Xu v Hobsons Bay CC [2008] VCAT 1669

The decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.

1. This is an application under Section 77 of the Planning and Environment Act 1987 against Council's refusal to grant a permit to install a roller shutter to the front of the existing shop at 73B Railway Avenue, Laverton. The grounds of refusal relate to the negative impact of the roller shutter door on the streetscape, its detraction from the amenity of the area, and the proposal being inconsistent with the State and Local Planning Policy Frameworks of the Hobsons Bay Planning Scheme.

1. At the commencement of the hearing, Council advised the Tribunal that it would not be contesting the third ground of refusal. This ground, "the existing security shutter erected on the site must be removed within 60 days of the date of this permit" is not a ground of refusal but Council's intention in the enforcement of the Scheme with the refusal.

1. The review site is located on the south side of Railway Avenue nearly opposite the Laverton Railway Station on the Werribee Line, Laverton. It is developed with a single storey building used as a milk bar and a dwelling. The Tribunal understands that the operator of the milk bar (review applicant) lives in the premises.
2. The front facade of the milk bar is comprised partly of a brick wall with three highlight windows and a shop front. The proposed roller shutter door is over the shop front and is already installed. It is pulled down when the milk bar is closed.
3. To the west of the site is another single storey shop used as a take-away food premises. There is also a roller door over the shopfront of that building. Further west on the west side of Epsom Street is a fire station. The fire station also has security door for its fire trucks, except this door is clear above the ground panel. Further west of the fire station are more single storey commercial buildings used as shops and offices. The last shop of the strip at the corner with Donald Street, No. 93 is a tattooist shop. It also has a roller door over its shopfront.

1. The proposal is to obtain a retrospective permit for the roller shutter door installed over the existing shop front of the milk bar.

1. The review site is in the Business 1 Zone of the Hobsons Bay Planning Scheme ("the Scheme"), under which a permit is required to construct buildings and works. This includes internal rearrangement of a building if the maximum leasable floor area specified in the schedule to this zone is exceeded. There are exemptions but a roller shutter door is specifically not exempt. In deciding on an application, Clause 34.01-4 requires the Responsible Authority to consider the State and Local Policy Frameworks, and relevantly the impact on the streetscape, the protection of the active frontages to pedestrian areas, and the treatment of the fronts and backs of buildings and their appurtenances.
2. Other relevant provisions and policies from the Scheme are Clauses 19.03 Design and Built Form, 21.08 (Activity Centres), and 65.

1. At the hearing, Council spoke to a written submission. Ms. Xu made an oral submission. Additional documents were tabled at the hearing, including similar cases determined by the Tribunal and Police incident reports on the burglary and theft committed against the milk bar.
2. Decision was reserved. The Tribunal indicated that it would inspect the site before doing so. It has done so on 10 August 2008.

1. The only planning issue of this review is the visual impact of the roller door on the streetscape and commercial character of Railway Avenue.
2. The Tribunal accepts that shops in the area face a security problem as small businesses such as a milk bar are soft targets for burglars. The matter here is whether the proposed roller door is acceptable in visual amenity terms and whether there are alternatives. The fact that the roller shutter is already in place is not a reason for approval. It is an unfortunate occurrence that the operator of the milk bar has gone into the expense of installing it without approval being obtained.
3. Council advised that it is in the process of overhauling roller shutter doors in the business areas of Hobsons Bay. The roller door of this review is one of a number that were installed without a permit and it is one of a number that are going through a planning permit application process. A number of other decisions are pending on the determination of this review.

1. Council submitted that a roller shutter door is not part of the urban environment of Laverton. The proposed door is highly visible when the business is closed and shutter drawn. It contended that it detracts from the appearance of the building, that a solid roller shutter does not maintain visibility of the shop, or allows light emissions between the shop and the footpath. It contended that a roller door would not minimise the opportunity for vandalism, particularly as this door has continued to be subject to graffiti vandalism. Not only that there is no policy support for a solid metal roller door, Council submitted that it is currently preparing a planning scheme amendment in C48 to introduce a specific local policy to discourage this form of security screen. It, however, concedes that this amendment is at a very early stage, that it has yet to be placed on exhibition.
2. Council cited other Tribunal decisions where the Tribunal has upheld Council's decision to refuse such doors for premises in Business Zone[1]. One is in Hobsons Bay and the other in Boroondara. With regard to the Hobsons Bay case, Council noted that there are similar circumstances and the same planning controls. In that example, Sakkas v Hobsons Bay CC [2000], the Tribunal commented that:
   1. The Tribunal considers the existing roller doors rather unsightly, and there has been no attempt to enclose or disguise the roller door encasement. The view of these roller doors does not little enhance the appearance of the shops. Whilst the placement of a further roller door on the third shop in a row may be seen by some people as only marginally worse than that which exist is on the two adjoining shops the Tribunal considers there are alternative treatment to achieve a reasonable standard of security for the shopfront. It is disappointed that the applicant is unwavering in his desire to have a solid type roller door (only) on the shopfront.
3. The Tribunal for the Boroondara case expressed a similar view and endorsed Member O'Leary's thinking and finding in the Hobsons Bay case.
4. As for the review applicant, Ms. Xu stressed the importance of security to the milk bar. She gave an account of burglaries committed against the shop, the value of stock in the shop, the effectiveness of the roller door in preventing break-ins, preventing damages, and cost and loss of business if business is interrupted due to damages.
5. She disagreed with Council's description of the area as an activity centre, as the area is dominated by houses and not shops, and that the appearance of the milk bar would not affect any activity centre. She contended that the milk bar is a stand alone building and not part of a group of shops. To her, shop windows will be broken without the roller shutter and the shop will be robbed. If Council is concerned about the appearance or the colour of the roller shutters, she said Mr. Xu has repainted it to match the colour of the surrounding wall. She argued strongly that the roller door would not affect the streetscape of the area most of the time, as it is in an open position when the milk bar is trading, which is 6:00am to 9:30pm every day. During those times, it is her contention that the roller door will not be seen.
6. The Tribunal understands the review applicant's concern about safety and security of his business and the impact on its viability if it has to stop trading due to burglaries. It is the visual impact of the solid roller shutter that is the concern. It does present a solid barrier to the streetscape when in a closed position. This is not a positive thing to the streetscape and does detract from the active retail frontage for both pedestrians and motorists who drive past.
7. The Tribunal's inspection of the site is around 9:30am in the morning when the milk bar was open and the takeaway food premises at 73 Railway Avenue were not. During that inspection, the Tribunal also took the opportunity to inspect the other group of shops near the Laverton Railway Station in Wood and Lohse Streets. This inspection confirmed the negative impact of solid roller doors to the streetscape and the appearance and ambience of the business area. The Wood/Lohse Street shops are a good example of such a negative impact where there is a concentration of roller doors. There is a row of six shops with roller doors in Lohse Street and another two in Wood Street. The strip looks desolate, uninteresting, uninviting and neglected. It is not attractive to pedestrians or for that matter any business to remain open. They detract from any vibrancy that was there.
8. The Tribunal concludes that roller doors over shopfronts detrimental to the vitality of a shopping strip. It is in the same line of thinking as the other divisions of the Tribunal had in the Hobsons Bay and Boroondara cases cited by Council. To allow this one will be a precedent to other shops in the same strip to the detriment of the streetscape and vitality of the strip. The Tribunal cannot find support for the proposed roller door in terms of planning controls or from its impact on the area.
9. To refuse this application is not to deny Mr. Xu's concerns about security, just which security device to be used. The Tribunal would encourage Mr. Xu to discuss with Council officers to canvass a more acceptable device. It notes that the fire station also has a security door for its fire trucks, one that is transparent above the lowest panel.

1. The decision of the Responsible Authority to refuse the application is affirmed and no permit is to issue.

[1] Sakkas v Hobsons Bay CC [2000] VCAT 2486, dated 30 November 2000; and Carter v Boroondara CC [2005] VCAT 2739, decision dated 20 December 2005.