VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST / vcat reference No. P615/2017
Permit Application no. TPA/46813
CATCHWORDS
Monash Planning Scheme; General Residential Zone; 70 place child care centre; reduction in the required number of car parking spaces; parking on alternate site; traffic; neighbourhood character; amenity impacts.
APPLICANT / Garris Enterprises Pty Ltd
responsible authority / Monash City Council
RESPONDENTs / D Vanderwerp & Others, Huntingdale Golf Club
SUBJECT LAND / 51 Riley Street, Oakleigh South
WHERE HELD / Melbourne
BEFORE / Michael Nelthorpe, Member
HEARING TYPE / Hearing
DATE OF HEARING / 18 September 2017
DATE OF ORDER / 30 October 2017
CITATION / Garris Enterprises Pty Ltd v Monash CC [2017] VCAT 1769

Order

1  In application P615/2017 the decision of the responsible authority is affirmed.

2  In planning permit application TPA/46813 no permit is granted.

Michael Nelthorpe
Member

Appearances

For applicant / Mr Mark Waldon, town planner of St-Wise Planning Professionals.
He called the following witness:
Mr Don Robertson, traffic engineer of the Traffix Group.
For responsible authority / Mr Gerard Gilfedder, town planner of Currie & Brown.
For D Vanderwerp & Others / Ms D Vanderwerp
For Huntingdale Golf Club / Mr Alex McGillivray

Information

Description of proposal / A 70 place child care centre in a three-storey building plus basement with a reduction in the required number of car parking spaces.
Nature of proceeding / Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Planning scheme / Monash Planning Scheme
Zone and overlays / General Residential Zone Schedule 2
Permit requirements / Clause 32.01-1: to use land for a child care centre;
Clause 32.08-8: to construct a building or construct or carry out works for a child care centre; and
Clause 52.06-3: to reduce the required number of car parking spaces.
Relevant scheme policies and provisions / Clauses 9, 10, 11, 15, 18, 21.02, 21.03, 21.04, 21.06, 21.13, 22.01, 22.04, 22.05, 22.09, 22.13, 52.06 & 65.
Land description / The site is located on the south side of Riley Street where it joins with the southern nib of Windsor Street. It is regular in shape with a 24.2 metre frontage to Riley Street, an 11.48 metre frontage to Windsor Street, and a total area of 618 square metres.
A single-storey house in a garden containing some canopy trees occupies the site.
Oakleigh South Primary School is located on the opposite side of Riley Street.
Tribunal inspection / 16 September 2017.

Reasons[1]

1  Garris Enterprises Pty Ltd (‘the applicant’) proposes to use and development a site at 51 Riley Street, Oakleigh South, for a 70 place child care centre. Monash City Council refused to grant a planning permit and the applicant seeks a review of this decision. Ms Vanderwerp represents a number of nearby residents and parents of children at Oakleigh South Primary School who have joined this review. The Huntingdale Golf Club, which abuts Riley Street opposite the site, has also joined this review.

2  The applicant relies on amended plans that have incorporated Mr Waldon’s recommendations. They also rely on Mr Robertson’s traffic evidence that includes an alternate basement layout. Relevantly, Mr Robertson can only support the proposal if a gravel car park owned by the State Department of Education is available for parents to park in at the morning peak (8:30am-9:30 am).

3  The council’s grounds relate to non-compliance with local policy on non-residential uses in residential areas[2] and insufficient car parking. It says that the proposal is an overdevelopment of the site. The respondents share these concerns.

4  Based on this summary, I find that the issues I must resolve are:

·  Is the proposal an acceptable response to planning policy?

·  It is acceptable for the proposal to rely on the gravel car park?

5  Having heard submissions and evidence, and having inspected the site, I find against the applicant on these issues.

6  With regard to the first issue, I find the proposal fails to respect the area’s character due to its scale and prominence. These same attributes cause unacceptable amenity impacts on adjoining properties.

7  With regard to the third issue, I find that it is not acceptable for the proposal to rely on the gravel car park, as the applicant has no formal or enduring agreement with the owner of this land.

8  I elaborate on these findings below.

is the proposal an acceptable response to planning policy?

9  I accept the applicant’s submission that a child care centre is an acceptable use in a residential area. Planning policy anticipates locating such uses in or near local communities, and the General Residential Zone reflects this. I also accept the applicant’s submission that locating this use opposite a primary school and near a large employment area is a positive planning outcome.[3] There are synergies between these uses that can benefit parents and the broader community. Finally, I accept their submission that a non-residential use does not have to look like a house. I consider that planning policy presumes a non-residential appearance when supporting such uses in residential areas.

10  However, these are general principles that do not take account of the particular characteristics of the site, nor of the neighbourhood in which it is located. I give them some weight but they are not determinative.

11  I find that the proposal fails to respect the area’s character due to its scale and prominence. It is a large building on a difficult site in a neighbourhood of modest homes. I find that the combination of these three factors results in an unacceptable outcome in terms of neighbourhood character.

12  I say that it is a large proposal principally because of the 206 square metre, first floor outdoor play area, and the two storey wall above basement on the south boundary. I will address these issues separately.

13  The 206 square metre, first floor outdoor play area occupies the entire frontage and the western front setback – a distance of at least 36 metres that wraps around the curve where Riley Street joins Windsor Avenue, and returns to the building across the western side elevation. As it is an elevated structure, it has a 1.1 metre high balustrade along most of its frontage. This balustrade increases to 1.8 metres where it returns to the building across the western side elevation. This return is adjacent to the front yard of the property to the west.

14  The fatal flaw with this outdoor play area is that it is setback two metres from the Riley Street frontage and along the return on the western side elevation. I find that this feature is too prominent to be regarded as being respectful of the neighbourhood’s modest scale and deep front gardens.

15  I have said that the site is difficult. Its difficulty is its long, open frontage that consists of its eastern side as well as its northern frontage. As such, it is an exposed piece of land in the context of its neighbours. I find that the location and siting of the outdoor play area exaggerates this sense of exposure. I understand the architectural logic of siting this feature to the north and east of the indoor sections of the proposal, as it will provide excellent light and shade. However, I do not regard this architectural benefit as outweighing the adverse impact on the neighbourhood’s character.

16  I find that the proposal is not assisted by the modest scale and deep front setbacks of the surrounding neighbourhood. This is an area where little recent development has occurred. Consequently, the character of the original 1950s/1960s development, interspersed with the occasional 1970s villa units, is pervasive. Deep front setbacks are a distinguishing feature of this character. The site analysis plan that accompanied the permit application shows front setbacks of 8-13 metres on adjoining properties. I find that the disparity between the setback of the proposed outdoor play area and that of its neighbours is too great to be outweighed by those policy that support child care centres in residential zones.

17  I accept that the Oakleigh South Primary School contributes to the local neighbourhood character. However, it does not reduce the proposal’s prominence, as the school’s open sports fields are opposite the Riley Street properties. This is a benign, as opposed to confronting, interface.

18  I find that the two storey wall above basement on the south boundary is an unacceptable outcome in character terms. The basement extends for 23 metres along the south boundary, with the building’s south-facing two-storey wall mainly setback 1.8 metres but on the boundary for nine metres. This wall is articulated through a repeating pattern of a vertical panel of windows separated by masonry, and by the chamfer of wall above the six metre mark in order to comply with Standard B17 of ResCode. Areas of natural ground (free of the basement) are available along the southern elevation to the east and west of the building.

19  I find this arrangement does not allow for landscaping that will soften the wall’s appearance from the property to the south. The basement’s location makes prohibits in-ground planting and will result in this south-facing wall being stark and prominent. Landscaping to the east and west of this wall would not ameliorate this impact, given the wall’s length and height. I find this is unacceptable.

20  While this arrangement would lead to the removal of an established eucalypt I do not place great weight on this change given that there are no vegetation protection controls in this neighbourhood and because tall trees are not a strong characteristic of this area.

21  These findings relate to the neighbourhood’s existing character, and I accept that this will change in the foreseeable future. Melbourne’s population is anticipated to increase from the current 4.5 million to almost 8 million. This results in a demand for 1.6 million homes, with policy supporting around 65% of these new homes in Melbourne’s established areas. Areas within the General Residential Zone are expected to accommodate some of this growth. This is reflected in the Zone’s provisions that now envisage three-storey buildings in appropriate locations. These provisions apply to this neighbourhood.

22  With regard to the preferred character, I note that the site is in Character Area C which seeks to preserve a sense of openness and vegetation in new development. I am aware that this designation applies to broad swathes of Monash and leads, at a minimum, to deep front setbacks being provided in new development. I find that the proposal will not make a positive contribution to this preferred character, as insufficient space for planting is available along the frontage. I acknowledge that landscaping is possible, yet find that it will not screen or soften the proposed building to a sufficient degree.

23  Separately, I find that its non-compliance with local policy is not justified to an acceptable degree. My findings above address many of the issues in this policy, and I will not repeat them here. With regard to the outstanding issues, I give some weight to the applicant’s submissions that the site’s location near, but not on, a main road is acceptable. I accept their submission that many of the proposal’s advantages and constraints would apply to a proposed child care centre on the site to the south, which is on Centre Road. As such, I would not find against this proposal solely because of its location on a local street.

It is acceptable for the proposal to rely on the gravel car park?

24  As mentioned earlier, the site is opposite Oakleigh South Primary School. Ms Vanderwerp submits that this is an exceptionally successful primary school with up to 1,000 students. Riley Street is the only street frontage to the school.

25  School-related parking is carefully managed. On-street parking during the morning peak is limited to one side of the street, and is generally restricted to two minute ‘drop off’ parking, except for an unrestricted area close to the review site. Apart from this, parents also use a gravel car park to the east of the school’s playing fields for parking. This area is unrestricted.

26  Mr Robertson’s expert opinion is that Riley Street cannot accommodate the parent parking demand during the morning peak (8:30am-9:30am). He observes that the peak parent parking demand is up to eight spaces, whereas only four suitable spaces were available within the nominated survey area, excluding the gravel car park. He anticipates that Riley Street can reasonably accommodate parent parking demands at most other times given that this demand will be spread across the child care centres operating hours. He acknowledges that existing parking demands are high during the school pick up peak, yet notes that the child care centre’s peak pick up time is later in the day. He concludes that the proposal can rely on the gravel car park to accommodate the peak parent demand, and that a reduction in the statutory parking rate is justified on this basis.

27  Mr Waldon submits that the parking demands described above occur at schools across Melbourne, and are not exceptional. He submits that it is reasonable to rely on the gravel car park as it is likely to remain a feature of the school for the foreseeable future. He advises that the State Department of Education has verbally agreed that the centre can use this gravel car park. He advises that the applicant will accept a permit condition requiring the Department’s written consent that the car park can be used while it is available.