Victorian Civil and Administrative Tribunal|2004-02-16

The King David School Holdings Pty Ltd v Stonnington CC [2004] VCAT 239 (16 February 2004)

Application for Review under section 79 Planning and Environment Act 1987, education centre, Residential 1 zone, Heritage Overlay, amenity, car parking, traffic, policy.

The decision of the responsible authority is set aside. A permit is granted and directed to be issued for the land at 373 - 375 Dandenong Road, Armadale.

The use of the land for the purpose of an Education Centre, the construction of a building and the construction and carrying out of works for an education centre, demolition of buildings and the construction of a building and the construction and carrying out of works under the Heritage Overlay, alteration of access to a road in a Road Zone Category 1.

1. Before development starts, amended plans to the satisfaction of the Responsible Authority 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 drawn to scale with dimensions and three copies provided generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal on 8 December, 2003 but modified to show:

(a) The provision of an acoustic fence along the full length of the western boundary of the site adjoining the driveway providing access to the rear car park.

(b) The screening of the windows in the gymnasium to prevent overlooking. Such screening to be designed so as not to affect the heritage significance of the building.

2. Prior to the commencement of the use a parking management plan for activities that occur outside normal school hours must be submitted to and approved by the responsible authority. Once approved the plan must be implemented to the satisfaction of the responsible authority.

3. Prior to the commencement of the use a disabled access management plan must be submitted to and approved by the responsible authority. Once approved the plan must be implemented to the satisfaction of the responsible authority.

4. Prior to the commencement of the use a parking, traffic and pedestrian management plan must be submitted to and approved by the responsible authority. Once approved the plan must be implemented to the satisfaction of the responsible authority.

5. Prior to the commencement of the use a tree management plan must be submitted to and approved by the responsible authority. Once approved the plan must be implemented to the satisfaction of the responsible authority

6. No religious services other than religious education forming part of the normal school curriculum must occur on the land.

7. Except with the further consent of the Responsible Authority, the days, hours and activities of the use permitted are to be as follows:

8. Use of the land for school purposes outside the hours provided in condition 7 is permitted provided that;

(a) The activity is for a school purposes including but not limited to parent teacher interviews, additional classes, School Council meetings, guest lectures and principal's forums.

(b) The use must be concluded by 10pm and all cars have left the site by 10.30 pm

9. No more than 300 students may be enrolled at and attend the campus operating on the land.

10. Except on days when ordinary classes are not conducted no more than 22 members of staff may be present on the campus at any one time except with the written consent of the Responsible Authority.

11. The doors to the multi purpose room must remain closed when the room is in use. The multi purpose room must not be used for sporting activities after 6.30 pm on any night.

12. Prior to the commencement of the works a landscaping plan must be submitted to the responsible authority and when endorsed will form part of the permit. The landscape plan must accord generally with the Landscape Plan prepared by John Patrick Landscape Architects dated November 2003 and considered by the Victorian Civil and Administrative Tribunal but amended to show;

(b) The botanical name and/or common name, height and width at maturity and location of all vegetation to used.

(d) Details of maintenance requirements including maintenance systems for the landscaping.

13. The landscaping works shown on the endorsed plans must be completed within three months of the completion of the works hereby permitted to the satisfaction of the responsible authority and then maintained to the satisfaction of the responsible authority.

14. Prior to the commencement of the works hereby permitted a conservation management plan for Frank Tate House, prepared by a suitably qualified person, must be submitted to the responsible authority and when endorsed shall form part of this permit.

15. Before the use starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a) Constructed to the satisfaction of the Responsible Authority.

(b) Properly formed to such levels that they can be used in accordance with the plans.

(d) Drained and maintained to the satisfaction of the Responsible Authority.

(e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

(f) Appropriately sign posted as to access and use entitlements.

(g) All driveways and access ramps to car parking spaces to comply with the relevant provisions of the Stonnington Planning Scheme.

Parking areas and access lanes must be kept available for these purposes at all times.

16. Vehicle crossings must be constructed in the locations shown on the endorsed plans to a standard satisfactory to the Responsible Authority.

17. Air extraction fans, air conditioning and all other plant and equipment installed on the subject buildings shall be baffled in accordance with the requirements of the Environment Protection Authority. Ventilation systems shall be designed and installed in accordance with relevant Australian Standards to the satisfaction of the responsible authority.

18. Any external lighting must be designed, baffled and located to suitably manage any adverse effects on adjoining land to the satisfaction of the Responsible Authority.

19. All plant and equipment must be generally contained within the envelope of the buildings and concealed to the satisfaction of the Responsible Authority.

20. The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.

21. The emission of noise or any other emission to the environment derived from activities on the site shall conform to standards contained in the appropriate State Environment Protection Policy of Policies, and must meet the noise limits and recommendations set out in the Statement of Elizabeth Hui at paragraphs 4.5, 5.12, 5.13, 6.3 and 8.3 of that Statement, all to the satisfaction of the Responsible Authority.

22. No external public address system may be used at any time except for emergency use.

23. The installation, maintenance and use of any intruder alarm system shall at all times conform with the EPA Audible Intruder Alarm Regulations 1978.

24. During the construction phase of the permitted development the following conditions shall be met:

(a) only clean water shall be discharged to the stormwater drainage

(b) stormwater drainage system protection measures shall be installed

as required to ensure that no solid waste, sediment, sand, soil, clay

or stones from the premises enters the stormwater drainage system;

(d) all machinery and equipment must be cleaned (if required) on site

(e) all litter (including items such as cement bags, food packaging and

plastic strapping) must be contained within the site boundaries, and

(f) all site operations shall comply with the Environmental Protection

25 Prior to the commencement of construction or any works on the site (including demolition and material removal) the applicant must submit for approval to the Responsible Authority a Construction Management Plan Construction must be carried out in accordance with the plan to the satisfaction of the Responsible Authority. The plan must address, but not be limited to the following:

(a) containment of dust, dirt and mud within the site and method and

frequency of clean up procedures in the event of build up of matter

(b) control of erosion and sediment in accordance with incorporated

document 'Construction Techniques for Sediment Pollution Control'.

(d) delivery and unloading points and expected frequency;

(e) a liaison officer for contact by residents and the Responsible

Authority in the event of relevant queries or problems experienced;

(f) an outline of requests to occupy public footpaths or roads, or

(g) any requirements outlined within this permit as required by the

26. Except with the written consent of the Responsible Authority, construction works must only be carried out between: 7 am - 6 pm, Monday-Friday (including public holidays) and 9 am - 5 pm, Saturday. No work is to be carried out on Sundays. All site operations must comply with the relevant Environment Protection Authority Guidelines on Construction and Demolition Noise.

27. Adequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area shall be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.

28. All garbage collection from the development must be managed and conducted to the satisfaction of the responsible authority.

29. The applicant will splay and/or make the walls adjacent to the exit driveway, of such height that maximises sight lines to passing vehicles and pedestrians to the satisfaction of the Responsible Authority.

30. The new exit (4m-4.5m wide) must be angled to promote exit only movement and be a width to promote sight lines between exiting school vehicles and Dandenong Road pedestrians. The exit gateway should be flared to further promote these lines of sight.

31. Any redundant vehicle crossovers shall be removed and the footpath, naturestrip and kerbing reinstated to the satisfaction of the Responsible Authority.

32. All car parking spaces shall be designed to allow vehicles to drive forwards when both entering and exiting the property.

33. The applicant shall pay the full costs of all roadworks, service relocations, signage and other costs associated with the works.

34. Functional layout plans of the proposed access arrangements shall be submitted to VicRoads for approval.

35. As part of the functional layout plans, the applicant must submit a written confirmation that sight distance requirements are in accordance with AUSTROADS.Traffic Engineering Guidelines Part 5 Chapter 5.

(a) The use and development is not started within 2 years of the date of this permit; or

(b) The development is not completed within 2 years from commencement of construction.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Mr M Dreyfus QC and Ms T Cincotta of Best Hooper Solicitors.

Mr C Wren of Counsel instructed by Secombs Solicitors appeared on behalf of B O'Connor & Ors, C & R Menzies, M & U Ghadamiam, H & M Margolis, Dr G & Mrs M Cheyne, R Steinic, & B Kirby.

1 This is an Application under Section 79 of the Planning and Environment Act 1987 ("The Act") brought by The King David School Holdings Pty Ltd to review the failure of the City of Stonnington ("The Council") to grant a permit within the prescribed time.

2 Subsequent to the commencement of the Application for review the Council resolved that had an Application for Review not been commenced it would have refused the application on the following grounds;

1. The proposed school will result in increased traffic and parking impacts in the surrounding residential area that will have a detrimental amenity.

2. Inadequate assessment has been provided regarding the traffic impacts on Dandenong Road from the operation of the one way driveway within the school grounds.

3. Safety concerns for students who will be seeking access to the nearby tram stops have not been adequately addressed.

4. The proposed development would result in unreasonable and unacceptable noise impacts upon adjoining residential properties.

5. The development of the multi purpose room will result in the decline in the health of the large canopy tree in the rear yard of No. 7 Denbigh Road.

6. The site is inadequate to accommodate 300 students and the proposal is considered to be an overdevelopment of the site.

3 At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Dreyfus requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

4 Copies of the revised plans had been forwarded to all parties under the cover of a letter dated 12 November, 2003 detailing the changes and outlining the permit applicant's intention to seek approval for their substitution.

5 The nature and extent of the changes were summarised in Mr Small's evidence as follows :

* The rooms on the ground and first floors between the original mansion and the east wing have been replanned, resulting in the deletion of the southern addition.

* The covered link between the main building and Year 9 Centre has been deleted.

* Four additional car spaces have been provided at head of the loop road (car spaces 23, 24, 25 and 26.).

* The length of car space 13 has been increased to 6.2 metres.

* The length of car spaces 20, 21 and 22 has been increased to 5.4 metres.

* The vehicle entry gate has been widened to 4.0 metres and the roadway splayed to suit.

* The vehicle exit gate has been widened to 3.5 metres.

* The roof height of the multi-purpose room has been reduced to 5.175 metres.

* The parapet height of the multi-purpose room has been reduced to 3.3 metres.

* The glazed bi-fold doors of the multi-purpose room have been replaced with acoustic glazed and sealed double doors with sidelights.

6 There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, we made the amendment in the manner requested.

7 It is proposed to establish a new, senior campus of the King David School on the review site. The campus is intended to cater for year 9 - 12 students with a maximum of 300 students and between 16 to 22 staff being accommodated on the site.

8 A variety of both internal and external buildings and works are proposed to convert the existing buildings and grounds to the proposed education use. Mr Gobbo provided the following detailed description of these buildings and works and of the proposed operational aspects of the use, which we adopt;

The existing driveways of the mansion and dwelling will be retained and will be connected to form a one way loop road. The crossover adjacent to the west boundary will become the entrance and the central crossover will act as the exit. The crossover nearest the east boundary is proposed to become redundant.

It is proposed to provide 26 car spaces on site with 21 of these reserved for staff and 5 for visitors and for short term parking, for example, for parents waiting to pick up children. Bicycle parking will provided for approximately six bicycles at the rear of the property and will be located in the covered area adjacent to the outdoor store. The plans indicate that the 'drop off zone' will abut the verandah on the south of the mansion.

The existing front garden will become a passive recreation zone and significant trees will be retained. A second passive recreation area zone will be provided along the west side of the mansion.

A multi purpose facility is proposed to be developed at the rear of the site and used for a number of activities including indoor sports. The room has been sized to accommodate a volleyball court. There will be no indoor sporting activities in the multi purpose hall after 6.00pm.

Activities to be conducted outside normal school hours will include parent teacher interviews, additional classes, occasional small school functions and school Council meetings. Meetings and classes for parents and others will be held on an occasional basis and will be ancillary to the day to day operations of the campus. The school's calendar of social events varies from year to year and has not been set.

Clauses will commence at 8.15am and conclude at 3.30pm. Before and after school care will also be provided on site.

The sealed open area to the north of the mansion will be available for informal sporting activities during recess and lunch breaks and for formal physical education classes. This space will only be available for use during the daytime and will be supervised by staff during these periods.

The interior of the existing mansion will be reconfigured to provide class rooms, offices, special purpose rooms such as computer and science laboratories, staff and student facilities. Additions will be made to the existing mansion which will include:

* Construction of a ground floor addition for use as a Year 12 study and co-ordinators area (61 square metres). The addition is to be located in the central void between the central and eastern arm of the existing mansion.

* Construction of a first floor addition for use as a Year 11 study, Year 10 & 11 Co-ordinators area (115.5 square meters). The addition is located between the central and eastern arms of the mansion and a passageway is proposed to abut the west wall of the eastern arm.

* Construction of a covered entry from the proposed car parking area. The entry is proposed to abut the proposed theory room.

* Construction of the single storey rear addition in the central wing for use as toilets (7 square metres).

* Construction of a first floor addition to the western wing to abut the east elevation (7 square metres).

* Construction of a decking at first floor level that connects the western and central wings (8 square metres).

* Construction of a first floor gymnasium abutting the north elevation of the central wing (45.3 square metres).

Design of all additions to the mansion to include flat roofing and painted cement sheet walls. It is also proposed to construct a single storey building abutting the north boundary to be used as a multi purpose room (365 square metres). The building is proposed to abut the north, east and west boundaries. The design of the building includes 3.3 metre high boundary walls, curved colorbond roofing and glazed lift up doors in the south elevation.

In relation to number 375 Dandenong Road it is proposed to use the existing dwelling as a Year 9 Centre. The existing west and north boundary fences, swimming pool and garage will be demolished or removed.

9 The review site is located on the north side of Dandenong Road and comprises a double storey Victorian mansion known as Tate House (373 Dandenong Road) and an adjoining double storey, inter war dwelling (375 Dandenong Road). The review site is located within a residential area and has an abuttal with a number of residential properties. Mr Gobbo provided the following very detailed description of the review site and its surrounds which we find to be accurate and which we adopt;

The site is located on the north side of Dandenong Road, approximately 30.4 metres east of Hampden Road. The site consists of two properties described below:

No. 373 Dandenong Road, which has been developed with a double storey Victorian rendered mansion constructed in the late 1890's. The building was graded A1 in the Prahran Conservation Study. The mansion consists of three wings. The dwelling originally included two (2) wings but a further eastern wing was constructed in the 1930's. The building is known as 'Noorilim' or 'Tate House'. The mansion has a history of non-residential uses having been previously used as a hotel, a teacher's hostel and training college.

The site has a 22.5 metre frontage to Dandenong Road and a 48.77m frontage setback that is occupied by the gardens and driveway entry to the mansion. The remaining portion of the allotment is irregular in shape and extends for a further 51.82 metres north. The driveway runs along the western boundary and leads to the rear of the building to an open area that was previously used for car parking. This area is linemarked as a half sized basketball court.

The building has the following setbacks from boundaries:

The site has a slope of 3.4 metres from north to south (rear to front). There is an existing 0.91 metre drainage and sewerage easement along the south east corner of the site. There is an existing 1 metre high brick fence with hedging along the frontage.

No.375 Dandenong Road is developed with a double storey (attic style) Inter War dwelling setback 10 metres from the frontage. There are two (2) existing crossovers to the site and a crossover driveway in the frontage setback. The driveway leads to a brick garage that is located in the north west corner of the rear yard. There is also a swimming pool in the rear yard.

The site has a 19.8m frontage to Dandenong Road and maximum depth of 48.77 metres. There is significant mature vegetation on the site including a 14 metre high Southern Magnolia and a Lilly Pilly within the front setback and sixteen metre high Liquidambar and Elm Trees in the rear yard.

The subject site is located in an established residential area with a mixture of dwelling styles including historic mansions on larger lots, Inter War double storey flats, single storey Federation dwellings and three storey flats.

Dandenong Road is a primary arterial road. Adjacent to the subject site are five (5) traffic lanes. The fifth lane develops into the left turn lane into Wattletree Road.

The site is well serviced by pubic transport including Tram route Nos. 5 & 64 and bus route No. 220.

To the north the site abuts the rear yard of number 37 Hampden Road which has been developed with a single storey dwelling that includes a brick shed (3.6 metres high) in the south east corner that abuts the subject site. The dwelling is setback 1.8 metres from the south boundary. Also to the north is number 13 Denbigh Road which has been developed with single storey brick units. The rear unit includes a wall on the south boundary for a length of 15.3 metres and a height of 3.2 metres. This unit also includes secluded open space in the eastern setback.

To the south along the opposite side of Dandenong Road are single storey dwellings and double storey multi unit developments.

Dandenong Road is an east-west arterial, carrying large volumes of traffic. No standing restrictions operate east of Hampden Road. Between 4.30pm-6.30pm weekdays clearway restrictions apply along the east bound carriageway.

To the west the site abuts number 371 Dandenong Road which has been developed with double storey Inter War flats that also have frontage to Hampden Road. The flats are setback 6 metres from Dandenong Road and include a driveway in the frontage setback. The flats are built to the common boundary and there is a 6.2 metre high brick wall along the boundary. There is a light court in the eastern setback and an exiting tree is located in this area. The canopy of the tree overhands the subject site.

Also to the west are number 45 Hampden Road, a double storey 1930's period detached house that is setback 8 metres from the common boundary and number 43 Hampden Road, an attic style detached house that includes secluded open space in the eastern setback. This dwelling has brick garage in the north east corner. The dwelling is setback approximately 6 metres from the common boundary. Number 41 Hampden Road is a double storey attic style detached house that is setback 7 metres from the common boundary.

To the east the subject site abuts number 377 Dandenong Road occupied by two storey rendered Inter War flats that are setback 1.5m from the common boundary. There are ground and first floor habitable room windows in the west elevation facing 375 Dandenong Road. There are two brick garages in the rear yard that but the west and north boundary. The northern setback is used as a service yard.

Also to the east is number 1 Denbigh Road developed with a double storey brick house that is setback 9 metres in part and 15 metres in part from the common boundary. There are two canopy trees that abut the common boundary. The rear yard also includes a swimming pool. There is 5 metre high fencing along this boundary which is covered with ivy. Adjacent to number 1 is number 5 Denbigh Road which has been developed with three storey 1960's flats that are setback 4.8 metres from the common boundary. The west elevation of the flat includes habitable room windows and balconies at first and second floor level that currently overlook the paved area at the rear of the mansion. There is a 2.2 metre high paling fence along this boundary.

Four storey flats that are setback 2.7 metres from the common boundary have been developed on number 7 Denbigh Road. There are no windows in the west elevation facing the subject site. There is a large canopy tree in the south west corner of the site that over hands the subject site.

10 The review site is zoned Residential 1 under the Stonnington 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.

11 An education centre is a section 2 permit required use in the zone pursuant to clause 32.01-1 and a permit is also required pursuant to clause 32.01-6 for buildings and works for a section 2 use.

12 That part of the review site located at 373 Dandenong Road is affected by a heritage overlay (HO136). A permit is required under clause 43.01-1 to construct or carry out works, construct a building, demolish or externally alter a building. Decision guidelines are at clause 43.01-5.

13 The relevant State and Local Planning Policy provisions are contained in the following clauses;

* Clause 18.02 Car parking and public transport access to development

* Clause 22.06 Residential Character, Amenity and Interface Policy

* Clause 22.07 Discretionary Uses in Residential Areas Policy

14 Our assessment of the application against the outcomes sought to be achieved by the applicable policy framework is included subsequently in this Decision.

Council Consideration and The Application for Review

15 The planning permit application was submitted with the Council in April, 2003 and following the receipt of additional information, notice of the application was required to be given. A total of 79 objections to the application were received by the Council and the main grounds of objection were summarised by Mr Gobbo under the general headings of traffic, amenity, fencing, overlooking, car parking, visual bulk and overshadowing.

16 An Application to review the failure of the City of Stonnington ("The Council") to grant a permit within the prescribed time was commenced in September, 2003. The Council subsequently resolved that had an Application for Review not been commenced it would have refused the application on the grounds previously stated.

17 At the review hearing all parties tabled and read from written submissions and supplemented these with oral submissions.

18 Mr Gobbo called Mr H Turnbull, traffic engineer, of the Traffix Group to give evidence. Mr Turnbull presented a written report and gave oral evidence and was made available for cross examination.

19 Mr Wren called Ms R Hansen, town planner of the Hansen Partnership and Mr P Edwards, traffic engineer of John Piper Traffic Pty Ltd to give evidence. Ms Hansen and Mr Edwards presented written reports and were made available for cross examination.

20 Mr Dreyfus called Mr S Hunt, traffic engineer of Grogan Richards Pty Ltd, Mr P Small, town planner of Urbis JHD, Mr J Briggs, architect and conservation consultant, Ms L Hui, acoustic consultant of Marshall Day Acoustics, Ms M Bernshaw, school principal, Mr A Pizzey, building consultant, Mr J Patrick, landscape architect and Ms R Burgess, education consultant, to give evidence. Each witness presented a written report and gave oral evidence and was made available for cross examination.

21 Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The material submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

22 We inspected the site and surrounds in the company of the parties on the first day of the hearing. At several other times following the hearing the Tribunal observed traffic conditions in the vicinity of the site.

23 The starting point for our assessment of the issues in this matter is whether the site is suitable for the proposed use and building and works, and in this respect we agree with the submission of Mr Dreyfus that there is a long line of Tribunal decisions which emphasise the appropriateness of locating educational facilities within residential areas and on residentially zoned land. Both Mr Dreyfus and Mr Small, a town planner called by Mr Dreyfus to give evidence, referred us to a number of Tribunal decisions in which this general principle had been adopted. However, neither Mr Gobbo nor Mr Wren disputed the validity of this principle. The concerns they raised had more to do with the specific characteristics of this site and its location, its interfaces with its neighbours and the size of the proposed school which in their submissions, has the affect of making this site unsuited to the intended use and the associated development.

24 It was the Council's submission that the review site is unsuited to the proposed use because it is too small to accommodate the activities of a senior school of 300 students and because the site's interfaces with residential properties will make after hours activities unacceptable from an amenity perspective. The Council's concerns in this respect were primarily focussed on the multi purpose facility which is proposed to be constructed at the rear of the site.

25 The Council was also of the view that the traffic and parking issues have not been adequately resolved and that the proposed drop off and pick up arrangements will not work, leading to the use of the surrounding residential streets by parents of students, to the detriment of the amenity of the residents of those streets.

26 Mr Wren, who appeared for a number of the respondents who are residents of properties abutting or located close to the review site, submitted that the proposal represents an attempt to introduce an institutional use into a residential area on a site with several sensitive interfaces and serious site constraints, without proper regard being given to orderly and long term planning considerations. In Mr Wren's submission, the application is opportunistic and ad hoc because it has proceeded in the absence of a comprehensive masterplan for the school. Mr Wren identified a series of amenity impacts which include noise and disturbance associated with the after hours use of the multi purpose facility, the use of the rear basket ball court for after hours car parking and the single access vehicle lane which runs along the western boundary of the site adjacent to the side and rear boundaries of abutting residential properties, loss of visual and acoustic privacy as a result of the use of upper level rooms as classrooms and auditoriums. Mr Wren also supported Mr Gobbo's submission with respect to the car parking difficulties and the likely use of residential streets for picking up and dropping off students. It was further submitted that the size of the site is inadequate in terms of accommodating the needs and activities of 300 adolescents and that this has the affect of both limiting opportunities for reducing amenity impacts and contributing to the likely future expansion of the campus, an occurrence which a properly prepared masterplan is intended to avoid.

27 Both Mr Gobbo and Mr Wren submitted that the amenity impacts of the proposal are entirely predictable because there are many examples of institutional uses, including schools, which have located and expanded in an ad hoc manner throughout the inner suburbs in particular, and which have impacted adversely on the surrounding residential area. Many of these uses are located within the City of Stonnington and Mr Gobbo submitted that the Council had developed considerable experience in dealing with these issues. It is the Council's view that the resolution of these issues is best achieved at the initial planning stage when decisions are made about the suitability of a site for the intended use. It has been the Council's experience that attempts to regulate the activities of an institutional use by the imposition of permit conditions has not been entirely successful especially on sites which are too small or which are poorly located.

28 Mr Wren placed considerable emphasis on the lack of a master plan and in this respect relied on the evidence of Ms Hansen who said;

In my view, one of the major problems with the current proposal is the lack of any Masterplan. The lack of a Masterplan has led to growing uncertainty within the local resident community about the proposal and provides no certainty about the future plans for the site of for other nearby campuses. It is the lack of a Masterplan for the King David School and the desire for the school to expand beyond its current main campus in Orrong road that presumably has led to the purchase of this property for expansion purposes.

In my view, this planning permit application should not be considered until a proper and comprehensive masterplan has been prepared which provides the details required under Clause 22.16-3. The Masterplan can then be incorporated into the Stonnington Planning Scheme.......

29 Mr Wren also referred us to a number of decisions of this Tribunal and its predecessor Tribunals in which principles concerning the issue of school extensions and the need for a masterplan have been considered, adopted and regularly restated (Hooker & Ors v Stonnington City Council, 21AATR, Lowther Hall Anglican Grammar School Limited v City of Essendon, Appeal 1991/019096, Phibbs & Ors v City of StKilda, 12APAD, Islamic Society of Victoria v City of Preston, 18 APAD). The views of the Tribunal in the cases referred to are perhaps best summarised in the decision in Caulfield Grammar School v City of Malvern and Mulder and Others (1992/21542) in which the Tribunal made the following observations;

"In a number of previous Tribunal decisions dealing with similar circumstances, the relevant Responsible Authority required preparation of such a Master Plan either before a decision was made or in the immediate future. The Tribunal endorses that approach. It believes it would be helpful to all parties concerned that such an expression of future intent by the school was prepared in consultation with residents and the Responsible Authority. Experience has shown that medical institutions and educational institutions in particular have a history of expanding. Examples abound. To not prepare a Master Plan is likely to lead to numerous applications on individual development proposals based on ad hoc or expedient circumstances at the particular time. It could lead to a prolonged and expensive approval process, most likely culminating in a decision by this Tribunal. All that process generates concern and anxiety in particular for residents. It should be avoided at all costs and the Tribunal can only urge that such course of action be implemented without delay."

30 The masterplan approach has been adopted by the Council as a means by which to manage the adverse impacts of institutional uses in residential areas, and this is reflected in the local policy at clause 22.16 of the planning scheme which deals specifically with institutional uses in residential areas. The objectives of the policy are (Clause 22.16-2);

* To accommodate, wherever possible, the future use and development needs of institutional uses in recognition of the positive and significant contribution they make to the City.

* To ensure that the future use and development needs of institutional uses take place in an orderly manner and are complementary to the context of the surroundings, especially any surrounding residential areas.

* To provide certainty and to reach consensus on appropriate future use and development for individual institutions and their surrounding community.

* To develop and maintain a cooperative relationship between the responsible authority, the community and the institution on matters relating to the interface between the institutional use and the surrounding area.

31 The policy at Clause 22.16-3 actively encourages the preparation of masterplans and outlines the process through which the preparation of the matserplan out to proceed. The information which ought to be included in the matserplan is summarized and for use and development issues and traffic and car parking issues, specific requirements are also identified.

32 There are a number of observations we wish to make about whether a masterplan ought to be required as a prerequisite to the grant of a permit. Firstly, there is no statutory requirement for the preparation of a masterplan. Secondly, the issues considered by the Tribunal in the cases referred to were primarily concerned with the amenity impacts associated with the expansion of an existing institutional use and in each case the Tribunal found that the amenity impacts of the continuing, unplanned and ad hoc expansion of that use were unacceptable. The preparation of a masterplan was seen as a means by which the operators of institutional uses and their residential neighbours could resolve issues as part of a consultative process which would provide a degree of certainty to both operators and residents.

For reasons which we will elaborate on subsequently, we do not think that the amenity impacts in this case are so great as to warrant a refusal of the application and are capable of being managed by way of permit conditions.

33 As Mr Wren acknowledged, this not a case about the expansion of an existing use on this site but is rather about the introduction of a new use on the site and in our view, the appropriate means by which the relevant issues can be identified and assessed is through the planning permit process. We think it is significant that the Council's local policy at clause 22.16 quite appropriately recognises the masterplan and planning permit processes are interchangeable. The policy states that;

If an institution elects not to prepare a masterplan, the requirements of this policy equally apply to any planning permit application for buildings and works relating to the institution (where appropriate).

34 Each of the specific requirements of the policy then refers to the information which should be included in and the issues addressed by the masterplan or the planning permit application. We are therefore satisfied that the policy does not impose a barrier to the consideration of the planning permit application prior to the preparation of a masterplan. The policy clearly recognises that there are circumstances where a masterplan maybe appropriate and circumstances where it is not. In the circumstances of this case, we do not think that a masterplan is a necessary or desirable prerequisite to the consideration of the application because issues relevant to determining whether or not a permit ought to be issued are capable of being addressed through the planning permit process.

35 The fact that the school already has two other campuses located in the City of Stonnigton does not change our views about the necessity for a masterplan. While the proposal to establish this third campus, can be seen to be an expansion of the school's existing operations, it is an expansion of part of the school (the senior school) on to a different site quite removed from the existing campuses. The impacts of the expansion are therefore effectively removed from the neighbours of the school's existing campuses and this is quite a different scenario to those considered by the Tribunal in the various cases referred to previously.

36 That being said, a masterplan would be a useful tool in the event that the incorporation of abutting properties was to be contemplated in the future. Such a scenario would clearly be a case envisaged by the local policy and we think it would be sensible for the school and the Council to proceed with the completion and adoption of the existing draft masterplan.

37 Clauses 22.06 and 22.07 are local policies relating to residential character and amenity and discretionary uses in residential zones. These policies require a consideration of the amenity impacts of a proposed use or development, but it is significant that the proposal does achieve substantial compliance with the following policy outcomes of clause 22.07;

* The use is not one which is appropriately located in a commercial zone.

* The site has a frontage to a road in a Road Zone category 1

* The use will cater for a need in a local community.

* The use will be conducted in a building constructed as a dwelling or a heritage building.

* The use and development will maintain the residential and streetscape character of the area.

38 We turn now turn to our assessment of the traffic/car parking and amenity impacts associated with the application.

39 With respect to the traffic/car parking issues, these can be broadly categorised into concerns about pedestrian safety, the adequacy of the student pick up and drop off arrangements, the use of abutting residential streets for drop of and pick up activities, and impacts on the functioning of the surrounding street network. We will address concerns about the use of the use of the rear basket ball court for after hours parking subsequently when we address amenity issues.

40 Dandenong Road is a very busy, arterial road and it is understandable that concerns would be expressed about the safety of students attending a school which has a frontage to Dandenong Road. The principal source of this concern raised in the submissions and the evidence related to the location of tram stops in Dandenog Road and the fact that students may opt to access the site directly from the tram stops rather than by using the traffic signals at Wattletree Road. It was Mr Turnbull's evidence that the use of the Wattletree Road signals represented an indirect route which may discourage some students from using them. Mr Hunt however, provided the following summary of the pedestrian facilities available to tram commuters wishing to access the site;

Pedestrian movements between the proposed campus and these intersection signals are along a concrete path 1.4 m wide. There are effectively four road crossings - Denbigh Road (which has a splitter island that will assist students stage their crossing of this road if required), the Wattletree Road left turn lane (at a signalised crosswalk), Dandenog road city bound lanes (at a signalised crosswalk) and Wattletree Road (at a signalised cross walk). There is adequate room available to store large numbers of pedestrians at these crossing points. The existing infrastructure is therefore adequate to cater for pedestrian movements between the proposed campus and the tram stops at the Dandenong Road/Wattleteee Road intersection.

41 We accept Mr Hunt's evidence with respect to the adequacy of the infrastructure to cater for pedestrian movements and this, combined with the pedestrian management plan proposed to be implemented by the school is sufficient to satisfy us that pedestrian access to the school is not so difficult or dangerous as to make the site unsuitable for the proposed use. It is significant to our conclusions that the proposal is for a senior school and based on the evidence presented during the hearing senior school age children are more than capable of negotiating the traffic conditions present at this site.

42 A considerable amount of time in the hearing was devoted to the consideration of the adequacy of the proposed drop off and pick up arrangements. The proposal involves the provision of a one way loop road with ingress via the existing crossover at the western boundary of 375 Dandenong Road, and egress via the existing crossover at the western boundary of 373 Dandenong Road. It is intended that the loop road will be used to provide access to the staff parking spaces and by parents for the drop off and pick up of students.

43 It was Mr Hunt's evidence that the campus will generate 120 student drop off traffic movements during the morning with these occurring over a period starting before 8.15 am and extending to 10.00 am, but with the majority (98) movements occurring before 8.40 am.

44 With respect to pick up movements, Mr Hunt anticipated 65 movements over a period from 1.05 pm to after 4.30 pm. It is proposed that the drop off and pick up movements will be supervised by a school staff member.

45 In both drop off and pick up movements, the timing of movements will vary from day to day reflecting the staggered start and finish times at the school. As a consequence, the 98 drop off movements occurring before 8.40 anticipated by Mr Hunt, will occur on Tuesday and Thursdays, with the relevant figure on the other days declining to 65 and with more drop off movements spread out through the morning period. Pick up movements on Wednesdays are anticipated to be affected by sporting programs which are conducted on Wednesday afternoons.

46 Having regard to the anticipated volumes, Mr Hunt concluded that, subject to appropriate on site management as proposed by the applicant;

It is considered that ........ on site drop offs and pick ups can be achieved in orderly and efficient manner. Drop offs, while higher in volumes are, in my experience, less intensive with students tending to be dropped off over a longer time frame, often related to parents commitments as well as student start times. The drive through drop off area, with capacity for at least five spaces for longer term drop offs will, in my opinion, comfortably cater for expected traffic levels.

Pick ups at senior schools tend to occur with parents prearranging a pick up time based on student's commitments. The concentration of activity which often occurs at primary school level when parents arrive prior to the end of school and wait for students to depart, is considerably less for senior students. Critically, the number of students who travel home by public transport is high, even if they are dropped off in the morning, reducing the intensity of pick up activity.

47 Mr Turnbull's concerns related to what he regarded as the inadequacy of the single lane loop road to store all vehicles on site at any one time, leading to potential queuing in Dandenong Road "....which is totally unacceptable for a State Highway which carries significant traffic volumes with a travel speed limit posted at 70 km/h....." It was Mr Turnbull's evidence that the use of on street parking on nearby residential streets is a suitable alternative to on site drop off and pick ups, "due to the distance students would need to walk to reach the parked cars, the lack of shelter facilities and the implication for residents' amenity". Mr Edwards formed a view that the proposed drop off and pick up facility was so inadequate that its use would lead to queuing in Dandenong Road and delays on site for parents seeking to leave the site. In Mr Edward's view, parents would avoid using the on site facilities and would choose to use Hampden Road and Denbigh Road for the majority of drop offs and pick ups.

The King David School Holdings Pty Ltd v Stonnington CC [2004] VCAT 239

At a glance

Court

Decision date

Source

Judgment (223 paragraphs)

The King David School Holdings Pty Ltd v Stonnington CC [2004] VCAT 239 (16 February 2004)

Parties

Legislation Cited (2)