Well, news just to hand…..we LOST at VCAT. A heart felt thanks to all of you for your support and concern throughout this ordeal. If anyone would like to read the Tribunals decision I have posted it below. My last avenue is to appeal to the Supreme Court but I dont have that much fight left over….Ive got a cafe to run. VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL administrative DIVISION planning and environment LIST vcat reference No.P978/2014 Permit Application no.MPS/2011/208/B CATCHWORDS Moreland Planning Scheme; General Residential Zone Schedule 1; Heritage Overlay 56; Amendment to a permit; Restaurant; New building façade; Extension of hours; Heritage; Parking; Amenity of residential area APPLICANT Joanna Wilson RESPONSIBLE AUTHORITY Moreland City Council SUBJECT LAND 49-51 Pearson Street, Brunswick West WHERE HELD Melbourne BEFORE G Rundell, Member HEARING TYPE Hearing DATE OF HEARING 3 November 2014 DATE OF ORDER 20 November 2014 CITATION Order The decision of the Responsible Authority is affirmed. Permit MPS/2011/208 is not amended. G Rundell Member APPEARANCES For Applicant Ms Joanna Wilson, in person For Responsible Authority Mr Peter O’Leary, consultant town planner INFORMATION Description of Proposal To amend permit MPS/2011/208 to undertake buildings and works (replace the front façade) for a section 2 use in the General Residential Zone and buildings and works on land in a Heritage Overlay. To amend condition 3 on permit MPS/2011/208 to extend the hours of operation from 6pm to midnight Monday to Sunday. Nature of Proceeding Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to amend a permit. Zone and Overlays General Residential Zone Schedule 1 Heritage Overlay HO56 Permit Requirements Clause 32.08-1 (use of land for a restaurant on a lot in GRZ1) Clause 32.08–6 (buildings and works for a section 2 use in GRZ1) Clause 43.01–1 (buildings and works on land in HO56) Relevant Scheme, policies and provisions Clauses 9, 10.04, 11.01, 11.04, 15.01, 15.03, 17.01, 18.02, 21.03, 21.05, 22.13, 52.06, 52.34, and 65 Land Description The review site is located on the west side of Pearson Street, approximately 70 metres south of Victoria Street. The site is rectangular in shape, with a frontage of 12.5 metres, a depth of 36.7 metres and an area of 463.5 square metres. The site contains a two storey building. The ground floor is used for a restaurant and the first floor is used for a medical centre (dentistry practice). There is an open area at the rear of the building that is used for used for car parking. Nearby land is used for residential purposes except for the abutting land that is used for a hotel and land opposite that is use for an industrial activity. Tribunal Inspection I inspected the site and its environs on 18 November 2014. The parties did not accompany the inspection. REASONS1 What is this proceeding about? Planning permit MPS/2011/208 was granted by Moreland City Council in November 2011. It permits the review site to be used for a restaurant and associated buildings and works. It also allows a reduction of car parking requirements and a waiver of bicycle requirements. The applicant has replaced a front window in the premises with a partially solid frame comprising a solid wall made from vertical timber rulers and a timber framed servery above. The new front façade does not form part of the permit. Council has required the applicant to lodge an application to amend the permit to include the as built front facade. Condition 3 of Permit MPS/2011/208 allows the restaurant to operate to 6.00pm, seven days per week. The applicant also requests this condition be amended to allow the restaurant to operate to 12.00PM midnight, seven days each week. In April 2014, Council refused to amend permit MPS/2011/208. It says the new facade fails to respond to the Daly Street heritage precinct, in particular the contributory elements of the Pearson Street commercial centre. Hence, it would detrimentally affect the significance of the site and the heritage place. With regard to the increased trading hours, Council says the applicant has failed to demonstrate it would not cause unreasonable car parking impacts on the surrounding road network. The permit applicant contests Council’s grounds of refusal. She says the new façade, particularly the servery is integral to the operation of the business and it does not affect the heritage place. She says the extended hours would benefit the local community and car parking can be accommodated on local streets. The key issues that I must determine in this matter are: Would the proposed servery detrimentally affect the heritage significance of the site? Would the extended hours be acceptable, with particular regard to car parking on the road network? I must decide whether a permit should be amended and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Moreland Planning Scheme, I am satisfied that the front façade adversely affects the significance of the heritage place. I am unable to be satisfied that the extension of business hours would not adversely impact the amenity of local residents, particularly with regard to on street car parking. Hence, I have decided to affirm the decision of the responsible authority and direct that permit MPS/2011/208 not be amended. My reasons follow. review of key issues Would the proposed servery detrimentally affect the heritage significance of the site? The site is included in the Heritage Overlay Schedule 56: Daly Street precinct, West Brunswick. The heritage place includes residential properties generally in Victoria Street, Hunter Street and Albert Street between Pearson Street and Daly Street. The heritage place includes mainly Victorian and Edwardian dwellings. It also specifically notes several individual buildings including the Grandview Hotel (adjacent to the review site), a primary school and a public hall. It also notes the commercial area in Pearson Street; being 40-70 Pearson Street, and the parties agreed this includes the review site. The statement of significance says the heritage place is significant as it contains many elements of a small community. The suburb’s development in the 1900-1910 period supported the subsequent provision of community facilities. The area’s association with Hoffmans Brickworks is of local historical interest. The Statement goes on to say: The Daly Street precinct is of local significance as a relatively intact era of Victorian and Edwardian era housing including a number of individual buildings of particular interest, which as a whole reflects the two major periods of development in West Brunswick. Council says the review site is a contributory building to the heritage place. It says the works have altered the window height and articulation of the original shopfront to an extent that it no longer matches the retained shopfront. Council considers the changes to shopfronts are not appropriate, unless the works return the frontage to an earlier known appearance. Council’s heritage advice accepts the works have retained the historic configuration of a recessed entry and the plinth to the windows. No other historic material has been removed other than the glazing. The works are probably reversible. Ms Wilson says serving beverages is the primary part of her business. From time to time, the entry to the café becomes crowded as customers wait to receive their order for a take away beverage. Some customers have to wait outside the restaurant in Pearson Street. She says crowding around the entry or in Pearson Street is unsatisfactory for staff when serving hot food or beverages as the floor is uneven, and some customers dislike having to wait outside. She says the café/restaurant business is highly competitive and if the servery is closed and the entry becomes crowded, some customers may use other cafes. She says most of her customers are people who live or work in the local area, and the café has become a meeting place for the local community. The appearance of the front façade is visually notable and is supported by many people in the community2. I am guided by the planning policy framework in the scheme. With regard to heritage places the scheme encourages: Respect heritage places while building for the future (clause 11.04-4); New development should respect, but not simply copy, historic precedents and create a worthy legacy for future generations (clause 15.01); Ensure the conservation of places of heritage significance by: Encourage appropriate development that respects places with identified heritage values and creates a worthy legacy for future generations. Retain those elements that contribute to the importance of the heritage place. Encourage the conservation and restoration of contributory elements. Ensure an appropriate setting and context for heritage places is maintained or enhanced. Support adaptive reuse of heritage buildings whose use has become redundant. (clause 15.03) Clause 22.13 addresses development in heritage places. It encourages heritage places to be conserved and enhanced, partly by preventing the removal of heritage materials. Relevant policy guidance includes: Assess an application for buildings and works based on the significance or contributory fabric of the heritage place rather than any non-contributory fabric that may exist within the heritage place. Consider the statement of significance for a heritage place and any relevant heritage precinct when assessing an application for development of a heritage place. Encourage new buildings and alterations and additions that avoid alterations to the contributory or significant buildings (including new windows or door openings). Encourage new buildings and alterations and additions that adopt innovative and contemporary design that makes a positive contribution to the heritage place. Encourage new buildings and alterations and additions that do not closely replicate historic styles and detailing. Encourage the conservation of existing historic verandas and shopfronts (including retrofitted types of later style and origin where this contributes to the significance of the heritage place). Ensure alterations to existing contributory or non-contributory verandas and shopfronts are consistent with the character of the heritage place. Accurate reconstruction of missing parts is encouraged where evidence exists. Where no evidence exists about the earlier state, a simplified, sympathetic form is preferred. It is policy to encourage external materials, colours and finishes for heritage buildings that are consistent with and complement the style and period of the heritage place. The scheme requires that a comprehensive approach be applied to decisions3. Other planning policies relevant to this review include: Create healthy and active neighbourhoods and maintain Melbourne’s identity as one of the world’s most liveable cities by amongst other things creating 20 minute neighbourhoods that are safe and sustainable (clause 11.04-4) Promote design excellence (clause 11.04-4) that contributes to urban character and a sense of place (clause 15.01). Provide small scale shopping opportunities that meet the needs of local residents and workers in convenient locations (clause 17.01). Encourage Moreland to become an environmentally sustainable and liveable city, where people can shop, work and socialise locally clause 21.04). Facilitate a diversity of industries and businesses to ensure an increasing number and range of jobs are available locally (clause 21.05). Facilitate non-residential uses that serve the needs of the local community (clause 22.01). I accept Ms Wilson’s submissions that the restaurant has revived the ground floor of a heritage building that was unused and in poor condition for an extended period. I also accept her argument that the restaurant has become a meeting place for people living and working in the Brunswick West neighbourhood. I also accept her propositions that the servery assists the operation of her business. I also consider the vertical arrangement and colours of the timber rulers below the servery, and the servery itself, are an interesting and attractive design. An attractive design does not make buildings and works acceptable in a heritage place. The determinative matter is whether the positive attributes of the front façade outweigh the removal of a front window of a contributory building, which heritage policy says should be retained and restored. Ms Wilson says the building’s frontage has been extensively modified. While there are modifications, I give these little weight. I agree with Council that policy clearly says that the presence of non-heritage features such as the entry to the dentist premises, the altered windows and the inserted air conditioner units in the windows above should not be used as precedents to support further demolition or removal of heritage fabric. I agree with Council that the new frontage is attractive, innovative and contemporary. I am not persuaded it is appropriate on a contributory building in this heritage place. This is a substantially intact contributory building in a heritage place. In my view the threshold for new works is set reasonably high. The onus is with the applicant to demonstrate that while they are distinguishable from the original fabric they are to be respectful, secondary and do not dominate or detract from the heritage fabric. Being attractive and innovative is insufficient to achieve this benchmark. In my view the appearance and form of the servery and the timber rulers below is not respectful of the heritage shopfronts. It is not in keeping with the appearance of the remaining shopfronts. I find the vertical rulers and the prominent, heavy timber framing around the servery to have no affinity or connection with the materials, colours or dimensions of the heritage place. They have none of the slender and muted forms of the glazed windows with their coloured glazing above. The thick timber framing around the servery creates strong vertical and horizontal lines that are not visible elsewhere in the frontage. The timber rulers below the servery create a solid, wooden frontage that is very different to the other glazed windows. No reference was made by the parties to any timber frontages in the building or other contributory public or commercial buildings that provide a heritage context for such materials or solid facade. I agree with Council that the proposed servery, its timber frame and the vertical timber rulers below are inappropriate on a contributory heritage building in this heritage place. Ms Wilson says the servery is integral to the business, and its removal might have adverse commercial consequences. She says I should approve it even if it is inconsistent with the heritage fabric, so the business continues to be a local meeting place and contributes to the local economy. She says the positive economic and social outcomes outweigh any adverse impacts on a heritage building of modest significance. The responsible authority and on review the Tribunal, is required to balance the various dimensions of this and other planning matters4. In this case I am not persuaded my decision not to approve the existing façade would necessarily be harmful to the business for the following reasons. Firstly, there may be multiple ways to redesign the shop front, including retaining the vertical timbers rulers. There may also be ways to design a servery comprising framing materials that are muted and respectful and that reference the heritage place and its contributory buildings, rather than the as built façade which is heavy, imposing and inappropriate. I think the applicant would benefit from the advice of a heritage consultant. Secondly, there may be alternate solutions to the operational problems that have given rise to the servery. These may include providing more internal space near the doorway/serving area, realigning the floor to remove the slope, reviewing the present preparation and serving arrangements or delivering the beverages to the outdoor area. Finally, I have no basis to conclude that the removal of the servery would so adversely affect the business that it would inevitably close, and hence the community would lose the social and economic benefits it provides. On balance I am satisfied that further changes to the frontage of the shop, including the possible closure of the servery would be consistent with the heritage objectives of the scheme and this is not outweighed by adverse social or economic outcomes such as an inevitable loss of the business and a popular meeting place. Would the extended hours be acceptable, with particular regard to car parking on the road network? The proposed amendment to Condition 3 does not increase the number of patrons and hence change the number of car parking spaces to be provided. No planning permission is therefore required pursuant to clause 52.06. However car parking is a relevant matter as follows: The decision guidelines of the General Residential Zone that require proposals for section 2 uses to consider as appropriate local policy and the provision of car and bicycle parking and associated accessways, and Residential amenity is to be protected from significant changes to traffic conditions in local streets including an increase in car parking demand (clause 22.01). The restaurant has seating for approximately 38 patrons inside and 36 patrons at the rear. There is seating for 12 patrons on the Pearson Street footpath, however this seating does not trigger any car parking requirement. A restaurant with seating for 74 patrons should provide 29 spaces. A paved area at the rear of the site provides informal parking for this premises and the dentistry clinic above. On my site visit, three vehicles occupied this area. I understand all were associated with the dental practice. This area could accommodate approximately five vehicles and an aisle, shared between the two occupants. Sixteen off street parking spaces are provided for the exclusive use of the adjoining Hotel. Permit MPS/2011/208 includes approval to reduce the provision of car parking. Council says it when it granted the permit, it supported the waiver of parking on the basis that the restaurant would operate during the daytime and adequate on-street parking would be available as many residents would drive to other places in the daytime. It thought it would attract mainly local people who would be likely to walk or cycle. Council says its assessment is correct in that while on-street parking is heavily used in the daytime, there are on-street spaces available within convenient proximity to the restaurant. My site visit indicates this assessment has been generally correct, as many spaces were available in the local streets when I visited the site. With regard to the proposed amendment, Council says a higher proportion of patrons attending in the evening would be likely to drive and hence require on-street parking. This would particularly be the case if the restaurant included exhibitions. On-street parking would be more difficult to find as local residents would have returned home and want to use the on-street parking. Council says the application for extended hours should be accompanied by a professional parking study that properly assesses the provision of parking in the evening and weekends. Local residents say that there is very limited car parking available in the evenings and weekends. They propose that Pearson Street (between Victoria Street and Hunter Street) and Hunter Street (between the two laneways the eastern end of the street) be limited to permit only parking5. This suggestion would restrict the on-street parking most proximate to the review site. Ms Wilson proposes the area at the rear of the premises be used for parking. She also says on-street parking is available on Victoria Street, east of Pearson Street, adjacent to a large park. She says a small business cannot afford an independent parking assessment. I have very limited information to determine whether a problem exists, and whether the extended trading hours would make an existing problem worse of create a new problem. The views of the Council and the written submission from the residents suggest to me there is a problem, and this is not a matter to be lightly disregarded. I think customers attending a restaurant, particularly showing an exhibition, would be likely to have a higher rate of car use than the daytime customers. People will be likely to travel further and do so by car. They would be likely to use a car at night I agree with Council that the onus is on the agent of change, the permit applicant, to demonstrate the proposal would not impose unacceptable outcomes on an established residential area. I think a limited parking study is required to provide Council and on review the Tribunal, with a proper assessment of the capacity of the on-street car parking that is proximate to the restaurant. This would enable a decision to be made based on factual information rather than general assertions from the parties. The location of the likely car parking spaces would also inform an assessment of possible amenity impacts that might arise. If the restaurant operates at night and depends on parking in the nearby streets there are likely to be increased noise as patrons leave. I note there is no proposal before me from Ms Wilson regarding the management of patrons to minimise possible offsite amenity impacts. On the information before me, I am not satisfied the proposed extended hours would not adversely affect the amenity of nearby residential areas. I am not prepared to direct that Condition 3 of Permit MPS/2011/208 be amended. Do any other matters warrant rejection of the proposal? The parties confirmed that Permit MPS/2011/208 does not include the replacement of the original glazing with the existing facade. Council has issued enforcement proceedings that await the outcome of this review. The usual approach where buildings and works have been completed without planning approval is for the responsible authority and the Tribunal on review to give no weight to the fact that the works have been completed without planning permission. The proper approach is to consider the application afresh, as though the works had not been completed. The Tribunal has the benefit of being able to see the works in place. However, the permit applicant is not to be given any benefit, nor be penalised for having completed the works. I must also disregard the possible consequences of my decision, including possible further works and expenses. I have adopted the above approach in reaching my decision in this matter, and I have been guided by the policies in the planning scheme and the submissions from the parties. Conclusion For the reasons explained above, the decision of the Responsible Authority is affirmed. Permit MPS/2011/208 is not amended. G Rundell Member
Posted on: Fri, 21 Nov 2014 06:23:32 +0000