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

12. The Responsible Authority considers as the proposal is to be used in conjunction with the approved student housing development it should be considered within the Municipal Strategic Statement's objectives in relation to Residential land Use and Development which include:

* A sustained reversal of Yarra's decline in population

* Retention of a diverse housing stock (type, tenure and affordability) to support continued diversity in population with respect to age, ethnicity and socio-economic profile.

13. The proposal linked with the student housing development is the Responsible Authority states supporting the above objectives.

14. Written and oral submissions and photographs were presented to the Tribunal. The Tribunal has inspected the land and its surrounds.

15. There were a number of issues raised by the applicants for review which appeared to relate more to the previous application in relation to the student housing development of which the applicants in this matter were also the applicants for review before the Tribunal.

16. In considering this application the Tribunal is confining its consideration as to whether it is appropriate to use this particular land the subject of the proposal as a car park. It was contended this is not the only land that could be considered for car parking associated with the student housing development. This may be so, but the Tribunal agrees with the Responsible Authority this land is the subject of this application for car parking and it is a question of whether this is an appropriate use for this land.

17. The previous decision of the Tribunal in 1999/005035 upholding the grant of a permit for the student housing development considered the provision of car spaces on the student housing site and considered that an appropriate number were provided along with the provision of 11 spaces off the site on nearby land. The Tribunal will therefore not revisit any issues raised in relation to car spaces on the student housing development site.

18. The Tribunal considers there are two issues raised by the resident applicants for review. They contend that they will suffer from a diminution of amenity if the land at 23 Mason Street is used as a car park. This diminution of amenity will be as a result of noise and increased traffic during the day and as well at night. The area it was said has experienced night noise nuisance for a number of years from local businesses.

19. They consider they already suffer noise nuisance and lighting problems from nearby car parks. On inspection by the Tribunal it was noted there is a car park to the west of the land in Mason Street which relates to the offices of McDonalds on the corner of Smith Street and Victoria Parade. There is also a number of warehouses/industrial uses on the northern side of Mason Street.

20. It was submitted that the land at 23 Mason Street has for a number of years been used as a car park. This was disputed by the residents, in their view it was a vacant lot that had a couple of vehicles parked on it during the day. The Responsible Authority indicated it was unaware of any previous complaints regarding its use as a car park. Cars were observed parked on the land at the time of the Tribunal's inspection of the area.

21. The car park will be right to the wall of the first house in Mason Street and will result in a small residential island being enclosed by car parks.

22. Mr Stephen Hunt, Traffic Engineer on behalf of the permit applicant provided to the Tribunal the turning movement counts undertaken at the intersection of Mason Street/Oxford Street and the laneway on the Thursday, 11 June 1998 from 7am - 9am and 3pm - 6.30pm, these counts had been undertaken in relation to the proposed student housing development. The applicants for review were critical that an independent traffic assessment had not been undertaken by the Responsible Authority. The Responsible Authority appeared unaware of any request having been made.

23. The count indicated that at the peak periods of 7.30am - 8.30am and 4.30pm -5.30pm 28 and 26 vehicles travelled eastbound in Mason Street. From the figures it was estimated Mason Street carries approximately 270 vehicles per day. The laneway traffic for similar times was 5 and 3 vehicle movements which also included vehicles parked on the subject site.

24. Mr Hunt concluded that traffic volumes generated as a result of the proposal would have minimal impact on the existing operating conditions in the laneway and Mason Street with 16 car spaces being provided which had access to the laneway, including the 11 spaces on the subject site, the peak hour traffic generation would be in the order of 8 vehicle movements.

25. With approximately 270 vehicle movements per day in Mason Street the Tribunal accepts Mr Hunt's submission that the additional vehicle movements from the subject site will cause minimal impact in Mason Street.

26. Mr Hunt agreed with the requirement of the Responsible Authority that a splay be provided on the south east corner of the landscaped area to facilitate access to the northernmost car park. He also considered as standard construction the Responsible Authority requirement that there be a barrier to separate the parked cars from the wall of the house to the west otherwise the proposed car space dimensions of 4.9 metres x 2.6 metres accords with the requirements in Clause 52.06-4 of the Yarra Planning Scheme as does the aisle width of 6.5 metres.

27. Mr Fearnside, acoustic consultant, provided evidence to the Tribunal that the average background noise level (L10 ) on 30 September 1999 between 2230 - 2330 Hrs was 51dB(A) and the measured background (L90) was 42dB(A). This he stated was typical of an inner city area dominated by traffic noise.

28. Mr Fearnside relied on research carried out in relation to sleep disturbance where if the number of noisy events exceeds 10 in a night time then if the minimum level of noise is 47dB(A) there will be minimal sleep disturbance, if this is increased there could be some sleep disturbance and if the noise level reached above 54dB(A) then approximately 10 percent of the population may be awakened.

29. In Mr Fearnside's opinion, assuming 10 vehicle movements then such movements would result in noise levels of less than 47dB(A) for a worst case vehicle and 43dB(A) for normal vehicles. As a result it was unlikely the noise levels would exceed the recommended sleep disturbance criterion of 47dB(A).

30. He considered a normal vehicle noise level of 60 - 67 dB(A) and worst case vehicle noise level of 75dB(A) at 10 metres during start up and accelerating and based on these levels and considering the likely number of vehicle movements into the car park between 2200 - 0700 Hrs it was unlikely that the recommended sleep disturbance criterion would be exceeded.

31. The type of car activity likely to occur on this site would most likely result in noise of braking, doors slamming and cars accelerating away from a stationary position.

32. Mr Fearnside expressed the view that to minimise sleep disturbance a maximum noise level of 57dB(A) should not be exceeded outside an open window and 67 - 72dB(A) outside a closed window. An open window produces an outside to inside noise reduction of approximately 10dB(A) and a closed window 20 - 25dB(A).

33. There is a window in the house to the west which overlooks the car park and is in the wall that abuts the western boundary of the car park. This window is not to a bedroom. Mr Fearnside indicated that the measured noise level of vehicles travelling along Mason Street at the facade of the residential properties was 70 dB(A), this would he stated already result in some sleep disturbance.

34. Accepting a high level is already being experienced it is in the Tribunal's view and accepting mr Fearnside's evidence, unlikely that the additional 10 vehicle movements likely to be generated at this site would result in any increase to the current levels already being experienced. It is therefore considered that the traffic to the car park particularly at night, which was of concern to the residents will not result in any increased impact on the level of amenity the residents currently experience.

35. The original proposal which was amended as a result of the Tribunal's decision requiring 11 car spaces has had its landscaping element reduced. This it was contended was detrimental to the area. The area now proposed is approximately 12 square metres in depth across the front of the site. There is minimal setbacks from the street to the houses in Mason Street resulting in a minimal area for planting at the front of each property. The area proposed in front of the car park and addressing the frontage to Mason Street is in keeping with the other properties and considered reasonable. It is not suggested that the car park has to be so screened as not to be aware of its use. Landscaping will however present it as softer to the street, similar to the existing houses.

36. The Responsible Authority in its notice of decision to grant a permit has suggested at condition 1(e) requiring "a solid or semi-solid fence to provide a sense of enclosure around the site including the landscaped area in the north of the site, and along the edge of the southern most carspace on the southern boundary on the site:" The permit applicant contended it was unnecessary to enclose the rear and a more open type of fencing may be more appropriate. The Tribunal considers that fencing of the site to the front and rear is appropriate. The type of fencing and as to whether part of the landscaping is in front of the fence is considered a matter that can be resolved between the permit applicant and the Responsible Authority. The Tribunal will vary condition 1(e) to require a suitable fence along the north and south boundaries to the site to the satisfaction of the Responsible Authority.

37. The Tribunal was requested to take into account that it was students who were to use the car park and the mere fact that the drivers of the vehicles accessing the car park were students would result in noise. In the Tribunal's view it is irrelevant as to whether it is students or other persons intended to use the car park.

38. It is considered that the site is appropriate for a car park, the number of vehicles accessing the car park will have minimal impact on the area given the traffic currently in the area, the number of vehicles will not result in any increase in the level of traffic noise already being experienced by the residents. For these reasons the Tribunal will disallow the application for review and direct the Responsible Authority to issue a permit generally in accordance with its Notice of Decision to Grant a Permit dated 22 June 1999 but with Condition 1(e) to be varied to read: "A suitable fence to the north and south boundaries of the site to the satisfaction of the Responsible Authority."

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