Medium Neutral Citation [2002] VCAT 1124

Subject Land 1003-1011 Point Nepean Road, Rosebud

A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 1003-1011 Point Nepean Road, Rosebud.

Construction of a restaurant, bar, function centre and associated car parking and sale and consumption of liquor in accordance with the endorsed plans.

1. Before the use and development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, and endorsed accordingly, these plans will form part of this permit. Such plans are to be drawn to scale with dimensions and three copies are to be provided. The plans are to be generally in accordance with the plans presented at the Victorian Civil and Administrative Tribunal and dated May 2002 but modified to show:

a) The rear wall of the ground floor (west of the store) is to be setback from the ROW and access way to provide for the provision of a minimum of 3 car spaces with dimensions that accord with AS 2098. Sufficient width is to be provided between the car spaces and the brick wall on the southern side of the ROW/subject site to enable compliance with relevant AS 2098 standards in relation to width of access lanes.

2. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction as shown on the endorsed plans must not be altered or modified without the written consent of the responsible authority.

3. Except with the further consent of the responsible authority the use may operate only between the following hours:

Monday to Sunday (all week): 7.00am to 1.00am (the following day)

4. The approved use must not cause any nuisance or annoyance to persons beyond the land because of the emission of noise, or otherwise, to the satisfaction of the responsible authority.

5. Except as limited below, no more than 300 seats must be provided for patrons of the approved use unless with the consent of the responsible authority. Between the hours of 7am and 5pm on any day, not more than 200 of the total 300 seats must be provided for patrons of the approved use unless with the consent of the responsible authority.

6. Goods or materials must not be stored between the building and the street.

7. Before the development starts, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be to the satisfaction of the responsible authority be:

2. properly formed to such levels that they can be used in accordance with the plans

5. Line-marked to indicate each car space and all access lanes. Parking areas and access lanes must be kept available for these purposes at all times.

8. The loading and unloading of goods from vehicles must only be carried out on the land or from a suitable loading bay.

9. Required construction plans for all parking areas, access lanes, and drainage must be approved by the responsible authority prior to the start of the approved works.

10. All areas of the development must be drained to a legal point of stormwater discharge via an underground drainage system or other approved method of stormwater drainage to the satisfaction of the responsible authority. This drainage system must include permanent siltation control measures during construction.

11. Sound levels emanating from the land must not exceed those required to be met under the State Environment Protection Policies No's N-1 (Control of Noise from Commerce, Industry and Trade), and N-2 (Control of Noise from Public Premises).

12. This permit will expire if one of the following circumstances applies:

* The development is not started within 2 years of the date of this permit.

* The development is not completed within 2 years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months of expiry.

A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 1003-1011 Point Nepean Road, Rosebud.

Construction of a shop, office and associated car parking in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, and endorsed accordingly, these plans will form part of this permit. Such plans are to be drawn to scale with dimensions and three copies are to be provided. The plans are to be generally in accordance with the plans presented at the Victorian Civil and Administrative Tribunal and dated May 2002 but modified to show:

a) The rear wall of the ground floor to be setback from the ROW to provide for the provision of 4 car spaces (2 tandem) with dimensions that accord with AS 2098. Sufficient width is to be provided between the car spaces and the brick wall on the southern side of the ROW to enable compliance with relevant AS 2098 standards in relation to access lanes.

b) A separate rear access and stair from the car park to the upper floor office.

2. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction as shown on the endorsed plans must not be altered or modified without the written consent of the responsible authority.

3. Goods or materials must not be stored between the building and the street.

4. Before the development starts, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be to the satisfaction of the responsible authority be:

2. properly formed to such levels that they can be used in accordance with the plans

5. Line-marked to indicate each car space and all access lanes. Parking areas and access lanes must be kept available for these purposes at all times.

5. The loading and unloading of goods from vehicles must only be carried out on the land or from a suitable loading bay.

6. Not less than 4 car parking spaces must be provided on the land for the shop and office.

7. Required construction plans for all parking areas, access lanes, and drainage must be approved by the responsible authority prior to the start of the approved works.

8. All areas of the development must be drained to a legal point of stormwater discharge via an underground drainage system or other approved method of stormwater drainage to the satisfaction of the responsible authority. This drainage system must include permanent siltation control measures during construction.

9. This permit will expire if one of the following circumstances applies:

* The development is not started within 2 years of the date of this permit.

* The development is not completed within 2 years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months of expiry.

For the Applicant for Review Mr Graeme Peake. He called David Hansen, Town Planner and Russell Symons Traffic Engineer, both of Ratio Planning and Development Consultants.

For the Responsible Authority Sotirios Katakouzinos

1. These are Applications for Review pursuant to Section 77 of the Planning and Environment Act 1987 to review decisions by the Mornington Peninsula Shire Council to refuse to grant permits for the following:

* In Application No P01/1869 for the use and development of a function centre, bar and restaurant, waiving of parking requirements and sale and consumption of liquor on part of Nos 1003-1011 Point Nepean Road, Rosebud.

* In Application No P01/1870 for the use and development of a shop and office and waiving of car parking and loading and unloading requirements on part of Nos 1003-1011 Point Nepean Road, Rosebud.

2. The subject applications for permit were lodged concurrently with the Responsible Authority on 21st August 2001. Following the giving of notice of the applications, 11 objections were received. The grounds for objection were summarised in the Council officer's report.

3. The two Applications for Review were lodged on 25th March 2002.

4. By forwarding grounds for contesting the applications for review MCS Property Ltd and Graeme Jennings became parties to the proceeding.

5. I have considered all the photos, plans and other material presented at the hearing and have inspected the site, the Rosebud shopping centre and surrounding locality.

6. For convenience I have written one decision for both applications, but where necessary have distinguished between the two proposals. The material placed before me was for the most part presented separately for each application, but there was considerable overlap in terms of the discussion about planning policy, key planning issues and car parking.

7. At the commencement of the hearing Mr Peake confirmed his request to amend the application for restaurant and function room (P758/2002) to substitute plans which show:

* Deletion of ground floor rear courtyard, function room, toilets, dry store and part of cool store.

* Restaurant to have maximum seating capacity of 150.

* Function room to have maximum seating capacity of 150, reduced to 126 when external deck for 24 is in use.

* Total seating capacity reduced from 620 to 200 maximum 7am to 5pm and 300 maximum 5pm to 1am.

* Deletion of 20 seats for take-away food area in front of building.

No changes were made to plans for the office/shop building. Since the revised design has been previously circulated and no objection received, pursuant to Section 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the application P758/2002 was so amended.

8. Mr Peake asked that, in accordance with Section 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the applicants name be changed in both applications to Joseph Alesci, the property owner, instead of the project designer. I agreed and the applications were so amended.

9. By letter dated 6th August 2002, Environmental Resources Management Australia Pty Ltd (on behalf of MCS Properties Ltd owner of the Rosebud Village Shopping Centre located to the east) advised that their client still objected to the modified proposal because of the provision of insufficient car parking to meet demands generated on the site. They noted that if the proposal were to be supported, then any permit should require the seating capacity to be further reduced and/or the applicant being required to make a substantial financial contribution to Council for public parking in the centre. The letter further advised that they would not be appearing to represent their client at the hearing.

10. I find the following description of the site and locality, taken from the submission by Mr Peake, to be an appropriate one and confirms my observations during a site visit:

2.1 The appeal site is located within the Rosebud Shopping Centre. It abuts a Real Estate Agents' office to the west. To the east is a two storey commercial building and then the "Safeway" development, with its associated at-grade car park.

2.2 To the south, the site abuts a number of commercial uses fronting Rosebud Parade, including a motor vehicle tyre outlet.

2.3 There is access to the rear of the site via a laneway from Rosebud Parade.

2.4 The eastern part of the site is developed with a two storey building, appearing to have been constructed in the 1960's, which was formerly the Rosebud Post Office. To the rear of this building is an open gravel yard, that was used for the storage of and loading of mail delivery vans.

2.6 Immediately in front of the site, Nepean Highway has been reconstructed so as to provide a service road across the shop frontages, with angle parking on both sides.

2.7 The appeal site can be fairly described as being located in the heart of the Rosebud Shopping Centre.

11. The proposal, as now modified, has two components each the subject of a separate permit application and Application for Review.

* Redevelop the existing two storey building by extending the front of the building flush with the footpath, enlarging the rear of the building at both levels to provide additional seating capacity.

* The downstairs area will continue to be used for a restaurant (but enlarged from the current 48 seats to 150 seats.

* The upstairs area will be used for a 150 seat function room.

* Total height of the building is 6.94 metres at the front rising to 8.75 metres towards the rear.

* The building abuts the front and western side boundary with a narrow access way along the eastern boundary linking the front and rear of the site.

* At the rear, ten car spaces are provided with access off an existing Right-of-Way.

* Construct a two storey building with shop at ground level and office on floor above. Both floors to have an area of 171 square metres.

* The front wall of the building will be angled to the roadway to follow the existing footpath alignment.

* Total height of the building is 6.94 metres and the building abuts the front, and two side boundaries.

* At the rear, two car spaces are provided with access off an existing Right-of-Way.

12. The land is zoned Business 1 under the Mornington Peninsula Planning Scheme. A permit is not required to use the land for a shop or an office (provided frontage at ground level does not exceed 2 metres) but a permit is required to use the land for a place of assembly, retail premises and tavern. A permit is also required for buildings and works, for car parking dispensation, loading and unloading vehicles dispensation and to consume liquor. Decision guidelines require consideration of various listed matters.

13. An Environmental Significance Overlay (25 - Port Phillip Coastal Area) applies to the front 42 metres of the site.

14. In addition, other Clauses of the Planning Scheme relevant to consideration of the Application include:

s State Planning Policy Framework - Clauses 14 (Settlement), 17.01 (Activity Centres), 17.02 (Business), 18.02 (Car parking and public transport access to development) and 19.03 (Design and built form)

s Local Planning Policy Framework - Clauses 21.02 (Settlement Pattern and Housing; Economic Development), 21.03-3 (Summary of Strategic Challenges and Opportunities - The Need for a Strategic Framework; Strengthening Commercial Activity Centres), 21.04 (Mornington Peninsula Strategic Framework Plan), 21.06 (Strategic Framework and the Peninsula's Settlement Pattern), 21.07-3 (Commercial Activity Centres) and 22.02 (Commercial Subdivision and Siting).

s General provisions - Clauses 52.06 (Car parking), 52.07 (Loading and Unloading of Vehicles), 52.27 (Licensed Premises) and 65 (General Decision Guidelines).

15. In considering the submissions from Council, Mr Jennings and MCS, it is apparent that the key issue concerns what they consider is the inadequate provision of car parking for the function centre/restaurant, and to a lesser extent the inadequate parking for the shop/office. I agree that parking is a key concern, but in making my decision, I have firstly considered the broader strategic planning framework and the actual design of the developments before finally considering the adequacy of car parking.

16. The State Planning Policy Framework provides the following objectives and implementation statements, as relevant, for consideration of this proposal:

* achieving a high standard of urban design and amenity,

* encouraging a concentration of major retail, commercial and entertainment developments into activity centres including strip shopping centres,

* achieving high quality urban design and architecture having regard to context, the public realm, landmarks, views and vista, pedestrian spaces, heritage, consolidation of sites and empty sites, light and shade, energy and resource efficiency, architectural quality and landscape architecture.

17. The Environmental Significance Overlay (25 - Port Phillip Coastal Area), although applying to the front portion of the two sites, is primarily designed to protect and enhance natural features in the coastal area, promote excellence in building design in the coastal area and promote coordinated management in the coastal area. Decision guidelines are orientated towards development in close proximity to the coast and foreshore, and although the overlay applies to part of these sites, I consider the Overlay has little direct relevance to the proposals before.

18. In terms of the Local Planning Policy Framework (LPPF), I note that Clause 21.03 includes a summary of strategic challenges and opportunities and that in relation to strengthening commercial activity it will be achieved in three areas - economically, functionally and environmentally. The Strategic Framework Plan at Clause 21.04 identifies Rosebud as one of the major towns on the Peninsula where economic activity will be focussed based on the development of community services, commercial activity, retailing and service industry.

19. Clause 21.07 provides policy in relation to Guiding Future Township Development and has four components - housing and integrated local area planning, local area character, commercial activity centres and industrial areas. The section relating to commercial activity centres is the most relevant to the proposals before me. It includes statements relating to concentrating commercial activity in townships, major centres offering a wide range of goods, more opportunities for comparison shopping and higher levels of public investment in facilities including car parking, road systems and streetscaping. Strategies include ensuring new development is integrated with and supports existing centres and does not fragment the distribution of commercial activity, providing for the development of appropriate additional commercial floor space in support of the existing commercial pattern, maintaining a continuous retail frontage with offices in upper floors, and coordinating the provision of infrastructure including car parking.

20. Clause 22.02 contains policy for Commercial Subdivision and Siting within the Business 1, 4 and 5 zones. It includes objectives concerning orderly design and development by maintaining consistent standards in relation to siting, height and landscaping. It includes specific policy for design standards, development plans, continuous retail frontage and landscaped median strips. I note that Council's assessment of the proposal against the 4 design elements in the Table to Clause 22.02-03 was positive, although some elements did not strictly apply because the proposal involves redevelopment of an existing building and a new building on a small site sandwiched between existing buildings which cover the whole of their frontages.

21. Having considered the various State and local planning polices applicable to development and redevelopment in commercial centres, I am of the opinion that the two proposals are consistent with relevant planning policy and that they will positively contribute to achieving State and local planning policy objectives and to enhancing the Rosebud shopping centre.

Suitability of the site for the enlarged restaurant, function centre and shop/office, interface with adjoining properties commercial properties and design elements

22. In relation to the suitability of the site, I am satisfied that the proposed redevelopment of the old post office and the construction of the adjoining shop/office building are consistent with the existing size, scale and height of buildings in the area, with the exception of the single storey real estate office to the west. Mr Jennings advised me that the building was built by his family in the late 1930's and as such, is one of the oldest commercial buildings remaining in Rosebud. My inspection revealed that the building has no intrinsic historic character and does not have features that will be compromised by the new shop/office building. A more modern 2 storey brick commercial building abuts the southern side of the real estate office and will also abut the western side of proposed shop/office for part of its length. I consider the new building provides an appropriate design outcome, as it is consistent in height and scale with this abutting development along Rosebud Parade.

23. In relation to the external design elements of the building, I am satisfied with the design elements and materials and with the articulation of the building along the front and rear facades. The two storey shop/office building integrates well with the former post office building and a separate entrance is provided for the upper level office from Point Nepean Road. I do not find acceptable the lack of rear access from the car park for the upper level office. Given issues concerning staff parking which I refer to in later sections of my decision, I consider that the design needs to be modified to provide a separate access stair to the upper floor - without this access, office staff will have to walk around into Rosebud Parade and Point Nepean Road to reach the front stairwell.

24. As noted previously, provision of car parking is the major concern for Council, Mr Jennings and for MCS as owners of the Rosebud Shopping Centre. Council submitted (in relation to the restaurant/function centre) that:

Although the community appears to generally support the key components of the proposal, it is the scale of the proposal and the burden that the community is asked to accept as the key factor which makes the application almost an ambit claim. To expect the local community to share the burden for a handful of car parking spaces is quite a different proposition to asking for car parking to be waived at this scale.

In relation to the shop/office Council submitted that:

The lesser requirement for car parking suggested by the [Council] traffic engineer is not satisfactory. It is preferable that the applicant provides the maximum amount of parking possible on the site with a cash in lieu contribution made for the shortfall.

It is obvious that there are not sufficient parking spaces year round in the commercial area between Jetty Rd and Eighth Ave Rosebud. At the current time it is important council maintains its policy on commercial properties to provide car parking either on site or pay in lieu for future provision. ...There is not sufficient car parking year round in the vicinity of the proposed development.

26. ERM on behalf of MCS, noted in their letter of the 6th August 2002 that:

However, our client still maintains their objection to both applications on the grounds that insufficient carparking is provided for the intensity of the use which are proposed.

27. In contrast Mr Symons gave evidence (in relation to the restaurant/function centre) that:

The proposed development will have parking demands which can be accommodated within existing facilities, without significant impact on other local business.

The proposed development can provide sufficient parking for part of its needs, and the remainder can be accommodated in the surrounding area.

28. In broad principle, I accept the evidence of Mr Symons that it is unreasonable to require each individual building in a shopping centre to provide sufficient parking for its own needs and that it is now well established that the majority of parking in centres should be provided in larger centralised parking areas. I was referred to a decision by Member Liston where this position was restated in a concise manner. I have also considered this issue in relation to the redevelopment of a small site in the High Street strip shopping centre in Armadale. In that decision I noted that:

The inability to provide adequate on-site car parking on small, generally narrow commercial sites in strip shopping centres is a problem across Melbourne and other intensively developed centres in non-metropolitan Victoria. The difficulty is not unique and nor are the solutions unexplored. Municipalities have attempted over many years and through a variety of schemes and processes to provide centralised car parking for strip shopping centres. Actions taken for High Street by Stonnington City Council (and its predecessors) are consistent with this philosophy and a number of Council public car parks exist in and around the whole length of the High Street shopping strip. Other divisions of the Tribunal have discussed this issue at some length and I was referred by Mr Naughton to several of these including a decision by Member Liston in Hubbard & Ors v Boroondara CC (1996/46940 7 Ors). Member Liston quoted various decisions relating to the issue of 'the centre based approach' to car parking. He commented that:

At the level of the individual site where there is a change of use or an extension to an existing building in most circumstances car parking shortfalls should be waived if it is consistent with the strategic plan for the centre, firstly because the most equitable solution is to deal with car parking on a centre wide basis, and secondly because even in saturated car parking conditions a balance will occur between the level of activity and the car parking supply.

I consider it quite reasonable to suggest a third reason, and that is the physical impracticality of requiring individual sites to provide anything approaching the required number of car parks on site. Many sites in strip centres are so small that if required car parking were to be provided entirely or substantially on site then the majority of a site would be devoted to car parking with little space remaining for retail activities. Past provision of public off-street car parks demonstrates that municipalities recognised both the impracticality and undesirability of such an outcome and of the common sense in coordinating the provision of required parking spaces.

29. Although the development site at Rosebud is much larger than the one at Armadale, the same principles apply. Successive Councils have recognised the sense in this approach by providing public car parks in Rosebud and then seeking cash-in-lieu for spaces not able to be provided on an individual site. The mechanism of seeking cash-in-lieu as a condition of planning approval is no longer an option (although I note that draft conditions provided by Council did include such a condition) and Council now has the ability to prepare a Development Contributions Plan and Overlay to collect funds for necessary infrastructure such as public car parking. I do not accept Council's submission that the applicant should either purchase land nearby for parking or contribute cash-in-lieu. If Council is concerned about the amount of public parking in Rosebud and wants landowners to contribute towards such parking (and that seems an entirely reasonable proposition) then it should prepare and have gazetted a Development Contributions Plan based on a strategic assessment of the need and most desirable location for such parking. In the meantime it seems inequitable and unreasonable to prevent re-development of relatively small sites such as the ones before me in Point Nepean Road.

30. I acknowledge the concerns of existing landowners such as Mr Jennings and MCS who have in one way or another already contributed to parking in the centre. In the case of Mr Jennings he has already contributed funds for off-street parking to serve his properties and is concerned that others are being treated differently and are benefiting at his and other landowners expense. I consider this a quite justifiable concern. However the difficulty lies in the fact that Council has chosen not to put in place the appropriate mechanism under the VPP based planning system to deal with this issue of the equitable and transparent collection of funds for additional centralised car parking in Rosebud. It can no longer rely on cash-in-lieu schemes to generate funds for such works.

31. Mr Symons evidence was that customer parking for the restaurant/function when fully occupied would vary between 60 spaces in the daytime and 90 spaces in the evening. His surveys indicate that even if the restaurant were full at lunchtime on a Friday (thus requiring the maximum 60 spaces) there would still be excess capacity in surrounding car park areas. While this was of concern to Council, Mr Jennings and MCS, I note that Council's Traffic Engineering Department commented that customer parking demand could be satisfied by the available car parking in the surrounding area. This advice runs counter to the position put to me by Council and supports the evidence given by Mr Symons. Having regard to the evidence and material before me, I am persuaded that partial waiver of car parking requirements is reasonable.

32. It is the longer term, and more constant car parking needs of staff which creates most difficulty within shopping centres with limited opportunities for on-site parking. It is inconvenient, and in some case unsafe, for staff to have to park a long way from their place of employment. This is particularly the case for staff who use their cars on and off during the day and need ready access or who work late into the night or early morning. Fortunately the two sites have sufficient space to provide for some parking at the rear - in the case of the restaurant for 10 spaces and for the shop/office 2 spaces. In relation to the restaurant/function centre I consider that the provision of 10 spaces is adequate for these longer term needs although the actual layout for the three spaces closest to the building is inadequate having regard to the width of the access way behind these spaces and movement of vehicles. Mr Symons agreed that the width of the access way behind these spaces was inadequate. Without being prescriptive about how these spaces should be reorganised, I have therefore decided that the area adjacent to the store (currently shown as containing 8 tables) is not to be used for restaurant purposes but is instead to be utilised for car parking (see next paragraph concerning parking on the adjoining site).

33. In relation to staff parking for the shop/office, Mr Symons gave evidence that of the 10 spaces required on his assessment, 7 spaces would be required for staff parking. Council's traffic engineer considered that more staff parking should be provided on site with any shortfall made up by cash-in-lieu contributions. Two spaces are provided and although they do not suffer from the same shortcomings of access way width as do the restaurant/function room spaces referred to previously, I am of the opinion that more on-site parking should be provided for staff purposes, although I consider it unreasonable that all be provided on the site. A slight reduction in the ground floor space (reduce the length by around 2 metres) will enable the provision of 2 additional tandem car spaces. While this is still short of the total requirement, it provides for a more practical amount of convenient on-site parking. It also allows for a shop of around 160 square metres while still acknowledging that some parking must be provided elsewhere within the centre.

34. Loading and unloading of vehicles was not a contentious issue and Council's Traffic Engineering Department commented that there was no justification for a separate loading bay for the shop/office and that a loading/unloading bay was provided at the rear of the restaurant/function centre. I agree with this assessment and find arrangements for vehicle loading and unloading quite acceptable.

35. In relation to approval for the sale and consumption of liquor for the restaurant, bar and function centre, I find it quite reasonable that liquor can be sold and consumed for the whole time that they are open. Operating hours are 7am to 1am the next day and these are reasonable hours for the concurrent and complementary sale and consumption of liquor by patrons.

36. Having regard to the above comments, I have found that the proposal is consistent with State and local policy frameworks in relation to commercial development and concentrating such development in existing centres on the Peninsula. I also find that both proposals are compatible with and do integrate with the Rosebud shopping centre and that they will provide for a continuous retail frontage which is at present lacking because of the vacant site next to the old post office building. I also find that the new building is consistent with commercial development in Point Nepean Road and nearby streets.

37. In relation to the contentious issue of car parking, I accept that the two sites are not capable of providing car parking sufficient to meet the demands which will flow from the two developments. In a centre such as Rosebud I consider it quite unreasonable to expect individual sites to provide all their own parking, although I also consider that sites should, wherever practicable, provide for staff or long term parking. To a large degree that has been achieved on these two sites (with modifications suggested by me) and I find that acceptable. In relation to the shortfall in customer parking, I consider it quite reasonable that this is met from within the wider centre. Ideally, the developer would contribute funds towards the provision of such centre wide parking but unfortunately, in the absence of an appropriate Development Contributions Plan, that is not possible with these two proposals.

38. For the above reasons, the Applications for Review are allowed and I direct that permits be issued for the land at 1003-1011 Point Nepean Road, Rosebud, and will so Order.