Council's submission to State Government

Dear Presiding Member

Section 131 Referral Response – DA 110/V025/23 – 5 Maturin Road, Glenelg

Thank you for the opportunity to provide comments on the development application made by the Minister for Health and Wellbeing for a facility at 5 Maturin Road, Glenelg to provide therapeutic services for recovery from alcohol and drug dependency.

From the outset, the Council acknowledges that residential recovery programs, such as the New ROADS program offered by Uniting Communities, provide an essential social service to the many in need of such support. Council also acknowledges the State Government’s role in funding these programs aimed at the rehabilitation of community members recovering from alcohol and drug dependency. The City of Holdfast Bay too has a proud history of assisting vulnerable people into Residential Supported Facilities in suitable locations within the Council area, established through due process involving the assessment of development applications that have been informed by community consultation and scrutiny by Council’s Assessment Panel. So, whilst this Council has demonstrated an acceptance to having facilities such as the one proposed within the City of Holdfast Bay, there is strong objection to the chosen location and the assessment pathway adopted for this specific proposal, which has shown complete disregard for the very community to which this facility seeks to become part of.

There was great anticipation on the part of Council and an anxious community that the belated lodgement of a development application for the change of land use would finally present an opportunity for meaningful public engagement, and for Uniting Communities to allay concerns around how the change of land use would affect the existing residential amenity of the immediate locality. It was therefore extremely disappointing to learn of the Minister’s determination that the proposal had been assigned Crown Development status pursuant to Section 131 of the Planning, Development and Infrastructure Act 2016, effectively leaving only the Council to formally represent the community’s interests in this matter.

Furthermore, the documentation provided in support of the development application makes no specific assessment of the proposal’s impact on the nearby early learning centre and primary school, with no apparent regard for either the social or practical interface challenges of co-locating the rehabilitation facility in proximity to such sensitive land uses. The proposal provides a number of statements on how risks associated with the change of land use will be mitigated and managed, without detailing what these foreseen risks might be. It is imperative that if these risks are known, that they are disclosed so that an assessment can be undertaken as to whether the mitigating actions are sufficient and effective to manage the associated risks. The commitment made by the proponent in the development application advising that the facility will be staffed at all times to respond immediately to any “…unexpected events…” provides little reassurance, and in fact presents more questions around what these unexpected events might involve. It is imperative that these anticipated incidents are described, as Uniting Communities must appreciate that if unexpected events requiring an immediate response are anticipated, then the neighbouring community is entitled to understand what preparation and response is required on its part.

Notwithstanding the assurances provided by Uniting Communities in the development application, including the signing of behavioural agreements between it and participants of its rehabilitation program, any land use approval sits with the land, not the individual, meaning that personal pledges relating to behaviour are not binding on the transient participants in the program. The application documentation states that Uniting Communities has identified “…a series of potential risks…” associated with the proposal and that “… preventative and control measures and responses to incidents have been developed by Uniting Communities…” where the supervision of participants is considered as a means “…to adequately manage any adverse interface impacts that may otherwise arise.” It is alarming to be advised that there are known risks associated with this development, and for the community not to be provided with an understanding of these interface impacts and who is deemed to be at risk from these ‘unexpected events’.

There are insufficient safeguards and assurances to provide comfort to Council and the community that the acknowledged ‘unexpected events’ and ‘potential risks’ associated with the proposal will be appropriately managed and mitigated. The City of Holdfast Bay therefore objects to the proposal on the basis that there is simply not enough information to ensure that the social and practical interface issues will be effectively managed, and that there are no enforceable safeguards in the planning system to ensure sufficient oversight of resident behaviour.

Another important point worth raising is that by declaring this proposal as ‘essential infrastructure’, and thereby affording it Crown Development status, a dangerous precedent has been set for future development. It is essential that development applications that would ordinarily be subject to public engagement and scrutiny are not derailed from their conventional and expected assessment pathway on the basis that it is politically convenient to do so. This opens the door for other inappropriate proposals to follow, and for the voice of the community to be further diluted when it comes to the types of development that impact it most.

As the following assessment by Council’s planning staff articulates, the development assessment system is specifically designed to discourage development where the impacts cannot be quantified in an area. There are specific zones set aside to accommodate uses where the impact on adjoining properties cannot be managed by way of either design or the imposition of enforceable conditions. Whilst the adaptation of a heritage building to house a rehabilitation facility is a positive aspect of the proposal, the participants in the program need to be accommodated in a setting which is conducive to their recovery, not one which is so sensitive that it requires a number of mitigating measures such as ‘behavioural agreements’, curfews, and emergency response procedures to ensure that the land use can sit comfortably and safely within an established and sensitive urban environment.

Planning Assessment

The Proposal

The proposed development seeks to change the use of an existing Local Heritage Place located at 5 Maturin Road, Glenelg to a facility providing accommodation and therapeutic services for up to twelve people recovering from alcohol and drug dependency. There is no building or structural work associated with the development, with reliance placed on the existing onsite car park to service the premises. The site of the development is located within the Established Neighbourhood Zone under the Planning and Design Code.

Locality

The immediate locality is characterised by established, well-maintained buildings and gardens, mainly of large, single-storey scale, with a strong built heritage representation. Maturin Road is a compact thoroughfare with open front yards adjacent narrow footpaths. The amenity of the locality and Maturin Road, in particular, can be described as very high, with the sensitivity of land uses also being very high by virtue of the prevalence of residential dwellings and the presence of an early learning centre and primary school in close proximity to the subject land. The term ‘tightly held’ is most apt to describe Maturin Road and its immediate locality.

Assessment

There are a select number of provisions in the Planning and Design Code that are relevant to the assessment of this proposal.

Established Neighbourhood Zone

PO 1.1 Predominantly residential development with complementary non-residential activities compatible with the established development pattern of the neighbourhood.

PO 1.4 Non-residential development located and designed to improve community accessibility to services, primarily in the form of

b) community services such as educational facilities, community centres, places of worship, child care facilities and other health and welfare services

c) services and facilities ancillary to the function or operation of supported accommodation or retirement facilities

Architecturally, the proposal maintains the status quo, with the adaptation of the Local Heritage listed building not undergoing any substantial change to its external form or appearance. From this point of view, the development has no direct visual impact on the established streetscape. The adaptation of the building’s internal configuration to cater for staff and participants is subtle and non-detrimental to the original fabric of the heritage building. As such, the proposed land use does not interfere with the established pattern of the built form in the neighbourhood and is therefore consistent with the intent of Performance Outcome 1.1.

Built form attributes aside, the assessment of the change of land use is based on the extent to which the development is desired in the Established Neighbourhood Zone (the Zone). There is no indication found in relevant sections of the Planning and Design Code that a supported facility of this type is specifically desired in the Zone. Performance Outcome 1.4 (b) and (c) seeks an altogether different type of land use, being one which is complementary with existing residential activities.

From a land use perspective, the intended use is not residential, notwithstanding that it makes provision for up to twelve persons to be accommodated overnight in the facility (albeit not ancillary accommodation as the Zone seeks). Whilst the Zone envisages secondary services it does not envisage the primary service itself, which is specifically catered for in alternative and more appropriate Zones.

PO 1.5 Expansion of existing community services such as educational facilities, community facilities and child care facilities in a manner which complements the scale of development envisaged by the desired outcome for the neighbourhood.

Performance Outcome 1.5 does not mention the proposed use in the list of land uses that are envisaged or desirable in the Zone. In this regard, the assessment of the proposed use becomes reliant on whether there is sufficient merit with the development that entitles it to an exceptional place within the Zone. The land use is not an expansion of the aged care facility on the broader site either, but rather an altogether new use, not akin to the ‘community services’ sought by Performance Outcome 1.5.

Interface Between Land Uses

DO 1 Development is located and designed to mitigate adverse effects on or from neighbouring and proximate land uses.

The documentation provided in support of the development application contends that outdoor activities for participants in the program are likely to be infrequent and between the hours of 10.00am and 2.30pm. It is noted that this time period is consistent with the hours that students from the early learning centre and primary school are least likely to be active along Maturin Road. It is reasonable to assume that this is a conscious decision by the proponent designed to minimise the likelihood of interaction between the respective groups, and manage any adverse interface impacts that may arise, which is effectively what Desired Outcome 1 seeks.

The development application goes further by suggesting that any off-site visits or outdoor activities that require participants to enter and exit the facility will be supervised to manage any adverse interactions with the broader community. This is an important and necessary commitment by the proponent, but not one that can be regulated by the planning system. Whilst the development system can regulate land use, it has no capacity to regulate personal freedom. The ‘behavioural agreements’ and activity timetables between the service provider and participants in the program have no resonance in the planning system, and are therefore an unreliable measure for the purpose of Desired Outcome 1, which seeks more tangible measures to mitigate against a proposal’s impact (whether it be social, environmental or visual) on proximate land uses. If the proposal were to proceed, it is recommended that a structured agreement be entered into between the Minister for Planning (as the designated authority) and the landowner in the form of a Land Management Agreement (LMA) pursuant to section 193 of the Planning, Development and Infrastructure Act 2016 to ensure the adequate management of risks.

On any reasonable measure, however, a planned development of this type would not be located in proximity to an early learning centre and primary school. Notwithstanding, the adaptation of heritage buildings for ongoing economic use is encouraged throughout the Planning and Design Code, so the intent of the proposal is not without merit. However, the locational challenges associated with this proposal are compounded by the limitations of effectively adapting a local heritage-listed building built in the 19^th Century, which is ill-designed for its intended purpose as a facility for the provision of 21st-century therapeutic residential care. The proposal appears convenient rather than well-conceived because the building which the land use seeks to occupy is somewhat landlocked, constrained by structures within its own site, and by its proximity to Maturin Road.

In this regard, it would appear difficult to offer a discreet service from this location, let alone incorporate an adequate curtilage for outdoor activities. The use will effectively be forced to directly interact with neighbouring land uses, with the curfews suggested being difficult to enforce. The idea of participants in the program interacting with the established community is not problematic in itself, and indeed an essential part of such reassimilation programs. However, the proponent acknowledges in the supporting documentation that unexpected events will be managed through operational processes including regular drug testing and breathalysing. This is not the level of reassurance that the Planning and Design Code is seeking when it asks that development mitigates against adverse effects (behavioural or otherwise) spilling onto neighbouring areas. The Planning and Design Code seeks more robust safeguards, which can only come from a purpose-built facility in an appropriate location.

Desired Outcome 1 goes further than simply limiting the assessment to the impacts of the development on neighbouring land uses however, it also seeks development that is located to mitigate adverse effects from proximate land uses. In this regard, the assessment must also consider whether the retail offerings located in proximity along Jetty Road at Glenelg serve to heighten rather than mitigate any adverse impacts on residents of the facility.

PO 1.2 Development adjacent to a site containing a sensitive receiver (or lawfully approved sensitive receiver) or zone primarily intended to accommodate sensitive receivers is designed to minimise adverse impacts.

There is no structural or building work proposed as part of the change of land use. In this regard, the premises are not fit for purpose, but rather involve retrofitting a heritage building to accommodate twelve drug and alcohol dependant persons. There is inadequate breakout space for meaningful outdoor activity, the dormitory-like floorplan is not conducive to extended periods spent indoors, as the proposal suggests. This is exacerbated by the fact that activities within the confined outdoor space will be limited to a specific timeframe. These limitations associated with the building and site are not helpful to minimising the adverse impacts (or ‘unexpected events’ as described by the proponent) on the more sensitive uses along Maturin Road, namely the early learning centre and primary school. Performance Outcome 1.2 can therefore not be satisfied in that there is no design solution that will provide practical outdoor space and a discreet setting for the facility.

Historic Area Overlay

PO 1.1 All development is undertaken having consideration to the historic streetscapes and built form as expressed in the Historic Area Statement.

Local Heritage Place Overlay

DO 1 Development maintains the heritage and cultural values of Local Heritage Places through conservation, ongoing use and adaptive reuse.

PO 1.7 Development of a Local Heritage Place retains features contributing to its heritage value.

PO 2.2 Adaptive reuse and revitalisation of Local Heritage Places to support their retention in a manner that respects and references the original use of the Local Heritage Place.

The provisions relating to the Local Heritage and Historic Overlays are dealt with in this single response. The proposal to adapt an existing Local Heritage building, whilst maintaining and enhancing the architectural features in Architect Thomas English’s original design, is a commendable aspect of this development, particularly as it remains the oldest remaining building of its type, having been constructed in 1899. The sensitive conservation work and light-touch approach to the internal refurbishments contribute to the retention of the building’s original features, maintaining an understanding of the building’s original form.

Transport, Access and Parking – General Development Policies

PO 5.1 Sufficient on-site vehicle parking and specifically marked accessible car parking places are provided to meet the needs of the development or land use having regard to factors that may support a reduced on-site rate such as:

d) the adaptive reuse of a State or Local Heritage Place.

The car park associated with the building is longstanding and will not be significantly altered as part of this application. The total number of car parking spaces is adequate for the number of occupants (staff and residents) in the building. However, the arrangement of the bays is non-compliant with current-day standards, as vehicles are required to exit by reversing onto the road or undertaking a multi-stage manoeuvre. However, given that the carpark serves a Local Heritage Place, it is reasonable to allow dispensation from the relevant standards where there is an adaptive reuse of the building. Given the limited number of vehicle movements anticipated to and from the facility each day, the non-compliant car parking spaces are unlikely to cause interference with general traffic along Maturin Road, particularly as this is a longstanding arrangement, not exacerbated by the development per se.

Assessment Summary

On the balance of the information provided as part of the development application and the assessment undertaken against the relevant provisions under the Planning and Design Code, there are insufficient grounds to grant planning consent to the proposal. The proposal does not adequately satisfy the relevant provisions for non-residential development in the Established Neighbourhood Zone, and particularly the provisions that relate to development undertaken at the interface with proximate land uses. Specifically, whilst the development does provide for an adaptive reuse of a Local Heritage Place to ensure its ongoing economic use, the building itself is not fit for purpose, requiring a number of mitigating measures to ensure it can sit comfortably and safely within its residential setting.

Whilst it is commendable that the proponent has demonstrated a sense of awareness regarding the proposal’s location relative to sensitive, nearby land uses, the measures that have been adopted to mitigate the anticipated impacts at the interface are not enforceable through the planning system. The heavy reliance on personal trust, self-control, and supervision to manage behaviour are unreliable in an environment where the relevant provisions of the Planning and Design Code seek tangible measures in the form of either design solutions or locational appropriateness, neither of which are offered by this proposal.

Despite Council’s objection, if the State Commission Assessment Panel is of a mind to grant approval to the proposal, it is recommended that a binding agreement is executed between the landowner and the Minister for Planning (as the designated authority) in the form of a Land Management Agreement (LMA) pursuant to section 193 of the Planning, Development and Infrastructure Act 2016 to ensure the adequate management of risks. The LMA should include sufficient safeguards and conditions relating to the active supervision of participants, and the provision for on-site outdoor respite for participants at times that are cognisant of established movement patters from the more sensitive proximate land uses.

Thank you again for the invitation for Council to make representation on this matter on the community’s behalf. I would welcome the opportunity to expand on Council’s written submission and make a personal representation to the State Commission Assessment Panel on the community’s behalf should the opportunity present itself.

Yours sincerely

Amanda Wilson

MAYOR