Victorian Civil and Administrative Tribunal|2008-06-30

VMR Property Investments Pty Ltd v Moonee Valley CC [2008] VCAT 1265 (30 June 2008)

Moonee Valley Planning Scheme; Application pursuant to Section 82 the Planning and Environment Act 1987; Business 2 Zone; Nine storey apartment building; 73 dwellings; 109 off street car spaces; Use; Parking; Traffic.

VMR Property Investments Pty Ltd (permit applicant)

The decision of the Responsible Authority is varied.
In permit application MV/18744/2007 a permit is granted and directed to be issued for the land at 44-68 Racecourse Road, North Melbourne. The permit will allow:
- Use and develop the land for the purpose of a 9 storey building (with a semi-basement) comprising 73 dwellings, a reduction in the car parking requirements, and alterations to access in a Road Zone Category 1

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Ms Tania Cincotta, Solicitor of Best Hooper Solicitors. She called written and oral evidence from Ms Charmaine Dunstan, Traffic Engineer of Traffix Group Pty Ltd.

Construction of a nine storey building containing 73 apartments over basement parking for 109 cars. It includes a reduction in on-site parking and alteration of access to a road in a Road Zone Category 1.

(Third party rights only attach to use, car parking and traffic issues).

Although quite familiar with the intersection, I inspected the site and locality prior to making my determination.

The site is located on the north western corner of Racecourse and Boundary Roads. A tram route passes outside the site along Racecourse Road and another tram route is located along Flemington Road. The Flemington Bridge railway station is located within 100 metres of the site. It has an area of 1,243 square metres and is rectangular in shape with the smallest abuttal to Boundary Road. The site has an approximate 6 metres fall from Boundary Road to the west and an approximate 1.6 metres fall towards the north. The site is currently developed for a two storey brick building used for automotive repairs, with parking for 15 vehicles provided within a paved setback area to Boundary Road.

The neighbouring area is developed for a mix of commercial, industrial and residential uses. Two major 6 and 8 storey buildings are under construction to the west and north. A funeral parlour is located further north in Boundary Road. On the opposite side of Boundary Road are a car wash and some residential properties. Residential properties also face Flemington Road south east of Boundary Road - including Mr Brygel's residence at No 447. The southern side of Racecourse Road comprises a mix of commercial type uses including a 7-11 store, brothel and offices.

At the commencement of the hearing Mr Brygel asked for an adjournment on the basis that he had not had time to prepare properly for the hearing. I declined to agree to an adjournment.
On 13 June 2008, Deputy President Gibson heard an application by the permit applicant to strike out the application for review by Mr Brygel. Mrs Gibson declined to strike out the application for review but in her order made various directions including one that Mr Brygel was to prepare a written submission and file and serve a copy no later than 4.00 pm on 24 June 2008.
In responding to Mr Brygel's request for an adjournment I made reference to Section 78 of the Victorian Civil and Administrative Tribunal Act 1998 and in particular Sections 78 (1) (a) and (c) which concern failing to comply with an order or direction of the Tribunal and asking for an adjournment as a result of that failure. I indicated that under Section 78 (2) I could order that the proceeding be dismissed or struck out, but that instead for reasons of fairness and equity I would prefer for the hearing to proceed so that I could hear and consider submissions from Mr Brygel.

Although this is an issue subject to third party review by Mr Brygel, the residential use of the site was not in dispute. Indeed in answer to a specific question from me, Mr Brygel stated that 'cannot knock back residential - people need places to live'. I agree and accept and support the residential use of this land.

Despite being a residential development, the building exceeds three storeys and hence ResCode parking objectives and standards are not applicable. In relation to car parking it means that Clause 52.06 applies which has a higher residential parking rate than the equivalent ResCode standard. The result is a requirement for 146 spaces. In addition there is a requirement to provide 26 spaces for the adjoining office development for a total of 172 spaces. 109 spaces are being provided which includes the 26 for the office development - consequently 83 are available for the dwellings on the review site.
Even though the parking requirements set out in Clause 52.06 can be varied, there is no logical reason for applying different parking rates for dwellings just because the number of stories exceeds three storeys. As is commonly the case across Melbourne, the parking standards of ResCode are normally applied to all residential developments no matter the number of storeys. As indicated at the hearing I would not adopt the Clause 52.06 rate as the starting point for considering a reduction in the parking rate but would instead adopt the ResCode standard of 1 car space per 1 or 2 bedroom dwelling, 2 car spaces per 3 or more bedroom dwellings and 1 visitor space per 5 dwellings. Adopting those rates results in a requirement for 88 spaces (73 for the dwellings and 15 visitor spaces). There is therefore a shortfall of 5 on-site spaces, although I agree with Ms Dunstan that because of the provision of 10 tandem spaces, for practical operational reasons each pair would need to be allocated to the same dwelling with the result that 5 of the larger 2 bedroom dwellings will be provided with a second car space which is one more than the ResCode requirement for 2 bedroom dwellings. Indirectly and fortuitously that addresses one of Mr Brygel's concerns that the ResCode rate does not reflect the reality that larger dwellings can have higher car ownership rates than the rate set out in ResCode. For example a two bedroom dwelling maybe occupied by two people each owning car. The allocation suggested by Ms Dunstan does mean however that there is a mismatch for other dwellings and for visitor parking. Ms Dunstan has suggested that the allocation be adjusted by reducing the number of visitor spaces from 15 to 10 and reducing the number of spaces for the 8 studio apartments by 5 to 3 in total. To support her suggested allocation to the studio apartments she cited recent 2006 census data which suggests that car ownership for bed-sits and 1 bedroom flats/units/apartments is somewhere between 0.1 and 0.5 cars per dwelling in Postcode 3051 and 0.2 to 0.7 cars per dwelling in the City of Moonee Valley. Adopting the higher rate would require 4 or 5 spaces for the 8 studio apartments, but I accept and have in other cases commented, that people moving into apartments in a complex such as this are forewarned as to whether on-site parking is available. They can and do make purchase/rental decisions on the basis of such information.
While I accept Mr Brygel's submission as to the level of parking congestion in the immediate area, the irony is that the proposed development, together with those on the adjoining sites, provides a far higher degree of compliance with car parking requirements than do the existing dwellings and businesses in the area. For example the older dwellings along Flemington and Boundary Roads do not appear to provide off street parking at current day rates. While I am not for a moment suggesting that these pre-existing dwellings should be retrofitted with on site parking, the fact remains that these existing dwellings have more on-street parking demands than will these new dwellings. In percentage terms, a 5 space waiver in a development providing 83 resident spaces is just 6% (or 12% if 10 spaces are waived). Compared to up to 100% waivers granted in parts of North Melbourne and other inner city areas, this represents an insignificant reduction in the number of on-site spaces.
Mr Brygel is also very concerned about traffic access to and from Boundary Road and to Racecourse Road. Both roads are within a Road Zone Category 1 and are under the control of VicRoads. Although he argued that VicRoads had 'got it wrong' and that vehicles turning into Boundary Lane from Boundary Road in particular would represent an unacceptable traffic hazard and should not be accepted, I reject this argument. VicRoads is a referral authority under the Planning and Environment Act 1987 and has statutory responsibilities under the Road Management Act 2004 and the Road Safety Act 1986 and I find it inconceivable that VicRoads would not have properly and professionally assessed the road safety and traffic flow implications of vehicles, turning to and from Boundary Road. Ms Dunstan's evidence statement included a diagram of the Boundary and Racecourse Roads intersection showing a revised slip way configuration which had been signed off by VicRoads. The plan relates to previously approved and now under construction development to the west and north of the review site but as explained by Ms Dunstan, the intersection works also have benefits for traffic accessing the review site, since the new access at Boundary Lane is to be used by both the development at 185-187 Boundary Road and the development on the review site. I note that Mr Brygel did not call expert traffic evidence to support his assertions or to prove that VicRoads had erred in conditionally supporting the development.
I fully understand Mr Brygel's concerns about traffic and parking congestion and such opinions are commonly raised in Tribunal hearings by residents living in the inner parts of the metropolitan area. It may be very obvious, but it is worth noting that ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. I also consider that the proximity to excellent public transport services (train station and tram routes within a few minutes walk or outside the site) and commercial centres within easily tram or walking distance will encourage residents to leave their cars at home, thereby reducing traffic movements even further than would be expected if the site was more remote from such facilities. Rejecting new development on sites such as the one on the review site because of a relatively slight shortfall in on-site car parking or potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located so close to public transport and in areas where people can readily access jobs, education institutions and other facilities, may eventually encourage a slowdown in the growth of traffic volumes. I accept that it may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve. It is also an outcome that has recently gained added impetus because of the higher cost of fuel and the adverse environmental impacts of utilising motor vehicles to the extent that we have become accustomed to.
In assessing the permit conditions contained in the Notice of Decision, I have made a number of changes to reflect submissions and discussion about them at the hearing. In particular I have deleted Condition 5 as the width of Boundary Lane has already been dealt with under approvals for neighbouring developments. I have deleted Conditions 12 and 17 as crossovers are dealt with in Condition 13 (now Condition 11). For the same reason I have deleted the VicRoads Condition 26. I have included a new condition 1(b) requiring 83 of the spaces to be allocated to the dwellings and associated visitor parking and 26 spaces to the offices at 70-82 Racecourse Road. Although Ms Cincotta suggested allocating the tandem spaces to the larger 2 bedroom dwellings, I consider it preferable to retain flexibility in how these spaces are allocated as the needs of residents may change over time. I have deleted the 'footnotes' as these are not permit conditions and can be instead included as an attachment or covering letter to the permit.

Having regard to the above, I will vary Council's decision and direct the issue of a permit with amended conditions.

Before the use and development starts, or any trees or vegetation removed, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:
1. A sample board indicating colours and materials to be applied to the exterior of the building.
2. 83 of the spaces are to be allocated for the dwellings and associated visitor parking and 26 spaces to the offices at 70-82 Racecourse Road.

Once approved these plans become the endorsed plans of this permit.

Prior to the completion of the development all boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.
Prior to the commencement of any building and works a Construction Management Plan must be submitted to and must be approved by the Responsible Authority detailing the construction activity proposed. The plan must include, but not be limited to:

Parking and traffic movement of all workers vehicles and construction vehicles

Works timetable 2. Any impacts upon adjacent roads and pedestrian walkways and providing for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase 3. Access routes for construction vehicles 4. Proposed parking locations for construction vehicles and construction workers vehicles 5. Temporary fencing works 6. Number of workers expected to work on the site at any time 7. Methods for limiting escape of dust and lifter from the site.

Once submitted and approved the works detailed by the plan must be carried out to the satisfaction of the Responsible Authority.

Prior to the commencement of the development, a comprehensive waste management plan must be submitted and approved to the satisfaction of the Responsible Authority showing and detailing:

That the bin storage areas are sufficient to cater for the amount of waste that will be produced 2. The number and type of bins that will be used on the site

Where these bins will be stored including details of screening and ventilation

Who will be responsible for taking bins in and out for collection, and where this will occur 2. Method of collection 3. How recycling materials will be dealt with and collected 4. Hours of bin collection 5. Access routes for private waste collection vehicles that do not rely on reversing movements, if private waste collection is utilised.

Once submitted and approved the works detailed by the plan must be carried out to the satisfaction of the Responsible Authority.

The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
Service units, including air conditioning units, must not be located on any of the balconies unless appropriately visually and acoustically screened to the satisfaction of the Responsible Authority.
Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority. The Plan must be prepared by a suitably qualified professional and must encourage the use of non-private vehicle transport modes by the occupiers of the development. The Plan must include, but not be limited to the following:

A description of the location in the context of alternative modes of transport and objectives for the Green Travel Plan; 2. Outline Green Travel Plan measures for the development including, but not limited to: 1. Household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment; 2. Bicycle parking and facilities available on the land; 3. Monitoring and review; and 4. A plan showing: * The bicycle parking areas to be provided in the basement of the building for use by residents and commercial occupiers of the building; * Accessible pedestrian links to the train-station, bike paths and tram stops, in particular from Racecourse Road to Flemington Bridge Station; and

The Green Travel Plan must not be amended without the written consent of the Responsible Authority.
Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents / owners to the satisfaction of the Responsible Authority.
All internal fences or internal screen walls marked on the endorsed plan must be maintained to the satisfaction of the Responsible Authority.
Parking areas, loading bays and access lanes must be kept available for these purposes at all times.
Standard concrete vehicular crossing/s must be constructed to suit the proposed driveway/s in accordance with the responsible Authority's standard specification and any vehicle crossing/s no longer required must be removed and the land, footpath and kerb and channel replaced at the cost of the developer and all to the satisfaction of the Responsible Authority.
The car parking area must be lit to the satisfaction of the Responsible Authority, if in use during hours of darkness and all lights must be designed, fitted suitable baffles and located to prevent any adverse effect on adjoining land.
Provision must be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.
All wastes must be disposed of to the satisfaction of the Responsible Authority and no liquid waste or polluted waters must be discharged into a sewer or storm water drainage system.
The maximum change in grade for accessways should not exceed 12.5% (1 in 8) as per AS/NZ 2890.1:2004.

The permit holder must take all reasonable steps to ensure that disruption to tram operation along Racecourse Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport fourteen days (14) prior, and must be to the satisfaction of the Director of Public Transport.
The permit holder must ensure that all tram overhead and supporting infrastructure is not damaged or does cause disruption to tram operations. Any damage to public transport infrastructure must be replaced at the full cost to the permit holder.
The permit holder must ensure that disruption to bus operation within Racecourse Road is kept to a minimum during the construction of the development. This includes the retention of bus lanes and access at all times. Foreseen disruptions to bus operations during construction and mitigation measures must be communicated to the Director of Public Transport and bus operators fourteen days (14) prior, and must be to the satisfaction of the Director of Public Transport.
No more than 109 car parking spaces are to be provided on site without the prior consent of the Director of Public Transport.

The gradient of the exit ramp must comply with Australian Standards 2890.1 3.3 2004.
Vehicular movements off and onto Racecourse Road must be made in a forward direction.
To the satisfaction and at no cost to both VicRoads and the Responsible Authority the proposed crossover to Racecourse Road must be constructed as per the submitted drawing number ATP 201 dated October 2007, flared 60 degrees with 3 metre radial turnouts and 1.0 metre clearance from any fixed object.
The developer is required to ensure that the external traffic noise levels within the site, following the occupation of the development and for a ten year period after that date, do not exceed 63dbA L10 (18 hour).
At no cost to VicRoads and the Responsible Authority, the developer will be responsible for the relocation of any road furniture and other services that may be required in this work.
All works within the declared road must be performed at no cost to VicRoads.
Worksite traffic management practices for all work undertaken within the Racecourse Road reserve adjacent to the subject property must be in accordance with VicRoads "Worksite Traffic Management (Roadworks Signing) Code of Practice" which includes Australian Standard AS 1742.3 2002 "Manual of Uniform Traffic Control Devices Part 3:Trafflc Control devices for Works on Roads".
A traffic management plan is to be submitted to VicRoads at least 14 days prior to any work on site.
This permit will expire if one of the following circumstances applies:
1. The development is not commenced within two years from the date of issue of this permit; or
2. The development is not completed and the use is not commenced within four (4) years from the date of this permit.

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.

Environment Act 1987

VMR Property Investments Pty Ltd v Moonee Valley CC [2008] VCAT 1265

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

VMR Property Investments Pty Ltd v Moonee Valley CC [2008] VCAT 1265 (30 June 2008)

Parties

Legislation Cited (1)