Victorian Civil and Administrative Tribunal|2003-10-02

Western Gateway Centre Pty Ltd v Maribyrnong CC [2003] VCAT 1382 (2 October 2003)

The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for land at 381 Williamstown Rd Yarraville. The permit will allow the use and development of the land for the purposes of, restricted retail premises, trade supplies, service industry, convenience restaurant, together with removal of an easement, alterations to existing vehicle crossings and construction of a new vehicle crossing, erection of an internally illuminated pole sign, erection of a flood lit sky sign and a reduction in the provision of car parking, generally in accordance with the endorsed plans.

The Tribunal directs that the permit must contain the following conditions:

1. Before the use and 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 four copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) A landscaping plan drawn by a qualified Landscape Architect. The plan must show the following:

(i) a survey of all existing vegetation and natural features;

(iii) a schedule of all proposed trees, shrubs and ground cover, which will include the location and size of maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(iv) paving details and finishes to driveways, internal pedestrian pathways and courtyard areas must be specified on the plan;

(v) retaining walls, fence design details including heights and other landscape works including areas of cut and fill;

(vi) the landscape plan should clearly delineate between those areas used for outdoor recreation activities and those areas used to accommodate site and service facilities including clotheslines, storage facilities, garbage and recycling facilities, location of hoses and taps.

Landscaping in accordance with such approved plan and schedule shall be completed before the commencement of occupation of the building hereby permitted.

An endorsed copy of the landscape plan will form part of the permit.

(b) Deletion of signage associated with the convenience restaurant.

(c) Deletion and reinstatement of the kerb and channel to the southern most crossover of Williamstown Road servicing the convenience restaurant drive through.

(d) A schedule of all external materials and finishes shall be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule shall show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fencing and paving (including car-park surfacing), outbuildings and structures.

(e) An approved system of public lighting shall be provided to the communal pathways and driveways of the development, and shall operate between dusk and dawn.

(f) Where not shown on the submitted plans site facilities including the following are required to be detailed on the plan:

(i) garbage and recycling bin enclosures (style and external finishes proposed).

2. The layout of the site as shown on the endorsed plan must not be altered or modified (whether or not in order to comply with any statute, statutory rule or by-law or for any other reason) without the consent of the Responsible Authority.

3. New buildings or works must not be erected or constructed and existing buildings must not be enlarged, rebuilt or extended except with the written consent of the Responsible Authority.

4. The use and/or development permitted by this permit must not be commenced or occupied until:

(a) The parking area(s) shown on the endorsed plan(s) have been constructed to the requirements of the Responsible Authority.

(b) The garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements of the Responsible Authority.

5. The use hereby permitted shall at all times be conducted in a manner which ensures that the residential amenity of nearby residential properties is not unreasonably affected.

6. The Applicants shall display a sign at the exit from the premises advising patrons to respect the amenity of adjacent residential areas and leave in a quiet and orderly manner.

7. The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 8.00 am to 6.00 pm Mondays to Fridays.

8. All external surfaces of any buildings coloured to the satisfaction of the Responsible Authority and the exterior colour of all buildings must not result in any adverse visual impact on the amenity of the surrounding area.

9. Adequate facilities are required to be provided on the land for the disposal of all refuse and waste materials. The facilities must be satisfactory to the Responsible Authority.

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;

10. The installation, maintenance and/or use of any intruder alarm system shall at all times conform with E.P.A. Audible Intruder Alarm Regulations 1978.

11. Exterior lighting shall be provided with suitable baffles and/or located so as to minimise the emission of light outside the site, to the satisfaction of the Responsible Authority.

12. 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.

13. Associated mechanical plant or equipment (air conditioning etc) shall not cause detriment to or prejudicially affect adjoining properties by reason of the emission of noise or smoke and shall conform to standards contained in the appropriate State Environment Protection Policies, to the satisfaction of the Responsible Authority.

14. All loading and unloading for the Office Works tenancy in the north east corner of the site shall be limited to between 8.00 am and 6.30 pm Mondays to Fridays and 8.00 am and 6.00 pm Saturdays. No loading and unloading may occur on Sundays and Public Holidays.

15. The Applicant/Owner shall be responsible to meet the costs of all alterations to and reinstatement of, the City of Maribyrnong and any other Public Authority assets deemed necessary and required by such Authorities for the development. The Applicant/Owner shall be responsible to obtain the prior specific written approval of the City of Maribyrnong or other relevant Authority for such alterations and reinstatement's and shall comply with conditions required by the said Authority in relation to the execution of such works.

16. The area set aside for the parking of vehicles, and so delineated on the endorsed plan, shall be made available for such use and shall not be used for any other purpose. At all times in conformity with the plan, there shall be clearly indicated on the ground the boundaries of all such car spaces and access lanes, the directions in which vehicles should proceed along the access lanes.

17. The driveway(s) serving the car park shall be left open at all times during business hours and shall not be used for any other purpose other than providing vehicular access between the street and the parking spaces and other site areas.

18. All vehicle crossings shall be located, designed and constructed to the satisfaction of the Assets and Open Space Branch.

19. A masonry kerb (of minimum height of 150mm) shall be erected along the boundary of the landscape areas and the car park and driveway.

20. All paths shown on the endorsed plan shall be constructed and maintained to the satisfaction of the Responsible Authority.

21. The loading and unloading of vehicles and the delivery of goods to and from the premises shall at all times be carried on entirely within the site and be so conducted as to cause minimum interference with other vehicular traffic.

22. Concrete kerbs or other barriers must be provided to the satisfaction of the Responsible Authority to prevent direct vehicle access to an adjoining road other than by a vehicle crossing.

23. A sign(s) to the satisfaction of the Responsible Authority must be provided directing drivers to the area set aside for car parking and must be located and maintained to the satisfaction of the Responsible Authority. The sign must not exceed 0.3 square metres.

24. Any existing vehicular crossing made redundant by the building and works hereby permitted shall be broken out and re-instated as standard footpath and kerb and channel to the approval and to the satisfaction of the Assets and Open Space Branch and at the permit holders cost.

25. The car spaces for the use hereby approved shall be made available for customers and staff of the proposed use during normal or specified hours of operation and the general public at all other times. The car parking shall not be restricted in any way and no charges or fees may be imposed, fixed or collected for the use of any of the spaces, except the charges (if any) and fees (if any) from time to time approved in writing by the Responsible Authority.

26. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall:

1. be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;

2. thereafter be maintained to the satisfaction of the Responsible Authority;

3. be made available for such use at all times and not used for any other purpose;

4. be properly formed to such levels that it can be used in accordance with the endorsed plan;

5. be drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority;

6. have the boundaries of all vehicle spaces clearly indicated on the ground in conformity with the endorsed plan.

27. Before the use allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

28. The garden areas shall be landscaped with trees, shrubs and groundcovers, and shall not be used for any other purpose. The landscaping shall be established and maintained in a proper and tidy condition, to the satisfaction of the Responsible Authority, with any dead or diseased trees or shrubs being replaced as soon as possible.

29. The location and details of the signs, as shown on the endorsed plan, shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-law or for any other reason) without the consent of the Responsible Authority.

30. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

31. Prior to commencement of works, separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council has considered that it is not feasible to connect to the local drainage system.

32. At least 21 days prior to the construction a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.

33. Any compressor used on the subject land shall be contained within an isolating booth to the satisfaction of the Responsible Authority.

34. The buildings shall be provided with suitable drains of an impervious type which shall be laid to a self-cleansing gradient with suitable provisions for silt traps where necessary, and all drains shall be maintained in good order and condition and shall discharge to an approved outlet.

35. The discharge of water from the property 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 an approved outlet in a street to an underground pipe drain.

36. The Applicant is required to meet the full costs of any drainage works necessary to provide an adequate lawful point(s) of discharge to the satisfaction of the Responsible Authority. At the discretion of the Responsible Authority these works may include the extension, enlargement, alteration of undergrounding of drains to the site and the removal of existing outlets.

37. Stormwater run-off from the site must not cause any adverse impact to the public, any adjoining site or Council asset. Prior to development of the site a stormwater discharge permit is required from the Manager of Assets and Open Space or his representative. A fee is payable upon application for this permit:-

38. The land must be drained to the satisfaction of the Responsible Authority.

39. This permit will expire if only one of the following circumstances applies:-

- the development and use are not started within two years of the date of this permit;

- the development is not completed within four years of 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.

Mr Peter Small, consultant Town Planner of Urbis Town Planning, and

Mr Greg Tucker, Traffic Consultant of Greg Tucker and Associates

Mr Ron Silva appeared on his own and on his wife's behalf, Mr Don Pollack appeared on behalf of Comcater (Parsons Brinkerhoff)

Mr Peter Panagakos, Town Planner, appeared on behalf of the Responsible Authority

Mr Henry Turnbull, Traffic Consultant of Traffix Group as an expert witness

1. This was an application under Section 77 of the Planning and Environment Act 1987 (The Act) to review a decision by the City of Maribyrnong to refuse to grant a permit in Application Number TP02/0489 for the use and development of land at 381 Williamstown Road Yarraville for the purpose of a restricted retail premises, trade supplies, service industry, a convenience restaurant including vehicle crossovers, erection of an internally illuminated pole sign and a flood sign and dispensation in the associated car parking.

2. At the commencement of the hearing, pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), Mr Wren requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application. The revised plans included, among other things, a reduction in the number of tenancies from 5 to 4, an associated increase in car parking on site, additional landscaping, changes in set backs and decreases in tenancy sizes. Mr Wren tabled a further plan showing an increase in the height of the facade of part of the west elevation of the building earmarked for the restricted retail premises. This plan also showed signage which is not part of the present application.

3. There being no objection, and the Tribunal being of the view that the substitution was appropriate, plans identified as TP01 issue T and OW-SN01 issue PD with the signage excluded, are substituted for the plans that accompanied the application.

4. There was also some discussion at the commencement of the hearing as to whether one of the proposed tenancies, referred to as "Trade Supplies" by the Applicant, was prohibited. Mr Wren informed the Tribunal that tenants had not yet been decided and that the tenancy would conform with the Planning Scheme requirements and should be denoted as a non specified "Trade Supplies" for the purpose of the application.

5. The following description of the site and surrounds is taken from the Responsible Authority's submission:

6. The subject site is located on the south-eastern corner of Williamstown Road and Thomas Street, north of the Westgate Freeway in Yarraville.

7. The site has a frontage to Williamstown Road of approximately 84.73 metres and a frontage to Thomas Street of approximately 6456.4sqm. Vehicle access is currently afforded via four vehicle crossings from Thomas Street, including a wider crossing at the eastern end of the site, and one vehicle crossing from Williamstown Road. Whilst it is acknowledged that there are 2 additional crossovers on the Williamstown Road frontage, the location of the building is such that these crossovers do not provide vehicular access to the site, and ideally should have been removed when their use was no longer required.

8. The site is immediately abutted to the west by Williamstown Road, which is a four lane primary arterial road carrying north/south bound traffic. To the south, the site is abutted by Stony Creek, which is a concrete culvert in this locality. To the south of the culvert is the Westgate Freeway. To the north, the site is bounded by Thomas Street, and residential land use is predominant on the northern side of Thomas Street. The site is abutted by industrial (warehousing) purposes. To the north, and extending further west over Williamstown Road, the site is surrounded by land principally used for residential purposes. There are permit zone parking restrictions in front of residential properties in Thomas Street. Right hand turns from Thomas Street are currently banned.

9. Directly to the south of the site is the Westgate Freeway interchange with Williamstown Road. This is a heavily used interchange, by cars as well as a large amount of trucks from surrounding industrial areas (eg fuel depots, transport depots, container depots etc) including those to the north east in the City of Melbourne and the ports which access the freeway via Francis (Docklands Hwy) and Whitehall streets.

10. The site whilst currently vacant, is understood to have previously functioned in a warehousing/factory capacity with some ancillary/factory sales. Existing buildings on site relate to the industrial use and include large warehouses in addition to approximately 15 on site car spaces provided to the south of the site. It is understood that persons employed as part of the previous use on the site may have utilised this limited supply of on street car spaces in Thomas Street for parking during the day. The existing one and two storey building occupies the majority of the site, and as such there is no landscaping, and limited opportunity for the incorporation of landscaping. An internally illuminated pole sign exists along the Williamstown Road frontage.

11. The proposal is for four tenancies on the subject land identified as 1, 2, 3 and 5. The largest of these tenancies is identified as a restricted retail premises with an Office Works outlet designated as the tenant. This building has a floor area of 1675 square metres plus a small mezzanine containing staff facilities and office. The other proposed tenancies include a 58 seat convenience restaurant with a floor area of 235 square metres and including a drive through facility. This restaurant has been identified as a Kentucky Fried Chicken outlet (KFC). The remaining two tenancies are a service industry with a floor area of 288 square metres indicated to be a Midas or similar and another unspecified trade supplies use with a floor area of 698 square metres.

* 24 hours a day 7 days a week for the convenience restaurant

* Monday to Wednesday 7.00 am - 7.00 pm, Thursday to Friday 7.00 am - 9.00 pm, Saturday 8.30 am - 6.00 pm and Sunday 10.00 am - 5.00 pm for Office Works, and

* 7 day a week, 7.00 am - 6.00 pm for the remaining two tenancies

13. The application provides for a total of 78 car parking spaces on site with access being provided by way of two crossovers onto Thomas Street and, as originally proposed, two crossovers onto Williamstown Road, the most southern being exit only. We were advised that this crossover is now to be deleted.

14. The built form is concentrated towards the rear or eastern boundary of the site with the exception of the KFC, with the car parking generally located between the buildings and Williamstown Road.

15. The application also incudes the installation of an internally illuminated pole sign located along the Williamstown Road frontage. The sign, as proposed, is approximately 10 metres tall and provides for 27.4 square metres of illuminated advertising for the "Western Gateway Centre" and the individual tenancies contained there in. The location proposed for the sign is some 1.4 metres from the Williamstown Road frontage and approximately midway along the site generally in the same location as the existing sign on the land. The application also includes the installation of a sky sign above the roof of the Office Works tenancy. The sign would be floodlit at a height of 13.64 metres and have an area of 39 square metres.

16. The subject site is located wholly within the Industrial 3 Zone and partly in the Urban Floodway Zone. A planning permit is required for the use of the land for all of the proposed uses. The schedule to the zone contains no minimum floor area specified for Restricted Retail Premises. A permit is also required under the provisions for the zone for the construction of buildings and the carrying out of works.

17. The southern portion of the site lies within the Urban Floodway Zone. This is the portion of the site that abuts the Stony Creek Reserve. Stony Creek in this location is a concrete culvert. The proposed use is prohibited in the zone however we were advised that the site enjoys existing use rights under clause 63 of the planning scheme and that the Responsible Authority is satisfied that the requirements of Clause 63.08 with respect to alternative Section 3 uses are met by the proposed uses.

18. The Development Contribution Overlay Schedule 6 applies to the land. The provisions of the Overlay, however, are not relevant to the consideration of this proposal.

19. A permit is required to create, vary or remove an easement or restriction under the provision of Clause 52.02. There is an existing drainage easement traversing the site to the east. The easement previously serviced the existing two lot subdivision and the Council advised that it is no longer required.

20. Advertising signage is covered by Clause 52.05 applying to office and industrial areas. The site lies within Category 2 area which is a low limitation area for signage. A planning permit is required for the proposed pole sign and for the floodlit sky sign.

21. A permit is required under the car parking provisions of Clause 52.06-6 for a dispensation of the number of spaces provided on the land.

22. The development, as proposed, seeks to reinstate two of the existing crossings to Williamstown Road and create a new crossing. The application was referred to was advertised to Vic Roads who required the deletion of the proposed crossover in the south east corner of the site and we were advised that the applicant is content to delete this crossover.

23. The Responsible Authority in assessing the proposal is required to have regard to the State and Local Planning Policy Frameworks, the State Government's recently released metropolitan strategy, Melbourne 2030.

24. The State Planning Policy Clauses of relevance to the consideration of the proposal were identified as Clause 14 Settlement, Clause 17.01 Activity Centres, Clause 17.02 Business, Clause 18.01 Declared Highways, Railways and Tramways, Clause 18.02 Car Parking and Public Transport Access to Development and 19.03 Design and Built Form.

25. The Local Planning Policy Framework is contained within the Municipal Strategic Statement (MSS) which sets out future directions for the municipality and identifies a number of objectives and strategies for the locality. The subject site is located within an area identified as a mixed use area with commercial, industrial and residential activity in specific locations (21.03). The MSS recognises the importance of industry to the municipality and foresees in the future that there will be a reduction in the amount of land devoted exclusively to industrial activity. The MSS notes that opportunities are available for improving residential amenity in mixed use areas associated with the decline in industry in the area, noting in particular,

"Industrial change and decline is now creating many exciting opportunities to restructure and change the image of the city, to improve the amenity of industrial areas and residential areas next to them."

26. The Local Planning Policy at clause 22.07-1 (The South Yarraville Policy) relates directly to industry within the South Yarraville area and has the following stated objectives:

* To reduce, if not eliminate, industrial/residential conflict in the long term,

* To restrict the kinds of industrial activity which can locate in these precincts in future.

27. Clause 22.03-9 Planning Policy for Bulky Goods Retailing applies to land located in a Business 4 zone and is not applicable to this application.

28. The application was received by the Responsible Authority in September 2002. Advertising was undertaken and as a consequence ten objections were received. The objections centred on; traffic safety issues, parking and the impact of the proposed hours.

29. External referrals were carried out to Vic Roads and Melbourne Water as required under the provisions of Clause 55. Vic Roads made no objection to the granting of the permit, but made the following note:

"The right to turn from Thomas Street is banned. Should the developer wish to provide for this movement, now or in the future, then new intersection signals at the intersection with Williamstown Road would be required. These signals would be fully funded by the developer or the occupants of the proposed development."

30. Concern was also expressed about the most southerly exit point which at that time they believed was partly constructed on the Department of Natural Resources and Environment Land.

31. Melbourne Water did not object to the proposed development subject to conditions, while specifically noting that it was advisable to construct finished floor levels at 600mm above the applicable floor level.

32. Internal referrals were carried out to the Council's Transport and Development Department and the Urban Designer.

33. The Transport and Development Department estimated that the parking provision of the proposal at 2.1 spaces per 100 square metres, was inadequate. Further comments were provided with respect limitations to the site access arrangements:

1. "All the entrances to the site are left in and left out.

2. KFC drive through exit is too close to the turning lane to the West Gate Freeway ramp

3. Right turn movement from Thomas Street in to Williamstown Road is not permitted (existing right turn ban).

4. It appears that the design vehicle used to check the turning movements is 10.7 metres Heavy Rigid Vehicle.

5. Show how the truck will manoeuvre in the loading bay from Thomas Street to the stock room.

The development as proposed is inappropriate for the site."

34. The Responsible Authority's Urban Designer was of the view that the proposal should have been accompanied by an Urban Context Report. The Urban Designer made specific comments with respect to; contextual fit/streetscape character, built form, landscape treatment, interface with non industrial areas, parking and site access, loading and services areas, outdoor storage, lighting and signage finding the proposal inadequate in all these areas. However, no urban design evidence was called by the Responsible Authority.

35. The application was refused by the Council on the following grounds;

1. The proposal is not in accordance with the State Planning Policy Framework, Local Planning Policy Framework and the Municipal Strategic Statement

2. The subject site is not an appropriate location for the proposed use and development.

3. The proposal is an overdevelopment of the site.

4. The proposal does not represent an acceptable urban design solution for the development of the property in terms of streetscape character, built form and landscape treatment.

5. Car parking provision is inadequate for the proposal.

6. The design and layout of the car park and loading bay is unsatisfactory

7. The proposed vehicular access and egress arrangements constitute a traffic hazard.

8. The proposed trading hours would be prejudicial to the amenity of adjacent residences.

9. The proposed sign by virtue of its size, height and location are excessive and will visually dominate the area.

10. The proposed use in tenancy 3 is prohibited in the Maribyrnong Planning Scheme.

36. An Application to review the Council's decision was subsequently commenced by the permit applicant on grounds which generally refuted each of the grounds of refusal.

37. The Tribunal, after hearing the submissions and evidence before it and visiting the appeal site, finds that the issues in this appeal fall under the following headings:

2. The operation of the intersection of Thomas Street with Williamstown Road, both with respect to efficiency and safety

3. Parking provision and the potential impact on street parking, and

4. Amenity issues associated with the hours of operation of the site, the visual appearance of the site and the proposed signage.

38. The broad thrust of the SPPF seeks to concentrate commercial activities within existing or planned activity centres. The objective of Clause 17.02 Business is;

To encourage developments which meet community's needs for retail, entertainment, office and other commercial services and provide net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities.

39. Under the heading General Implementation it is stated that;

Commercial facilities should be located in existing or planned activity centres unless they are;

* New freestanding commercial developments in new residential areas which have extensive potential for population growth or will accommodate facilities that improve the overall level of accessibility for the community, particularly by public transport.

* New convenience shopping facilities to provide for the needs of the local population in new residential areas and within, or immediately adjacent to, existing commercial centres.

* Outlets of trade-related goods or services directly serving or ancillary to industry and which have adequate on-site car parking.

40. Notwithstanding the strong policy support for the location of commercial facilities within activity centres, it is clear that there is also recognition of the potential for "outlets of trade related goods or services" to be located outside of existing or planned activity centres.

41. Melbourne 2030 deals with 'out of centre development' at Policy 1.2. In particular, Melbourne 2030 seeks to limit single use retail commercial and recreational facilities that are outside existing activity centres and remote from public transport. The strategy, however, recognises that "out-of-centre" facilities are sometimes justified and sets a number of guidelines for assessing this type of development as follows:

1. "Avoidance of unreasonable impacts on the economic viability or social and cultural vitality of existing or proposed centres in the network.

2. Location on and accessible to the principal public transport network.

3. A comprable portion of work and visitor trips by public transport compared to that achieved by similar uses located in activity centres.

4. A location in an existing cluster of out of centre developments (or adjacent to such an existing cluster if the site is already used for non residential purposes).

5. An improvement to the economic social and environmental performance of that cluster."

42. It was Mr Small's evidence that the nature of the site combined with the tenancies proposed made it appropriate for a development which qualifies for policy support under the "out of centre" guidelines. In particular, it was his evidence that the proposed development will not impact on the operation of the existing retail hierarchy within the municipality as the uses proposed are not necessary components of large activity centres and are generally single destination activities. They are, in addition, not uses compatible with public transport with access being essentially car based. It was further his evidence that the tenancies themselves form a cluster which will be a compatible neighbour with the adjacent residential area and abutting industrial precinct.

43. Policy at the local level encourages the restructure of industrial areas with the goal of improving the amenity of adjoining residential areas, and seeks to eliminate the industrial/residential conflict in the long term. In particular, the MSS and Local Policy seeks to restrict the kind of industrial activity which can locate in or adjoining sensitive precincts. It was Mr Small's contention that the kind of activity proposed on the subject site was an improvement on the previous industrial and warehouse use of the land and would have a lesser amenity impact on adjoining residential areas.

44. We accept Mr Small's evidence on these matters and we are of the view that the uses proposed in this application are consistent with the type of uses which the LPPF seeks to encourage in areas where there does exist a land use conflict arising out of the interface between a residential area and an industrial zone. While this consideration alone is clearly not sufficient justification of itself to support the introduction of new commercial uses per se, we are satisfied that, for the reasons enunciated by Mr Small, the proposed uses are of a type which are consistent with the out of centre guidelines.

45. We also found Mr Small's review of the history of the zoning and land use of the site to be of some relevance, to the extent that some level of commercial use had been provided for on the site over a prolonged period of time. Mr Small's analysis was extended by Mr Wren's submission that the Industrial 3 zoning of the land was something of an anomaly. Mr Wren pointed out that the purpose of the Industrial 3 Zone is among other things, to provide a buffer between Industrial 1 or Industrial 2 zones and local communities and to allow for uses compatible with the nearby community. The review site does not fulfil its intended buffer function. It was Mr Wren's further submission that none of the Section 1, "permit not required" uses, would be appropriate for the land, the only Section 1 use with any likelihood of being permitted being a service station. It was pointed out that all the "permit required" uses involve an element of retail activity consistent with what is proposed here.

46. In our view the characteristics of the site presents difficulties in terms of identifying what would be appropriate uses. While the site is large and is abutted by a major road and a freeway, it is adjoined by industrially zoned land which is used for warehousing and related uses, with residential abuttal on the opposite side of Thomas Street. There are, in addition, difficulties associated with the exit from Thomas Street, in particular, with regard to its proximity to the entrance and exit of the freeway (matters to which we will return subsequently)

47. It is our view that the proposal represents a reasonable response to the physical and functional constraints of the site and achieves an outcome which is acceptable having regard to the provisions of the zone and the applicable policy framework.

48. The Responsible Authority and the Permit Applicant both called expert traffic evidence. Mr Silva also provided the Tribunal with traffic information which formed the central platform of his traffic safety concerns. Traffic concerns centre on the efficiency and safety of the operation of the intersection of Thomas Street with Williamstown Road.

49. Williamstown Road is a primary arterial road, with two lanes of traffic in each direction. The road divides towards the southern part of the site. Slip lanes are provided in this section for traffic entering and exiting the ramps to the Westgate Freeway.

50. Thomas Street is a dead end local road. Recent works have been undertaken at the Thomas Street and Williamstown Road intersection by Vic Roads. These works restrict egress from Thomas Street to a left turn only and place pedestrian signals on Williamstown Road to the north of the Thomas Street intersection. The pedestrian lights are connected to detector loops, located in the right hand turn lane off Williamstown Road into Thomas Street and the left hand turn lane out of Thomas Street. The operation of the pedestrian lights thereby providing a break in the traffic enabling traffic to turn into and out of Thomas Street. The works were funded under the Federal Black Spot Program.

51. The traffic generation figures for the proposed development, provided by Mr Tucker, were based on the NSW Road Traffic Authority, Guide to Traffic Generating Developments. Mr Tucker's figures were adopted by Mr Turnbull although the actual figures he used came from an earlier report. It was the conclusion of both traffic experts, with respect to the traffic generation that the Thomas Street/Williamstown Road exit, would have sufficient capacity to accommodate the additional traffic movements. Mr Turnbull was, however, concerned about the inability of traffic to leave Thomas Street and to merge into the north bound carriageway of Williamstown Road which vehicles intending to head north will be required to do in order to execute a "u turn" further south on Williamstown Road. Mr Turnbull was also concerned about the provision for a right turn into Thomas Street from Williamstown Road.

52. It was suggested by Mr Turnbull that the signalisation of Thomas Street and Williamstown Road would facilitate traffic movements and obviate the need for the U-turn. It was, however, Mr Tucker's evidence that this was not a course of action that was favoured by Vic Roads as lights in this location would require a separate right turn lane from Williamstown Road. The lights, in addition, would be 20 metres further south than the present pedestrian lights and have safety implications associated with traffic entering and exiting the freeway.

53. Mr Silva had done some traffic counts of his own and was of the view that at peak periods traffic build up in Williamstown Road would be such that the exit from Thomas Street would be blocked, leading to a build up of traffic within Thomas Street. It was his further submission that there were times associated with his own business, when a significantly greater number of customers needed to enter the site to pick up pre-ordered school books. There were, in addition, problems associated with traffic travelling north and turning right into Thomas Street at busy times when the build up of stationary traffic blocked the Thomas Street intersection.

54. The Tribunal appreciates that there are potential difficulties associated with exiting and entering this site from Thomas Street. In our view however, these difficulties are inherent in the site's location and would have existed when the previous use occupied the land, and will continue to exist in circumstances where this site remains vacant. The task for the tribunal is to determine whether the proposed uses contribute to a level of traffic congestion at the intersection which is beyond the capacity of the intersection to accommodate.

55. We note that it was acknowledged by Mr Silva that recent improvements to the intersection undertaken by Vic Roads which include the left turn only configuration and the introduction of pedestrian lights to the north of the intersection, had facilitated improved egress and access from Thomas Street.

56. Mr Silva's submission supported by his traffic counts were that a number of parties make illegal right turns out of Thomas Street. It was acknowledged by both traffic experts that a proportion of the left turning traffic would be desirous of going north rather than south on Williamstown Road. This traffic would be obliged to make a U-turn somewhere further to the south of the intersection. Two potential U-turn locations were mentioned; the Avenue to the south of the freeway and at the on ramp to the freeway. It would appear that a U-turn at this second location is envisaged by Vic Roads in that there is a sign specifically stating, "No U-turn is permitted between the hours of 7.00 am - 9.00 am", indicating of course that a U-turn is available at other times.

57. The Tribunal carried out U-turn manoeuvres at both potential locations on its visit to the site without difficulty. The Tribunal appreciates that there might be more problems associated with this manoeuvre at peak hour when the traffic exiting Thomas Street desirous of going north will have to cross the two lanes of traffic in Williamstown Road to position itself to make the U-turn. When this manoeuvre is not available or capable of being achieved, the location further to the south at the Avenue represents a convenient alternative.

58. The Tribunal concludes, in light of the evidence and information provided to it, that the exit and entrance from the site particularly via Thomas Street is far from ideal, but that the problem is an existing one which has been improved by the recent works carried out by Vic Roads. It is clear that any development on the subject land will add to the traffic using the intersection but in our view the proposed uses exhibit traffic generating characteristics which are relatively low in comparison to other alternative uses which could be accommodated within the zone. Notwithstanding our conclusion that the Willimastown Road/Thomas Street intersection is a difficult intersection, we are satisfied that the proposed uses are appropriate and that sufficient capacity exists in the intersection to accommodate the uses.

59. The Statutory Parking Requirements for the proposed development are contained at Clause 52.06 of the Maribyrnong Planning Scheme. The table to the Clause, however, does not specify car parking rates for the majority of the proposed uses, only specifying 8 spaces per 100 square metres for shops and 10% of the site area for motor repair workshops. Mr Turnbull used the floor area for all of the uses, apart from the motor repairs of eight spaces per 100 square metres, to calculate a Planning Scheme requirement of 190 spaces. The motor repairs floor area calls up a requirement of an additional 3 spaces giving a total of 193.

60. The Planning Scheme provides a number of guidelines which may be used to justify a reduction in the car parking requirement. The only guidelines of relevance to the present proposal are the following:

2. Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of the variation of car parking demand over time or because of efficiencies gained from the consolidation of shared parking spaces.

3. The availability of public transport in the locality.

61. There are a number of bus routes along Williamstown Road, however, it was common ground that public transport was not a relevant factor in assessing demand for the proposed development, given the nature of the occupancies and their location.

62. With respect to shared uses, it was Mr Tucker's evidence, that anticipated peaks for each of the uses would not generally occur simultaneously. In particular, the peak for the convenience restaurant would be expected to occur around 8.00 pm and the remaining uses to peak throughout the morning and middle of the day. This view was countered by Mr Turnbull, who was of the view that the peak parking demand for all the uses would be likely to be around lunch time on a Saturday.

63. The following empirical assessments of the expected demand for the proposed development provided in the traffic evidence was.

1. The parking requirements for a slow trade retail use, for the Office Works, given in the NSW Road Traffic Authority Guide to Traffic Generating Developments 1993 is 2.4 spaces per 100 square metres. Mr Tucker compared this value with a number of rates obtained from surveys of similar uses. Specifically, Northland Home Maker Centre and Office Works, where a peak demand of 1.41 spaces per 100 square metres was obtained in a Ratio consultants survey and 1.5 spaces per 100 square metres in a Greg Tucker and Associates Survey at 2.00 pm and 12.00 pm on Saturday afternoons respectively. The estimate adopted by him was the conservative one of 2.4 spaces per 100 square metres, giving a maximum requirement of 44 spaces as compared with the figure of 64 for the same use estimated by Mr Turnbull (also based on survey data).

2. The parking requirements for the convenience restaurant with associated drive through was estimated by Mr Tucker on the basis of a number of surveys at 0.27 spaces per seat. Giving a maximum requirement of 16 spaces. It was his evidence that this was consistent with peak demands obtained in a survey by his firm, of three KFC stores of similar size with a drive through facility. Mr Turnbull adopted an average rate of 0.35 car spaces per seat based on peak parking generation of a number of fast food outlets, giving a maximum demand 21 spaces.

3. Mr Tucker's calculation for the car workshop survey undertaken by his firm in 1992 of an Ultra Tune store, which indicated a peak parking demand of 2.27 spaces per 100 square metres, giving a total requirement of 8. It was further his evidence that parking peaked for such a use peaked at 9.30 am. Mr Turnbull's estimate on the other hand, was based on the number working bays, with a parking demand of 4 spaces per bay, giving a total of 16. The RTA NSW Guide to Traffic Generating Developments 1993 contained a peak rate for a tyre retail outlet of 3 spaces per 100 square metres, giving a total of 11 spaces

4. The remaining tenancy is a trade supply premises. This tenancy covers a number of potential uses which would have varying parking demands. It was Mr Tucker's evidence that the range of potential uses would have a conservative demand of between 2 and 2.25 spaces per 100 square metres, giving a requirement for some 18 car spaces at peak. Mr Turnbull on the other hand, estimated the value to be potentially 2 spaces per 100 square metres, giving a requirement of 13.

64. Mr Tucker was also of the view that there was a temporal aspect to the peak parking demand resulting in a total peak demand of 74 spaces. He provided the Tribunal with a tabulation of temporal demand for each of the categories of use proposed. The tabulation indicated that the peak demand for the convenience restaurant was between the hours of 6.00 pm and 10.00 pm and the demand at the time of the peak trading for the other uses was around 5.5 spaces. He similarly found a reduction in peak demand for parking associated with the car retail workshop during the middle of the day when the other uses were at their peak. Taking these figures into account, the peak demand for the uses on site was estimated to be 74 spaces. It was further put to the Tribunal that there was the potential for additional informal parking associated with tenancy number 2, possibly allowing for an additional 2 to 4 vehicles.

65. The Tribunal after hearing all the evidence is of the view that there will be an element of space sharing associated with the combination of uses. The Tribunal also finds, and this was acknowledged by Mr Turnbull, that the figures for the convenience restaurant were reliant on values for McDonalds restaurants, which generally speaking have a higher peak demand than KFC. The Tribunal also finds that his estimate for the car workshop service industry was on the high side. Taking all these factors into account, the Tribunal is of the view that the parking provided on site will be sufficient for the uses proposed and, in particular, will not add to pressures for parking in Thomas Street. In light of this conclusion the Tribunal is of the view that there will be no loss of efficiency of the operation of Thomas Street as a result of overflow parking from the development.

66. The remaining matter related to traffic was the adequacy of the loading bay access. It was the evidence of Mr Tucker that the access and loading bay facilities as provided would be adequate to accommodate the demands of the various tenancies. In particular, he provided the Tribunal with swept path diagrams for the loading bays for the three major tenancies on site, demonstrating the consistency with the standard of the access and egress arrangements. This evidence was not challenged and the Tribunal is satisfied that the provisions are adequate.

67. The remaining issue with respect to the proposed development relates to residential amenity. There are a number of residential properties opposite the site in Thomas Street. These properties are located at an Industrial/Residential Zone Interface and their amenity is also impacted by their proximity to a major road, Williamstown Road. The level of residential amenity in such locations cannot be expected to be as high as one would find in a totally residential area. It is however appropriate, particularly in light of the provisions of the LPPF to which we have referred previously and which seek to achieve an improvement in residential amenity in areas adjoining industrial zones, that consideration be given to the impact of the development on the residential properties. The potential impacts on the amenity are; additional traffic, loading and unloading from the site and the hours of operation of the site.

68. It was Mr Small's evidence that the noise associated with the traffic from the development would be lost in the noise from Williamstown Road. It was his recommendation that additional protection could be provided by limiting the hours of operation of the loading bay most proximate to Thomas Street. The Tribunal agrees that this is an appropriate measure that will provide additional amenity protection to the dwellings.

69. The Tribunal finds with respect to the hours of operation that the retail and the car service tenancies would only operate within normal business hours and therefore comparable with the previous use. The proposed hours of operation of the Office Works store are more extensive, being 7.00 am - 7.00 pm Monday to Wednesday, 7.00 am - 9.00 pm Thursday and Friday, 8.30 am - 6.00 pm on Saturday and 10.00 am - 5.00 pm on Sunday. The information provided by Office Works was that the busiest trading hours during the weekdays were 11.00 am - 3.00 pm, on Saturdays from 12.00 midday - 6.00 pm and on Sundays 10.00 am - 5.00 pm. The Tribunal finds the hours of operation acceptable in the context of the zone interface given that evening trading is relatively light.

70. The potentially most disruptive use on residential amenity is the KFC tenancy. This tenancy is located in the south west corner of the site at greatest distance from the residential zone. In addition, there is an entry/exit provided for the tenancy off Williamstown Road. The Tribunal is of the view that, particularly at night, this would be the entry/exit of choice for patrons to the KFC and that the separation distance is more than sufficient to protect the amenity of the local residents.

71. The Tribunal finds in other respects that with the widened landscaped area the potential exists for the planting of trees along the Thomas Street boundary of the site and also within the site. In the Tribunal's view such planting will result in a positive contribution to the amenity of the street and an improvement on the existing situation.

72. The Tribunal also finds that the proposed development presents a significant reduction in visual mass associated with the existing building on the site and that this will also contribute to approved visual amenity in the street and an improvement in the outlook for the residential properties opposite. All security lighting on site should be baffled to reduce light spillage to the Residential Zone.

73. The Council expressed concerns with respect to the signage, and the Tribunal notes in this regard that the only signage applied for in this application are the pole sign, which replaces an existing pole sign, and the floodlit sign on the Office Works tenancy, which will be directed towards Williamstown Road. All future signage will require a separate permit from the Council. The Responsible Authority was of the view that the signage was excessive and not consistent with Clause 52.05 of the Maribyrnong Planning Scheme.

74. The Responsible Authority has a Signage Strategy November 1999, which is a reference document in the Planning Scheme. The Strategy has, among its objectives, to maintain key views of the municipality along the Westgate Freeway, Geelong Road and Ballarat Road, to enhance the urban city and frontages in the municipality along the Westgate Freeway, Geelong Road and Ballarat Road and to promote the inner city character of the municipality. The strategy, in particular, states:

"Council does not support large promotion signs along major routes within the municipality and they should be discouraged as they detract from the inner city character of Maribyrnong and its urban settings and frontages."

75. It was the Responsible Authority's view that the existing signage on site was an anomaly and replacing it will impact negatively on the freeway, the residential properties and a nearby open space reserve along Stony Creek. The Tribunal was informed the existing pole sign had limits on its hours of operation.

76. The Tribunal, on balance, is of the view that the signage proposed for the site is appropriate to the site having regard to its zoning, main road frontage and proximity to the Westgate Freeway interchange.

77. Having regard to the above findings, a permit is granted and directed to be issued in accordance with the attached Order.

Environment Act 1987

Audible Intruder Alarm Regulations 1978

Western Gateway Centre Pty Ltd v Maribyrnong CC [2003] VCAT 1382

At a glance

Court

Decision date

Source

Judgment (196 paragraphs)

Western Gateway Centre Pty Ltd v Maribyrnong CC [2003] VCAT 1382 (2 October 2003)

Parties

Legislation Cited (2)