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[2001] VCAT 1624
mixed. Application 2000/76945 was allowed by consent, with an order limiting patron accommodation to the seat number determined in the seating review. Application 2001/12273 was allowed in part and Permit...
The Tribunal examined the restaurant's parking evidence and decided that 150 seats, rather than the Council's 110-person limit, was reasonable at that time. It used a parking rate of 0.5 spaces per seat and counted some nearby street parking, but did not assume all parking near undeveloped land would remain available as other uses began operating. Separately, it refused the proposed roof-level illuminated sign because it did not fit the building or the area's existing sign pattern. The Council's enforcement application was resolved by agreement and was linked to the 150-seat determination.
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The Victorian Civil and Administrative Tribunal (Planning List) heard three related applications concerning a La Porchetta restaurant at 1-11 The Link, Mill Park. The hearing was on 19 July 2001, before Senior Member Jacqueline Preuss and Member Margaret Baird. The Tribunal made its orders on 31 July 2001.
1 cited instrument linked from this judgment.
The first proceeding, Application 2000/76945, was brought by Whittlesea Shire Council under section 114 of the Planning and Environment Act 1987. The Council sought an enforcement order concerning the restaurant's compliance with an earlier permit condition limiting it to 90 seats. That limit came from Permit 702992, issued in July 1996 ([1], [7]).
The second proceeding, Application 2001/12273, concerned a later permit. Permit 706285, issued by the Council on 19 December 2000, allowed an increase in seating but included a condition limiting the number of patrons to 110 at any one time without the Council's written approval ([2]). The applicant sought review of that condition. The Tribunal records Aberlink Pty Ltd as applicant in its reasons, while the application heading identifies Matters of Identity Pty Ltd. The text also says Matters of Identity acted for Aberlink in the third matter ([3]).
The third proceeding, Application 2001/12302, challenged the Council's refusal of a permit for an illuminated sky sign above the restaurant entrance. The sign was proposed to measure 1.2 by 2.4 metres, sit about 2.5 metres above the roof line, and display the restaurant's name and a Coca-Cola logo ([12]). The Council's refusal referred to its Outdoor Advertising Guidelines and visual amenity ([3]).
The Tribunal treated the matters as connected but did not decide all of them on their merits. The parties agreed that the enforcement order should require compliance with the seat number determined in the review of Permit 706285. The Tribunal expressly recorded that it had not considered the substance of the enforcement application ([5]). It therefore allowed that application by consent, with an order linked to the outcome of the seating review ([A]).
For the seating review, the Tribunal focused on two questions: what parking rate should be applied, and how much local on-street parking could fairly be counted ([23]). The Planning Scheme's stated parking rate for a restaurant was 0.6 spaces per seat. A 170-seat restaurant would therefore require 102 spaces, while 110 seats would require 66 spaces ([16]). The scheme allowed a reduction or waiver, with relevant considerations including empirical demand, local parking availability, public transport, sharing between uses, local traffic management and amenity ([17]).
The Tribunal accepted the parties' common ground that an empirical assessment could justify a rate below 0.6 spaces per seat. It also accepted that public transport would not materially affect the assessment, that the restaurant's 41 on-site spaces (or 42 shown as available) were insufficient for either proposed increased seating level, and that Friday and Saturday evenings and Sundays were the busiest periods ([23]).
The traffic evidence did not point to a single answer. Mr Carr, for the restaurant, proposed 170 patrons; Mr Basic, for the Council, proposed 110; and a Turnbull Fenner report relied on a figure of 135 ([29], [33]). The Tribunal was cautious about relying on a rate of 0.43 spaces per patron because there was only one survey set, conducted on a Friday evening and Sunday in August 2000, and no Saturday evening survey ([26], [35]). It also did not accept an alternative survey-based figure derived from a night when the number of restaurant patrons had not been counted ([30]).
A further consideration was that the restaurant included takeaway service and people might wait in the premises for a table. The Tribunal accepted the Council's submission that customers were likely to queue rather than go elsewhere, given the limited competition from similar premises in the immediate area. It also considered that busy periods extended across Friday, Saturday and Sunday ([35]). It therefore adopted 0.5 spaces per seat, acknowledging that the rate might be conservative ([36]).
As to the supply of parking, the experts agreed that 41 on-site spaces and 23 on-street spaces abutting the restaurant could reasonably be counted, giving a base of 64 spaces ([31], [34], [37]). The Tribunal declined to rely on possible roadworks or future angle parking because there was no certainty that those arrangements would occur, and it confined its assessment to lawful parking arrangements ([37]).
The Tribunal also considered parking near future development sites. It accepted the Council's concern that the restaurant should not be treated as having access to all nearby street parking when the motel, library and other uses became operational. It considered that nearby businesses might themselves generate overflow parking demand, even if they had on-site spaces ([38]). The Tribunal nevertheless considered that some spaces near the motel and in the service road could be shared. It allowed 11 spaces in the locality in addition to the 64-space base ([39]-[40]). Applying the rate of 0.5 spaces per seat, it concluded that 150 seats was reasonable “at this time” ([40]).
The sky-sign review had a different focus. Clause 52.05 required consideration of effects on amenity and the built environment, the need for identification, the sign pattern in the area, the sign's size and impact, and effects on public ways ([20]). The Tribunal gave limited, if any, weight to the Council's Outdoor Advertising Guidelines, which were not incorporated into the Planning Scheme ([43], [48]). It accepted that the sign could help identify the restaurant and might not create a safety problem, but it was not satisfied that the sign met the scheme's decision guidelines ([48]).
The key design distinction was between a freestanding pole sign and a sky sign attached to a building. The Tribunal found that the proposed sign would not complement the restaurant building or make a positive contribution to local amenity. It also noted that the existing local advertising pattern included pole signs but no sky signs ([46], [48]). It agreed that a different form of sign might be acceptable, but the proposed sky sign was not ([49]).
This decision does not set out a general change in planning law. It applies the provisions of the Whittlesea Planning Scheme and the Planning and Environment Act 1987 to the evidence before the Tribunal. The judgment identifies the ordinary restaurant parking rate as 0.6 spaces per seat under Clause 52.06 and explains that the scheme allowed a reduction or waiver where justified by the specified decision guidelines ([16]-[17]).
The practical result was a site-specific assessment. The Tribunal considered the expert evidence and the development context, rather than applying the standard rate mechanically. It found that 0.5 spaces per seat was appropriate for this proposal and the available evidence, producing a 150-seat capacity when combined with the parking counted ([36], [40]). The judgment does not say that 0.5 is a general rate for restaurants or that the same number of seats would be appropriate at another site.
The sign decision likewise applies the Clause 52.05 guidelines rather than announcing a categorical prohibition on sky signs. The Tribunal expressly distinguished pole signs from building-attached sky signs in the context of this proposal, and assessed the sign's design, relationship to the restaurant building and fit with the local sign pattern ([48]). It did not find that all sky signs are unacceptable.
The order changed Condition 1 of Permit 706285 from a limit of “110 patrons” to “150 seats” ([B]). The permit also had a six-month period connected to monitoring parking conditions ([11], [41]-[42]). The Tribunal did not revise that condition: it had invited the parties to discuss another form of condition but received no agreement ([42]). The judgment therefore should be read as determining the seat limit in the permit under review, not as resolving the longer-term parking position after all surrounding development occurred.
At paragraph 35, the Tribunal explains why it did not simply select the lowest parking rate proposed. Its concern was that the survey evidence was limited and that actual demand included staff, takeaway customers and people waiting for seating. In plain English, a count of seated diners alone would not capture all parking generated by the restaurant.
At paragraph 36, it states: “we consider that a rate of 0.5 spaces/seat should be applied, although we accept that it could have a degree of conservatism.” The practical meaning is that the Tribunal chose a rate between the standard scheme rate and the lower expert figure. It considered that rate suitable on the evidence available, while recognising it might overstate parking demand to some degree.
At paragraph 40, it concludes that “a seating capacity of 150 seats is reasonable at this time based on parking availability both on-site and within the locality.” The words “at this time” matter. Paragraph 41 explains that nearby development and the library's later opening could change parking conditions, and paragraph 41 says it could be reasonable to revisit availability if more seating expansion were sought.
For the sky sign, paragraph 48 says the Tribunal could not find that the proposal satisfied Clause 52.05. In plain English, the sign's identification function and lack of an identified safety problem did not overcome the Tribunal's concerns about its design and effect on the building and surrounding area. The Tribunal considered the existing fascia signs better integrated with the building and found no comparable sky signs in the local pattern ([46], [48]).
The reasoning is most directly relevant to disputes in which a planning authority or review body must decide whether reduced parking provision can support a particular seating capacity. The judgment shows the relevance of reliable, representative parking surveys, particularly where the busiest trading periods are not all covered ([26], [35]). It also illustrates that the assessment may account for staff, takeaway customers and people waiting for service, not only seated patrons ([29], [35]).
The decision is also relevant where a proposal relies on street parking beside undeveloped land or nearby sites. The Tribunal considered the present availability of spaces alongside the likelihood that future uses would create competing demand. It did not assume that all nearby spaces were available to the restaurant merely because they were unused at the time of the hearing ([38]-[40]). It also distinguished lawful parking arrangements from possible or informal future changes ([37]).
For advertising signs, the judgment addresses a building-attached sign above a roof in an area with other types of signs but no sky signs. The Tribunal considered the relationship between the sign and the building, the local advertising pattern, and amenity under Clause 52.05 ([46]-[49]). The analysis is specific to the proposed sign and its setting. The judgment does not establish that any single feature, such as illumination or attachment to a building, automatically determines the outcome.
The supplied judgment contains no discussion of later cases, and it cannot establish how subsequent courts or tribunals have treated this decision. No later treatment, citation history or precedential status can be responsibly identified from the judgment text alone.
Within the decision itself, the Tribunal's reasoning is anchored in the local scheme provisions and the evidence about this restaurant, its parking supply and nearby development. It expressly made its 150-seat finding “at this time” and contemplated that parking conditions could be reassessed if future expansion were sought ([40]-[41]). That qualification cautions against treating the seat number or parking rate as a universal rule.
The judgment also identifies procedural limits on its own treatment of the enforcement matter. The Council's enforcement application was allowed by consent, and the Tribunal stated it had not considered the substance of that application ([5]). Thus, the decision supplies no merits determination on whether the former 90-seat condition had been breached or what enforcement analysis would otherwise have applied.
The judgment leaves open how parking demand would change once the public library and other approved or proposed nearby uses were operating. At the hearing, the library had not yet opened, the motel had a permit but was not described as operating, and another restaurant proposal had not been decided ([9]). The Tribunal anticipated that these developments might affect the availability of on-street parking ([41]).
It also leaves open the outcome of any later application for further seating. The Tribunal said parking availability could reasonably be re-examined if further expansion were sought, but did not decide what evidence, parking rate or seat limit would then be justified ([41]). The six-month permit condition was not reformulated, because the parties did not agree to a revised form after the Tribunal raised the issue ([42]).
On the sky sign, the Tribunal said a different form might be pursued and agreed that a pole sign could be acceptable subject to its design ([49]). It did not decide the acceptability of any alternative design, location, size or illumination. Nor did it provide a general test for when a sky sign would be acceptable in a different local setting.
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APPLICATION NOS. 2000/76945, 2001/12273 & 2001/12302
Applications under s. 77, 80 and 114 of the Planning and Environment Act 1987; Whittlesea Planning Scheme; Restaurant; Car Parking Reduction; Increased Seating Capacity; Sky Sign.
Medium Neutral Citation [2001] VCAT 1624
Aspro Monti Pty Ltd & Aberlink Pty Ltd (amended from Pantaleo Investments Pty Ltd & F A Nania Pty Ltd)
APPLICATION No. 2001/12302 (Against Refusal to Grant a Permit)
APPLICATION No. 2001/ 12273 (Against Condition Included in Permit)
Increased seating capacity of the existing restaurant (food & drink premises) including a reduction in car parking
A. By consent, Application for Review 2000/76945 is allowed. It is ordered that accommodation for patrons at the premises at No. 1 -11 The Link not exceed the number of seats determined by the Tribunal in Application for Review No. 2001/12273 (Permit 706285). No further orders are made in relation to that Application or as to costs.
B. Application for Review No. 2001/12273 is allowed in part and the decision of the Responsible Authority is varied. Pursuant to section 85(1)(a) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue Permit 706285 with Condition 1 varied by the deletion of "110 patrons" which is replaced with "150 seats".
C. Application for Review No. 2001/12302 is not allowed and the decision of the Responsible Authority is affirmed. No permit is to issue.
Mr R Attiwill of Counsel appeared on behalf of Aspro Monti Pty Ltd and Aberlink Pty Ltd. He called Mr R Viney, Town Planner, and Mr A Carr, Traffic Engineer of Grogan Richards Pty Ltd, to give evidence. Mr T Condello, owner of the restaurant, also made submissions.
Ms S Brennan of Counsel, instructed by Maddock Lonie & Chisholm Solicitors, appeared on behalf of the Responsible Authority. She called Mr Basic, Traffic Engineer of the Whittlesea Shire Council, to give evidence.
A number of plans, photographs and other documents were tendered to the Tribunal. Witnesses were made available for cross-examination. All material has been considered by the Tribunal and is retained on file.
The site and locality were inspected by the Tribunal subsequent to the Hearing.
1. Application No. 2000/76945 is brought by the Whittlesea Shire Council ("the Council") under Section 114 of the Planning and Environment Act 1987. It seeks an enforcement order relating to the use of the land at No. 1 - 11 The Link and compliance with the number of seats specified in Condition 13 of Permit No. 702992 issued on 11 July 1996. That number is 90 seats.
2. Application No. 2001/12273 is brought under Section 80 of the Planning and Environment Act 1987 by Aberlink Pty Ltd for review of a condition included in Permit 706285 issued by the Council on 19 December 2000. The contested condition is Condition No. 1. It restricts the number of patrons in the restaurant allowed by the permit to 110 at any one time without the written approval of the Responsible Authority. The Application for Review was lodged on 19 February 2001 with a detailed statement of grounds.
3. Application No. 2001/12302 is brought under Section 77 of the Planning and Environment Act 1987 by Matters of Identity (for Aberlink Pty Ltd) for review of a decision by the Council to refuse to grant a permit in application no. 706280. The Council issued a Notice of Refusal on 19 December 2000 on the grounds that the proposed sign is contrary to Council's Outdoor Advertising Guidelines and will detract from the visual amenity of the area. The Application for Review was lodged on 19 February 2001 with a detailed statement of grounds.
4. Ms Brennan sought leave to amend Application for Review No. 2000/76945 to refer to the new owner and occupiers of the land, being Aspro Monti Pty Ltd and Aberlink Pty Ltd. As there was no objection to this request, the Tribunal granted leave for this amendment in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998.
5. There was also some discussion as to the status of the enforcement order proceedings. It was agreed between the parties that the Tribunal should proceed to hear and determine the merits of Application for Review No. 2001/12273 and the enforcement order should direct compliance with that determination. [We note that there was no dispute that the premises currently contain more than 90 seats]. The orders now made in Application for Review No. 2000/76945 reflect the agreement reached in relation to the order sought and we record that the Tribunal has not considered the substance of that Application.
6. Ms Brennan also referred to the contested Condition 1 in Permit 706285 (Application for Review No. 2001/12273). She explained that although the condition refers to a maximum number of patrons, the main issue is the number of seats within the restaurant. The existing restaurant also has a take-away food service and other patrons may be within the building waiting to be seated. We note that submission and comment that the submissions put to us by the parties primarily related to seating as the determinative issue.
7. The site has frontages to The Link and Plenty Road (service road) and is 2,239 square metres in area. It is occupied by a La Porchetta restaurant, a pizza and pasta restaurant with a bar and take-away food facility. That restaurant was allowed by Permit 702992, issued in July 1996, and restricts the number of seats to 90. It requires 41 car spaces to be provided. We were advised that a landscape plan that was endorsed by the Council shows one additional car space on-site, and that space is available (but not line-marked). The car spaces are accessed via two cross-overs on The Link and one from the Plenty Road service lane.
8. The restaurant is located around 4 - 5 metres from the Plenty Road service lane. It is single storey, constructed in brick, with a pitched tiled roof. The restaurant is open from 11am to 11pm each day. Mr Viney's evidence states that 43 persons are employed, 9 on a full-time basis and 34 part-time. The parties were in agreement that the busiest times for the operation of the premises are Friday & Saturday evenings and Sundays. Existing signage is in the form of fascia signs.
9. Properties abutting the site are presently undeveloped. The Council is constructing a new public library facility to the south-west of the subject site. That is a single storey building and will include 58 on-site car spaces. The permit for that development (Permit 705595) allows the facility to open to 10.30pm each day. We were advised that the library development will have seating for 150-160 persons and is due for completion by the end of 2001. In addition, the Council has issued Permit 706592 for a 30 unit motel to the east of the subject site, opposite on The Link. It will have 36 on-site spaces. The Tribunal was advised that a permit application has been lodged for a 200 seat restaurant and bakery to the south-east of the subject site. No decision has been made on that proposal.
10. Plenty Road is an arterial road. Its service lane (one-way, south bound) provides access to a McDonald's restaurant, service station, vacant land abutting the subject site, the subject site and the new library. The Link is a two-way road of 8.2 metres in width to the east of the subject site and 12.2 metres south of the subject site. The Link is unmade between the subject site and McDonalds premises.
11. It is proposed to increase the number of seats in the restaurant to 170, with no additional on-site car parking. It is noted that the report of the Council officer recommended 135 patrons and that the decision of the Council was 110. Traffic advice was provided to the Council by both its officers and Turbull Fenner Traffic Engineers. We return to the differences in opinions later. We also note that Permit 706285 issued by the Council restricts the life of the permit to six months to enable the Council to "monitor the parking situation in the surrounding area".
12. Approval is also sought to erect an illuminated sky sign of 1.2 x 2.4 metres (2.8m2) above the restaurant entry. It would be around 2.5 metres above the roof line and contain the words "La Porchetta Pizza, Seafood" and a "Coca Cola" logo.
13. The land is located in a Business 4 Zone under the provisions of the Whittlesea Planning Scheme. The purpose of the Zone is:
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services.
14. A planning permit is required pursuant to Clause 34.04 of the Planning Scheme to use the premises as a restaurant and take away food premises and for buildings and works.
15. Car parking provisions are set out at Clause 52.06. The purpose of the Clause includes:
* To ensure that car parking facilities are provided in accordance with:
* The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.
* To provide the opportunity to use parking precinct plans in appropriate locations.
* To promote the efficient use of car spaces through the consolidation of car parking facilities.
* To ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality.
16. The use of the premises as proposed (170 seats) would require 102 car spaces to be provided on-site pursuant to the table to the Clause which applies a rate of 0.6 spaces per seat. At 110 seats, 66 spaces would be required on-site.
17. Clause 52.06 allows this requirement to be reduced or waived. If a permit is sought to waive or reduce the parking requirement, the decision guidelines state that the applicant must satisfy the Responsible Authority that the reduced provision is justified due to:
* The availability of car parking in the locality.
* The availability of public transport in the locality.
* Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.
* Any car parking deficiency or surplus associated with the existing use of the land.
* Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.
* An empirical assessment of car parking demand.
18. Pursuant to Clause 34.04-5, the Business 4 Zone is in category 1 of Clause 52.05 (advertising signs). Pursuant to Clause 52.05-7, the site is within the minimum limitation business area for advertising signs. The purpose of this area is to "provide for identification and promotion signs and signs that add vitality and colour to business areas".
19. A sky sign is defined by Clause 73 as including "a sign on or above the roof of a building" and requires a permit pursuant to Clause 52.05-7.
20. The decision guidelines at Clause 52.05 include the following:
s The effect of the sign on the amenity of the area including the need to avoid visual disorder or clutter of signs.
s The effect of the sign on the built environment or the landscape....
s The need for identification and the opportunities for adequate identification on the site and nearby.
s The advertising pattern and theme in the area and the number of signs of the same type.
s The size and likely impact of the sign having regard to the size of the premises on which it is to be displayed and the scale of surrounding buildings.
s The effect of the sign on the appearance and efficiency of a road, railway, waterway or other public way, having particular regard to the sign's colour, brightness and location.
s The views of the Roads Corporation if the sign is an animated, floodlit, internally-illuminated, panel, reflective or sky sign to be displayed within 60 metres of, or to project over, a freeway, state highway, metropolitan bridge or other road declared under the Transport Act 1983.
21. The policies and objectives set out in the State Planning Policy Framework and Local Planning Policy Framework are relevant to the consideration of the proposal. The decision guidelines at Clause 65 must also be considered.
22. Plenty Road is a Road 1 Zone and land immediately surrounding the subject site is included in the Business 4 Zone.
Increased Seating Capacity (Application No. 2001/12273)
23. The key issues in this Application are the car parking rate that should be applied and the extent to which on-street parking in the area, beyond that abutting the site, should be able to be relied upon. In confining our review to those considerations, we concur with the submissions of both parties that:
s there is no applicable or relevant parking precinct plan.
s a rate of less than 0.6 spaces per seat is reasonable to consider based on empirical assessment.
s most restaurant patrons will drive to the premises and public transport will not be influential in assessing the parking demands generated by the proposed additional seating.
s 41 on-site car spaces (or 42 as available at present and required by the landscape plan endorsed under Permit No. 702992) are not adequate to service the parking demands generated by additional seating on the premises (be that 110 seats or 170 seats).
s Friday & Saturday evenings, and Sundays, are consistently the peak times of operation.
24. We turn to the submissions and evidence of the parties. The key differences between the parties can be summarised as follows:
s Ms Brennan submitted that car parking is currently available on-street as there is no demand other than from La Porchetta. This is because immediately adjoining sites are undeveloped and this will change in the future with approved uses commencing. Regard should be given to those future uses that may also require access to on-street parking and it is not fair or reasonable for all on-street spaces within the area (and abutting other sites) to be relied upon. The use should only be allowed to rely on street parking adjacent to the subject site.
s Mr Attiwill submitted that it is reasonable to rely on on-street parking beyond that immediately abutting the site in accordance with the decision guidelines of Clause 52.06, eg. that refer to "availability of car parking in the locality" (his emphasis). He said that it is unlikely that uses such as the motel and library will affect on-street parking, particularly at the peak restaurant times, as they are to be essentially self-sufficient in parking.
25. A traffic and parking report, prepared by Grogan Richards Pty Ltd, dated 14 September 2000, was submitted with the permit application. Mr Basic, a Council officer, made an initial parking assessment and provided advice to the planning officer (dated 6 November 2000). Subsequently, the planning officer obtained external advice from Turbull Fenner Traffic Engineers (dated 7 December 2000).
26. Each of the expert assessments reach different conclusions, although there are some elements of concurrence. We note that there is only one set of survey results which relate to a Friday evening and Sunday in August 2000, but do not include a Saturday evening. The survey was conducted by Grogan Richards and the results are recorded in the company's September 2000 report. Mr Condello explained that Saturday nights are also a busy family night and can be likened to a Friday but with more family groups. Mr Basic undertook a parking survey on Saturday 28 October 2000, however there was no count of patrons within the restaurant on that evening.
27. Mr Carr of Grogan Richards was called to give evidence for the Applicant and Mr Basic gave evidence for the Council. No evidence was called from the author of the Turnbull Fenner report.
28. We summarise the key findings, and differences in opinions, next. We include the findings of Turnbull Fenner in terms of an appropriate parking rate as they were relied upon to some extent by Mr Attiwill.
29. In relation to the appropriate parking rate to apply, the evidence is:
0.43 spaces per patron based on peak patron parking rate.
0.49 spaces for patrons to be seated. Rate calculated on the basis of an average across peak times, based on the survey results of Grogan Richards.
An additional allowance is required to be added to this rate for staff, take-away food customers and patrons waiting in queues.
0.43 spaces per patron, based on the peak identified in the Grogan Richards survey (7pm on a Sunday evening).
30. We note that the 28 October 2000 survey found there to be 87 on-site and on-street spaces occupied. Turnbull Fenner made allowances of 9 staff (not disputed by any party) and 200 patrons at that time (an assumption that cannot be verified as no counts were undertaken) to conclude that a rate of 0.39 applied at that time. We can give no weight to that as the number of patrons is not known, and the rate could vary quite substantially. For example, if 170 patrons were in attendance, as was the case on the Sunday evening, we calculate the parking rate for restaurant patrons to be 0.465.
31. In addition to the 41 on-site spaces (or 42 as available), Mr Carr and Mr Basic (updated in his oral evidence and through cross-examination) agreed about the number of on-street parking spaces abutting the site, being 23 spaces.
32. Where the opinions differ is in relation to reliance on additional on-street parking. Mr Carr considered it reasonable to rely upon spaces proposed abutting the motel site (9 spaces) and near to a child care centre (12 spaces). He also referred to the potential availability of parking within the library development and roadworks that could increase on-street parking via the installation of angle parking in The Link. Conversely, Mr Basic did not consider it appropriate to include parking adjacent to the motel as vehicle access at this bend in The Link would be restricted. He also indicated that the operation of the library is not known at this time. We note that the Turnbull Fenner report commented that it was appropriate to allocate spaces at the abuttal to the motel site but we are unaware whether that company had any knowledge of the proposal for the motel at the time its report was prepared [the planning permit for the motel was issued in May 2001].
33. The conclusions in each assessment about the acceptable seating/patron capacity of the restaurant based on available parking were:
34. We turn to our consideration of this evidence. There is no dispute that 64 spaces can reasonably be relied upon (ie. 41 on-site and 23 on-street abutting). Adopting that minimum and taking the differences in calculating appropriate patron numbers, Mr Carr's method would result in a total of 127 seats (assuming less 9 or 10 spaces for staff and a rate of 0.43) or 133 seats (when applying a rate of 0.48) and Mr Basic's approach would result in a total of 112 patrons.
35. We accept that it is reasonable to vary from a rate of 0.6 spaces based on the empirical assessment before us, however, we are cautious about adopting a level of 0.43 when we only have one set of survey results on which to rely, and they exclude a Saturday evening. A rate of 0.48 may be reasonable based on the evidence before us when also considering staff needs, however, additional (and possibly quite significant) demands arise from take-away food customers and patrons waiting for seating. From the comments made by Mr Condello, customers will be able to wait, rather than being turned away. We accept Ms Brennan's submissions that in the current setting of the subject site, with little if no competition from a similar restaurant/take-away food facility, there is a strong likelihood that customers will queue for a seat/table longer than in other circumstances where there is a choice to proceed to another restaurant or bar. Moreover, from the evidence and submissions we received, Friday & Saturday evenings and Sundays are all busy, and we consider it appropriate to have regard to the high levels of patronage that occur and are maintained over that period.
36. For these reasons, we consider that a rate of 0.5 spaces/seat should be applied, although we accept that it could have a degree of conservatism.
37. In relation to the extent of on-street parking that can be relied upon, we consider the base figure from which to work is 64 spaces - being the figure which the experts agreed is reasonably available. We do not place any reliance on works that may occur to modify the spaces, ie. angle spaces in The Link, as there is no certainty that they may eventuate. Even though there may be some informal angle parking at present, we only refer to lawful parking arrangements.
38. A number of lots in the immediate vicinity of the subject site have yet to be developed, and we therefore understand the Council's valid concern about approving increased seating to the extent that relies on most of the on-street parking in the immediate vicinity, as is the case in Grogan Richard's analysis. At this time, we can not make a finding that other land uses will not place significant demands on parking on the adjoining and nearby roads, even if they provide on-site parking. We adopt the approach advocated by Clause 52.06 of the Scheme that supports a sharing of parking spaces. Although some sites may be relatively well self-contained, the motel and other uses that establish may too have over-flow needs which will result in their customers seeking spaces convenient to those premises.
39. We therefore take the view that while some parking opposite the motel site can reasonably be relied upon, as can some in the service road, all of the spaces abutting future development sites should not at this time. Based on the estimates used in expert evidence, this would result in a share of the 8-9 spaces abutting the motel and 25 spaces along the service road. We do not consider it appropriate to allocate all from one location given that it is apparent from existing parking patterns that the service road is well used as are spaces in The Link and patrons will usually chose the most convenient spaces.
40. We conclude that a seating capacity of 150 seats is reasonable at this time based on parking availability both on-site and within the locality. That makes an allowance for some 11 spaces in the locality in addition to the 64 agreed in the evidence presented and applying a rate of 0.5 spaces/seat.
41. We make this finding cognisant of the trial period referred to in the permit of six months (Condition 2). That will give an opportunity for the parking situation to be reviewed, although as the library is not due to open until the end of 2001 and other uses have not commenced, a longer time frame may well be required. In time, as development proceeds on the vacant sites and the library is complete, it would be reasonable to re-examine the availability of on-street parking if any further expansion in seating is sought.
42. With regard to Condition 2, at the Hearing we raised the question of the structure of the condition which, as included in permit, expires within six months. We suggested that the parties may wish to discuss another formation of that condition which would allow the Council to approve an extension beyond that time, after considering the impact of the increased seating. We allowed the parties the opportunity to consider that suggestion and advise the Tribunal within one week of any agreement. As we have not received any correspondence in relation to this matter, we make no orders as to a revised form of the Condition.
43. Ms Brennan submitted that the proposed sign will not enhance the visual amenity of the area and is contrary to policy set out in the Scheme that discourages sky signs adjacent to major transport corridors (eg. Ring Road). She described the low level of signage evident at present in the area and submitted that there is no precedent for a sky sign based on three existing pole signs. She considered that the proposed sign would detract from the appearance of the restaurant building given its size, shape and prominence. While noting that the Council's Outdoor Advertising Guidelines (1993) are not referenced or incorporated into the Scheme, Ms Brennan also submitted that the sign is contrary to that policy, which expressly discourages sky signs.
44. Ms Brennan advised the Tribunal that the sign proposal was referred to VicRoads however, no response was received.
45. Mr Attiwill submitted that little weight could be given to the Council's Guidelines and that there is little justification to distinguish between a pole sign and a sky sign. He submitted that a pole sign is typically more prominent than a sky sign. Mr Attiwill submitted that the proposed sign would add vitality and colour, would not cause a loss of amenity, and would enhance the safety and efficiency of Plenty Road. Mr Viney's evidence was that the sign is intended to provide better identification of the premises and is consistent with the business zoning and existing signage. He was critical of the Council's "blanket opposition to sky signs" and considered that the sign "meshes within the design parameters of the building". He was of the view that the sign would not detract from the visual amenity of the area.
46. We accept Ms Brennan's description of other signage in the area which includes three poles signs (two associated with service stations and one with McDonald's). There are no sky signs but some other forms of signage are evident. It is reasonable to expect that additional signage as development proceeds for example, within the approved library and motel developments.
47. We note that the proposed sign seeks to identify the restaurant and also includes an advertising logo.
48. While we can give the Council's Guidelines limited, if any, weight, we concur with the submissions of Ms Brennan in relation to the merits of the proposed sign. While we accept that the sign may not have any safety implications and will assist to identify the business on the site, we are not able to find that it satisfies the decision guidelines of Clause 52.05. We consider it reasonable to distinguish between pole and sky signs, the distinction being that a pole sign is on its own structure and separate from a building whereas a sky sign is attached to a building. The proposed sign seeks to take advantage of a pole that has been attached to the roof for power supply. That structure is unassuming whereas we do not find that the proposed sign will complement the existing building or make a positive contribution to the amenity of the locality. The proposed sign does not achieve the same outcome of the existing fascia signage that is well integrated with the building form. Moreover, the existing advertising pattern and theme in the area does not include sky signs but is represented by pole signs.
49. We note that Ms Brennan submitted that a pole sign may be acceptable as an alternative, subject to its design, and we agree that a different form should be pursued.
s By consent, Application for Review 2000/76945 is allowed. It is ordered that accommodation for patrons at the premises at No. 1 -11 The Link not exceed the number of seats determined by the Tribunal in Application for Review No. 2001/12273 (Permit 706285). No further orders are made in relation to that Application or as to costs.
s Application for Review No. 2001/12273 is allowed in part, and we will order that Permit 706285 issue with Condition 1 varied to refer to 150 seats.
s Application for Review No. 2001/12302 is not allowed, and we will order that no permit issue in permit application no. 706280.
Application 2000/76945 was allowed by consent, with an order limiting patron accommodation to the seat number determined in the seating review. Application 2001/12273 was allowed in part and Permit 706285 was directed to issue with Condition 1 amended from '110 patrons' to '150 seats'. Application 2001/12302 was not allowed, the Council's refusal was affirmed, and no sky-sign permit was to issue. No costs order was made in the enforcement application.