[2001] VCAT 2453

The order of the Tribunal is that the decision of the Responsible Authority is varied. A permit is granted for serviced accommodation units , restaurant and convenience shop at Lots 4 to 10 Plan of subdivision 433845C, Basin Boulevard, Loch Sport, generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. P2114/2000 issued by the Responsible Authority on the 22 May 2001 modified by:-

1. Prior to the commencement of construction, 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 must be provided. The plans must be generally in accordance with the application plans referred to in the decision of Victorian Civil and Administrative Tribunal in Application for Review P50309/2001 but modified to show:

s The roundabout and any other works proposed in the adjoining road reserve, including a service road generally in accordance with the plan by Contour Design Aust. P/L, (Drawing TP 02, Alternative Access, dated 04.10.01) but incorporating the following minimum design standards:

s A service road/access lane width of 6.4 metres, measured from the rear of the associated car spaces and the opposite kerb;

s A public footpath with a minimum width of 1.2 metres;

s A landscaping strip with a minimum width of 1.5 metres, and;

s Any other consequent changes to the design and layout of the road reserve, including the provision of a loading bay and on-street car parking;

s Floor, wall and roof levels to Australian Height Datum, with the minimum, floor level of any new building being not less than 2 metres Australian Height Datum.

s The materials colours pavements line marking and signage required for the building and works;

s A public boardwalk adjacent to the marina connected at either end to the adjacent road reserve

s Landscaping both on the site and on the altered road reserve;

2. Prior to the commencement of construction an agreement must be entered into between the landowner and the Responsible Authority under the provisions of Section 173 of the Planning and Environment Act 1987 in relation to the design and construction of works within the road reserve to the satisfaction of the Responsible Authority.

3. The public boardwalk and associated connections to the road reserve must be accessible to the public to the satisfaction of the Responsible Authority.

4. Prior to the commencement of construction the permit holder must have entered into an arrangement for the disposal of wastewater to the satisfaction of the Environment Protection Authority, and thereafter the disposal of wastewater on and from the land must be to the satisfaction of the Environment Protection Authority.

5. The permitted construction must be undertaken in accordance with Environment Protection Authorities Publication No. 275, Construction Techniques for Sedimentation Pollution Control, to the satisfaction of the Responsible Authority and the Environment Protection Authority.

6. This permit will expire if one of the following circumstances applies:

* The development and use is/are not started within two years of the date of this permit.

* The development is not completed within two years of the date of this permit to the satisfaction of the Responsible Authority.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

7. Prior to the commencement of construction the applicant must consolidate Lots 4-10 Plan of Subdivision 433845C, Basin Boulevard, Loch Sport.

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

a) Transport of materials, goods or commodities to or from the land.

b) Appearance of any buildings, works or materials.

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

9. Before the use and/or development 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.

c) Surfaced with an all-weather bituminous, concrete or paved pavement to the satisfaction of the responsible authority.

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.

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

10. No fewer than 34 car spaces must be provided on the land.

11. Outdoor lighting of the car park must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.

12. The maximum height of fencing on Basin Boulevard street frontage must not exceed 1.2 metres.

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 Kojo Adjei, Town Planner, appeared on behalf of the Responsible Authority.

Mr David Crowther, Town Planner, appeared on behalf of the Applicants for Review.

Mr Gary Kay appeared on behalf of the Environment Protection Authority.

Mr Christopher Townshend, Barrister, appeared on behalf of the Respondent/Permit Applicant. Mr Townsend called Mr Tim Biles, Town Planner, and Mr Henry O'Brien, Traffic Engineer, as witnesses in support of his submissions.

1. This is an application to review the decision of the Responsible Authority to grant a permit for a tourist related use and development comprising serviced accommodation units, restaurant and convenience shop on land forming part of a relatively recent marina development in Basin Boulevard at Loch Sport. The parties, and the witnesses at the hearing of the application for review made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

2. At the commencement of the hearing Mr Townshend applied to amend the permit application by the substitution of amending plans as foreshadowed in a letter from Clarke Hopkins & Clarke Architects dated 19 September 2001. No one objected to the amendment of the permit application in this way, and the Tribunal ordered the amendment requested. Mr Townshend also foreshadowed a further amendment to the traffic access arrangements, in which traffic access is obtained via a proposed service road, rather than from a series of crossings. The Responsible Authority prefers the service road proposal, the permit applicant was content for the Tribunal to form its own opinion about the preferable outcome.

3. The following extract from Mr Crowthers' submission describes the site and its locality:

"The subject site is generally regular in shape and comprises 7 allotments described as lots 4-10 on Plan of Subdivision 433845C.

The site has a frontage to the Loch Sport Marina (part of Lake Victoria) to the north of 68 metres; a frontage to Basin Boulevard to the south of 95 metres, and a frontage to Marina Drive to the east of 53.95 metres. The site has a splay of 4.24 metres in its south-east corner (adjacent to the intersection of Marina Drive and Basin Boulevard) and a western boundary depth of 22.5 metres. The site has an overall area of approximately 2085.7m2.

The site is generally flat and comprises vacant land that is devoid of significant vegetation. The site enjoys extensive and uninterrupted views of the marina and Lake Victoria.

At present the site is not serviced by any formal vehicle crossovers to either Basin Boulevard or Marina Drive, although the road kerbing along Basin Boulevard is indented in two locations signifying potential vehicle crossings.

Basin Boulevard and Marina Drive are narrow local roads that are approximately 6 metres in width.

Surrounding properties may be described as follows:

q North: The existing marina and then one and two storey detached dwellings beyond.

q East: Marina Drive and then one and two storey detached dwellings beyond.

q South: Basin Boulevard and then one and two storey detached dwellings beyond.

q West: A boat yard and the Marina Hotel with associated car parking and landscaping.

Our client's property (Lot 590 Marina Drive, Loch Sport) is located on the south-west corner of Basin Boulevard and Marina Drive, and is directly opposite the subject site. It is occupied by a combination brick and weatherboard (hardi-plank) raised single storey dwelling with the garage below the dwelling floor level. Vehicle access to this property is via Marina Drive in close proximity to the intersection of Basin Boulevard and Marina Drive. The site has vegetation surrounding its frontage to Marina Drive.

Loch Sport is a developing coastal settlement. It is a popular tourist destination that is generally characterized by one and two storey detached holiday-style dwellings in garden and natural bush settings."

4. The following extract from Mr Biles' submission briefly describes the proposal:

"It is proposed to construct and use a building for serviced accommodation units, restaurant and convenience shop at No. 4-10 Basin Boulevard, Loch Sport.

The proposal comprises 22 serviced accommodation units, which includes 12 one bedroom units, 8 two bedroom units and 2 three bedroom units over two levels. 22 car spaces and 2 berths are allocated to the service accommodation units.

A manager's residence is incorporated into the proposal and is located to the eastern end of the development in association with the serviced accommodation office and convenience store. One car space is allocated to the manager's residence.

Five car spaces are allocated to the convenience store.

A restaurant with 42 seats is included into the proposal at the western end of the development, with an outlook to the Marina. Five car spaces and four berths are allocated to the restaurant.

Overall the development provides 34 on-site car parks, two on the street, and six boat berths."

5. The permit application was made by Clarke Hopkins & Clarke, Architects who were acting on behalf of Kureck Investments Pty Ltd and Craig and Lynne Charles. Kureck Investments Pty Ltd and Craig and Lynne Charles in application for review P51031/2001, applied for a declaration under s. 149B of the Planning and Environment Act 1987. The application sought declarations in respect of the proper interpretation of s. 177, and s. 184(3) & (4) of the Planning and Environment Act 1987. The application for declaration came up for hearing on Thursday 27 September 2001, and was adjourned on the basis that the application for declaration was misconceived, and that the matters raised by the declaration application could be dealt with at the commencement of the hearing of the merits review, that is the current application for review.

6. The subject land is made up of 7 residential lots which form part of the original subdivision which surrounded the marina development. There exists a section 173 agreement, which governs the development of these lots, and includes certain setback requirements which foreshadowed the residential development of the land, and which are not satisfied by the current tourist oriented development. The application for declaration, and proposed condition 2, seek to address both the practical effect of the section 173 agreement and the jurisdictional issue associated with the existence of the agreement. The jurisdictional issue relates to the power to grant a permit which may lead to the breach of a restriction.

7. At the commencement of the hearing Mr Townshend no longer sought to pursue the matters raised in the declaration application. However, notwithstanding the fact that no other party raised any issue as to the jurisdiction of the Tribunal to consider the permit application, in our mind the issue had been brought to the attention of the Tribunal because of the application for declaration, and therefore the Tribunal needed to be satisfied as to its jurisdictional position. Mr Townshend was therefore asked to make submissions on the issue. Ms Rickards is the member of the Tribunal who is a legal practitioner, and as this jurisdiction is a question of law, the decision of the Tribunal in respect of this issue is the decision of Ms Rickards.

8. An agreement pursuant to section 173 Planning and Environment Act 1987 is registered on the titles to the relevant lots in the proposed development. Matters relating to section 173 agreements are dealt with under the Act in sections 173 - 184. A section 173 agreement binds the owner to the covenants specified in the agreement. An agreement may be registered on the title to the land it relates to. After registration the burden of any covenant in the agreement runs with the land affected. A Responsible Authority may enforce the covenant against any person deriving title as if it were a restrictive covenant.

9. New provisions have recently been incorporated into the Act with regard to how a Responsible Authority deals with applications for permit when a restrictive covenant applies to the property.

(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant

10. Mr Townshend submitted that a section 173 agreement although so referred to within the Act as being treated as if it were a restrictive covenant did not fall within the definition of "registered restrictive covenant" in the PE Act and the referral in section 61(4) PE Act.

11. "Registered restrictive covenant" is defined in section 3 PE Act to mean "a restriction within the meaning of the Subdivision Act 1988". Under the Subdivision Act "restriction" is defined as "a restrictive covenant or a restriction which can be registered or recorded in the Register under the Transfer of Land Act 1958".

12. Mr Townshend submitted that where as there is a reference under the Transfer of Land Act 1958 to the registration of a restrictive covenant by the Registrar of Titles, the requirement to register a section 173 agreement is derived under the Planning and Environment Act and not under the Transfer of Land Act. There is a reference under the Transfer of Land Act to the registration of an instrument but it is said this does not refer to a section 173 agreement. Under section 181(3) PE Act "the Registrar of Titles must make a recording of the agreement in the Register".

13. Under section 177(2) PE Act "an agreement may be ended wholly or in part or as to any part of the land by the responsible authority with the approval of the Minister or by agreement between the responsible authority and all persons who are bound by any covenant in the agreement". Mr Townshend submitted that the parties to the agreement which related to the relevant land had agreed to end the agreement. A copy of the agreement was provided to the Tribunal.

14. Unlike restrictive covenants which can only be enforced by a person who owns land benefiting from the covenant, the covenants in a section 173 agreement can be enforced by the Responsible Authority pursuant to the statutory provision of section 182(b) PE Act as if it were a restrictive covenant even though the Responsible Authority is not the owner of land benefiting from the covenant.

15. The only relevant persons who can end the agreement is the owner of the lots on which the agreement is registered and the Responsible Authority. Such an agreement has been entered into, the section 173 agreement is therefore not a bar to the consideration of the application in relation to the subject land.

16. Turning now to the merits of the application for review, Mr Crowther set out his argument as follows:

"In summary, it is our opinion that the proposed development is inappropriate because it:

1. Is contrary to the relevant planning controls for the area.

2. Is not 'site responsive' and will detract from the character and amenity of the area.

3. Makes inadequate provision for parking and traffic.

17. It was argued that the proposal was contrary to the relevant planning controls on the basis that it was inconsistent with the primary purpose of the business zone, it would prejudice the development of the land in accordance with the MSS, in particular by stifling the creation of a town centre, and because it would result in a limitation of public access to the marina prejudicing the development of a commercial and community focus to the township.

18. Mr Biles on the other hand argued that a tourist based development incorporating a restaurant and a convenience store, and focused on a purpose built marina, was a popular and successful form of commercial development within the Gippsland Lakes region generally, and it was in his view an appropriate form of development having regard to the location of the land abutting the marina, and its business zoning. We agree with Mr Biles' submission. It is not at all clear to us that this land and the surrounding development was ever intended to be a town centre from a strategic planning perspective. The hotel, the marina, and this proposed development will create a commercial synergy which is appropriate to this location. Moreover, the Responsible Authority has insisted upon a public board walk between the development and the marina, which ensures a degree of public pedestrian access to the marina, which we believe can be protected by appropriate permit conditions.

19. In all this it must be recognized that notwithstanding the zoning, the land has been subdivided for residential use and if developed as presently intended, there would be no access to the marina for the public generally.

20. It was argued that the height and scale of the buildings, lack of landscaping, the dominance of the proposed provision for car parking, are all indicators of the fact that the design is not site responsive, and does not complement the existing township character.

21. The proposal is for a commercial development in a Business Zone, it is therefore unsurprising that the scale and character of the development, is different to the relatively low key residential development which is the dominant characteristic of the township generally. The scale and form of the development is not unreasonable having regard to the zoning of the land. This is not to say, that we do not consider urban design and landscaping issues to be unimportant, we will turn to these issue in more detail in our discussion of car parking and traffic later in this decision.

22. Again it is instructive to consider the existing approved development. The residential lots which form part of the marina development, abutting the eastern side of the marina have already been developed for residential purposes. The intensity and character of this development is quite different to the more low key character of the township generally. Moreover, the design standards are quite variable, and the opportunity for a consistent design response provided by this proposal is likely to lead to a better outcome from an urban design perspective.

23. It was argued that the number of car spaces provided is inadequate, no trailer car parking is provided and should be provided, and there is an excessive reliance on the public road reserve for the provision of satisfactory access to the site.

24. In relation to the issue of car parking demand, we agree that there is some uncertainty as to the likely peak demand that will be experienced at the height of the holiday season. In this regard we think Mr O'Brien's analysis was fair, and accept that at the peak period, it is likely that the proposed car parking provision will be sufficient for the proposed use. At all other times of the year it is likely that there will be ample car parking.

25. The proposed buildings extend to the boundary of the site with Basin Boulevard. All access to the on-site car spaces except those in the small common car park, is via the road reserve provided by a series of crossings, or alternatively via a service road. While it is true that the development relies on the public road reserve to a marked degree, this is not unusual in the context of a Business zone. Relying on "undercroft" car spaces as proposed is potentially a visually intrusive element. In our view "undercroft" car spaces is a design element which is only acceptable if the service road solution is adopted. In the service road solution there needs to be sufficient space in the proposed landscape strip, to support the planting of trees, to breakdown the visual impact of the car parking arrangement. Moreover, the proposed footpath in the service road option is a better solution for pedestrians, than is a footpath intersected by a number of crossings and along which there are considerable opportunities for conflict with reversing motor vehicles.

26. It follows from the above discussion that we propose to require that a service road option be developed, subject to minimum standards including a 6.4 metre wide access road to the rear of the car spaces, and a 1.2 metre wide footpath, and a 1.5 metre wide landscaped strip. The way in which the design is resolved to achieve these minimum standards would be a matter to be negotiated between the permit applicant and the Responsible Authority.

27. The scale of the building and its extensive site coverage, and the heavy reliance on the road reserve for access purposes, were all said to be indicators of an overdevelopment of the site. In the discussion above we have indicated why we think that the scale of the building is generally acceptable, and why we believe that it is not unreasonable for the public road to be used for access purposes in the context of the zoning of the land. Therefore, it is not considered that these are factors which lead to the conclusion that the proposal is an overdevelopment of the land.

28. At the conclusion of Mr Crowther's submissions he raised a number of other matters upon which we comment as follows:

* In relation to effluent disposal, the development intends to rely on the system developed for the hotel and the marina. There may be a need for some expansion of the irrigation system used for the ultimate disposal of the treated effluent, but we accept the EPA's assessment that a satisfactory solution can be found.

* We are of the view that this relatively small tourist based development is a use and development consistent with local planning and economic policies.

* We do not accept that a small restaurant located as proposed is likely to have any undue amenity effects on nearby residential properties. The proposed development will affect views from nearby residential properties, but these are views that can only be reasonably expected to be retained while the land is vacant. Even if developed in accordance with the existing residential subdivision, most opportunities for a view across the site other than views across the top of two storey buildings, would have been lost.

* The question has resolved internal amenity provided in each of the dwellings is to a degree justified. However the identified defects are not sufficient to warrant refusal of a proposal which is primarily tourist based accommodation.

* The permit conditions will be reviewed by the Tribunal.

29. It follows from the above reasons, that it is the Tribunal's conclusion that this small tourist based development is an appropriate development of this land in this zone.