Australia, Sept. 19 -- Victorian Civil and Administrative Tribunal issued text of the following judgement on Sept. 17:

1. On land at 40 Alma Road, St Kilda ('review site') is a large Italianate era mansion and a set of flats dating from the 1960s. The owner of the review site, Seranin Pty Ltd, ('applicant') is seeking to use the buildings for a rooming house to accommodate up to 35 residents across 22 rooms, five of which would be self-contained and the other 17 would rely on the use of three communal kitchens.

2. A resident manager would live in one of the self-contained rooms. The rooming house would use 11 existing on-site car parking spaces for resident and manager parking, and convert three other on-site car parking spaces to establish a communal open space in the centre of the site. Other existing landscaped areas that provide some communal open space to the rear of the site will also be retained.

3. Port Phillip City Council ('council') refused to grant a planning permit for the proposal as put to it, but supports the proposal, as based on the plans substituted to form the application plans at the start of the hearing. This is provided some conditions are imposed on the permit, including confirmation that two of the non-self-contained rooms include further notation on plans to confirm they do not include kitchen facilities.

4. A number of residents ('objector parties') near the review site oppose the proposal. They question if the proposal meets the definition of a rooming house, whether the proposal includes sufficient facilities for residents and also submit that the proposal may result in unreasonable off-site amenity impacts through changes in traffic, noise and general amenity.

What are the permissions sought that are under review, and what is this scope of review?

5. It is agreed between parties that the proposal is to change the use of the existing buildings from dwellings to a rooming house as defined by the Port Phillip Planning Scheme ('planning scheme'). However, one of the objector parties questions if sufficient rooms are not self-contained and therefore whether the use complies with the definition of a rooming house. I address this question below. I do so noting that I questioned with the parties at the start of the hearing if they agreed to me determining this matter to any extent that it may be considered a question of law, noting I am not a legal member of the Tribunal. The parties advised they were satisfied with me considering and determining issues arising that may be considered questions of law.

6 The parties also have differing views as to whether the buildings and works to be undertaken on the application plans constitute buildings and works as part of the change of use, or are exempt from the need for a planning permit based on the general exemption provisions set out in clause 62.02 of the planning scheme. I also address this in my consideration of issues below.

7 There is no dispute between parties that the proposed buildings and works trigger a planning permit under clause 43.01 of the planning scheme, being the Heritage overlay - Schedule 6 ('HO6') that applies to the land. There is also no dispute that exemption provisions of clause 43.01 mean the proposed building and works triggered by HO6 are not subject to notice or review by third parties. As such the objector parties to the proceeding do not have rights to make submissions about the proposed heritage buildings and works being assessed under clause 43.01. The matters do need to be considered by the Tribunal.

8 The change in use requires less car parking than is already provided for on the site. There is therefore no permit triggered under clause 52.06 (car parking) in the planning scheme. Any consideration about the layout of the car parking under clause 52.06-8 is limited to the role of the Tribunal, standing in the shoes of the responsible authority, with the car parking plan being to the satisfaction of the responsible authority. No permit is triggered under clause 52.06 that enables participation by the objector parties.

9. Objector parties did make submissions about general traffic safety issues in the context of clause 65.01 of the planning scheme.

10. All parties then made some submission about whether the proposal as a whole achieves net community benefit, having regard to policy, in context of clause 71.02-3 of the planning scheme. I address the issues of net community benefit below in context of the scope of review by parties before me.

What are the key issues?

11. From the submissions and evidence made, along with my own review of the planning scheme, I find the relevant issues I need to determine are:

* Can the proposal be defined as a rooming house? That is, what is the proposed use?

What are the relevant permit triggers for the proposed rooming house?

* Is the use and development acceptable having regard to these triggers, including:

* Are there any unreasonable off-site amenity impacts from the proposal?

* Does the proposal provide reasonable on-site amenity for residents?

* Are the proposed buildings and works acceptable when tested against the heritage overlay applying to the land?

* Does the proposal as a whole achieve net community benefit?

12. I address each of these in turn below.

*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2024/876.html)

Disclaimer: Curated by HT Syndication.