Victorian Civil and Administrative Tribunal|2012-04-30

The application is allowed. Pursuant to section 87A of the Planning and Environment Act 1987; Planning Permit 0179/09 issued by the Responsible Authority in respect of the subject land is amended as follows:
What the permit allows is amended to read as follows:

Construction of a building in the Business 2 Zone and Residential 1 Zone to be used as a food and drink premises (café, restaurant or convenience restaurant), restricted retail and dwellings (as of right use in the Residential 1 Zone) with associated car parking dispensation and waiver of the loading bay requirements in accordance with the endorsed plans and subject to the following conditions.

Before the commencement of the development three copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans endorsed by the Responsible Authority on 14 January 2011 but modified to incorporate the changes set out in the plans prepared by CBG Architects, TP01 Revision K, TP02 Revision F, TP03 Revision E, TP04 Revision E, TP05 Revision E, TP06 Revision E, TP07 Revision F, TP08 Revision F, TP09 Revision E, TP010 Revision E, TP011 Revision G, TP012 Revision E, TP013 Revision G, TP014 Revision F but modified to show the following changes to the satisfaction of the Responsible Authority:

(a) The six bicycle spaces located to the rear of the building adjacent to the railway pedestrian walkway relocated to a more visible, accessible and suitable location to the satisfaction of the Responsible Authority.

(b) Deletion of bicycle spaces on public land and relocation to the satisfaction of the Responsible Authority.

(c) The ground floor plan to delete reference to 'office', specifically including the notation for 'office entrance' to High Street.

(d) The finished floor level of the commercial tenancies to be consistently delineated on the ground floor plan, elevation and section drawings.

(e) The terrace extension to Apartment 219 at second floor level delineated on the north elevation drawing.

(f) All elevation plans to depict the full extent of built form that will be visible from that particular elevation irrespective of its setback from the most prominent component of built form for that elevation.

(g) An eastern fence elevation documenting the full extent of the pedestrian interface of this site to the railway walkway for the entire site (including the land burdened by easement at the north of the site).

(h) Deletion of the hatching outside the title boundary associated with seating areas of the food and drink premises.

(i) The location of bicycle spaces, dimensions and access arrangements to be specified.

(b) Condition 9(c) is amended to read:

Demonstrate that all parking spaces associated with any commercial use that is prohibited in the Residential 1 Zone are located in the Business 2 Zone.

The Responsible Authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.
The Responsible Authority is directed to endorse amended plans reflecting amendments to the permit.

Mr K Kiriakidis, Traffic Engineer of GTA Consultants

Mr D Song, Planning Consultant of Aspect Town Planners Pty Ltd (on 9 December 2011)

The land is an irregular shape generally located on the north east corner of High Street and Charles Street in Prahran. It has a total site area of 2,651 square metres.

Planning Permit 179/09 was issued by the Council on 13 January 2010 at the direction of the Tribunal allowing a seven storey building with basement car parking to be constructed and used as a café, office and residential apartments with an associated car parking dispensation.

The Council has subsequently endorsed two sets of plans under secondary consent. The current approval includes 109 dwellings and 109 car spaces and 750 square metres of office floor area at ground level.

To change the use of the three ground floor office tenancies to restricted retail premises (showroom) with associated reduction in the car parking requirement.

To increase the number of car spaces by two with changes to the car parking allocation.

Various changes to the building envelope and layout.

Clause 32.01-4 To construct two or more dwellings on a lot in R1Z

Clause 32.01-1 To use part of the land as a food and drink premises in R1Z

Clause 34.02-4 To construct a building, and to construct or carry out works in B2Z

Clause 34.02-1 To use land for dwellings, food and drink premises and restricted retail premises in B2Z

Clause 52.34-3 To provide bicycle parking for a retail premises (restricted retail premises)

A planning permit was issued at the direction of the Tribunal in 2009/2010 allowing the development of seven storey building over two levels of basement car parking at 85 - 97 High Street, Prahran. The permit allows the land to be used as a food and drink premises (café, restaurant or convenience restaurant), office (as of right use) and dwellings (as of right use in the Residential 1 Zone) with associated car parking dispensations. Plans were endorsed to form part of the permit on 18 June 2010. These plans also included some secondary consent amendments. On 14 January 2011, the Council approved a further set of secondary consent amendments to the plans. Mr Song explained previous amendments having included a reduction in the approved commercial floor area, an increase in the number of dwellings and car spaces, various dwelling and commercial tenancy layout changes, basement layout revisions and minor setback changes to the building and balconies, etc.
This is an application to amend this permit by, amongst other changes, removing the three ground floor office tenancies and the inclusion of restricted retail premises (showroom) with an associated reduction in the car parking requirement; increasing the overall number of car spaces by two; changing the car parking allocation throughout the basement; and various "minor changes to the building envelope and layout"[1].
On 21 November 2011, the application was considered by the Council with a recommendation from Council officers to support the application subject to conditions. The Council resolved to support this application subject to conditions, but they are conditions that are different from those contained in the Council Officer's recommendation.
At the start of the hearing, the parties advised the matters in dispute related to two of the conditions sought by the Council:
- A condition requiring the deletion of the two additional car spaces; and
- The allocation of seven car spaces as visitor parking.
Hence, during the hearing on 9 December 2011, the parties made submissions about these matters. Following the hearing, I reviewed the minor changes to the building envelope and layout (as described by the Council), the officer report and the Council resolution. This revealed a number of queries about the following matters:
1. Whether commercial car spaces 47 and 48 in the upper basement are within the Business 1 Zone;
2. The necessity for, and appropriateness of, the reduced set back to 10 Charles Street;
3. The necessity for, and the appropriateness of, the loss of various highlight windows;
4. The changes to and the appropriateness of the apartments and balconies in proximity to the River Red Gum and the appropriateness of the Council's suggested condition 1(e); and
5. What order Council is seeking from the Tribunal based upon the statements at the bottom of page 2 and top of page 3 of the Council's letter to VCAT dated 22 November 2011.
Accordingly, this matter was set down for a further hearing on 14 February 2012 where the parties addressed me on these matters. Following this hearing, I requested the Applicant to provide written advice from Mr R Galbraith, arborist about the impact of the amendments upon the River Red Gum tree and any changes required to the tree management plan endorsed by the Council on 10 January 2012. This written advice was received by the Tribunal on 20 March 2012.
The submissions and information provided has been taken into consideration in determining the appropriateness of the proposed changes to the planning permit.

In December 2009 the Tribunal approved a seven storey building with two levels of basement car parking. This approval incorporated the deletion of two residential floors reducing the number of apartments by approximately 18 to a total of 90 apartments, but retaining the total number of car spaces proposed at that time. The Tribunal stated the parking provision would be as follows:
- Bed sits - no car parking
- 54 one bedroom apartments with 18 car spaces
- 36 two bedroom apartments with 36 car spaces
- Office with 30 car spaces
- Café with 1 car space
The Tribunal commented that it considered this provision of car parking is barely adequate. The Tribunal also urged the Council and the Applicant to continue to discuss altering Charles Street from a one-way street to a two-way street between High Street and the access ramp, particularly if the development attracts many visitors.

The Council issued the permit on 13 January 2010. On 18 June 2010, the Council endorsed plans in accordance with condition 1 that also contained the first amendments to the plans under a secondary consent by the Council. The approved changes included:
- Replacement of the first floor office with 15 dwellings (7 x bed sits and 8 x one bedroom)
- Altered resultant level six to be similar to original level 6 footprint
- The communal courtyard removed from level 2 and repositioned at level one given the removal of the office space[2]
On 14 January 2011, the Council endorsed a further set of amended plans by secondary consent. The approved changes included:
- Increasing the number of dwellings,
- Dividing the office floor space into three tenancies with an associated communal service area, lobby and access,
- Increasing the number of dwellings by providing two additional dwellings and modifying two apartments from one bedroom to two bedroom, and splitting two apartments into four apartments, and
- Extending the lower basement level to mirror the upper basement level envelope and subsequently increasing the number of car spaces by 13 from 96 to 109 spaces.
On 10 January 2012, the Council endorsed a tree management plan prepared by Galbraith and Associates in accordance with condition 7 of the permit.

Mr Song explained the amendments proposed to the plans now include:
- A change of use from office to restricted retail (showroom) for the three ground floor tenancies and a minor reduction in area from 720 square metres to 700 square metres. Proposed hours of the showrooms will be 9am to 6pm Monday to Wednesday, 9am to 9pm Thursday to Friday and 9am to 5:30pm Saturday and Sunday.
- The allocation of car parking revised as follows and the provision of two additional car spaces.

Revised layout for the restricted retail tenancies and associated lobby, stairs, services, bathrooms/amenity facilities. The commercial lift will be deleted with the two residential lifts retained. Minor changes are proposed to the entrances and the finished floor levels will be slightly raised.
The café tenancy reduced from 270 to 140 square metres.
Bicycle parking to the east side of the building distributed to different locations.
Modifications to the internal courtyard retention of the commercial outdoor area with a reduced size.
New planter box and screening trees adjacent to the rear yard of 10 Charles Street.
Canopy over first floor communal courtyard and north facing hallway glazing at all levels for solar control.
Internal and external modifications to layout of apartments, windows, balconies and setbacks to all levels, mainly to the north and south sides at sixth floor level.
Modifications to the basement layout including the location of car spaces, bike spaces, lobby, services etc. This also includes the deletion of one disabled space and two motorbike spaces.

Nature of considerations under section 87A

Section 87A allows a permit holder to request the Tribunal to amend a permit issued at its direction, and the Tribunal may amend the permit "if it considers it appropriate to do so". The nature of the amendments can be clarifying amendments or more substantive amendments to facilitate a reasonable change in the development or use permitted. This is a wide discretion which means the amendments before me must be assessed on their own merits.

Mr Song explained the proposal includes an additional two car spaces in an altered basement layout. The Council is not supportive of this for two reasons:
1. The higher rate of car parking provided on the site and the disregard of sustainable planning policy; and
2. The car spaces are not easily accessible.
I will deal with each of these concerns of the Council in turn.

The Council officer report explains the increase of two car spaces would increase the rate of parking to 0.94 spaces per dwelling. It is Council's view that this is inconsistent with State and local planning policies that encourage sustainable transport options for sites located on principal public transport routes and in and around principal activity centres. The officer report goes on to state:

As such, it is considered the surplus of 14 car spaces should be used for a small provision of visitor spaces on site, having regard to the existing future on street car parking supply which is already considered to be close to capacity. Half of these car spaces should be allocated to visitor car parking and the remainder can be allocated to individual dwellings.

...The proposal for two additional car spaces is not supported again having regard to the high rate of car parking provided on site and disregard of sustainable planning policy.

Whilst there is no doubt there is support in both State and local planning policies for reductions in car parking, particularly within or close to activity centres and the principal public transport network, the previous Tribunal decision commented it strongly supported policies to encourage lesser car usage "provided that they are realistic".
The Council's analysis of this request to amend the permit is on the basis that there are 22 approved commercial car spaces (one café space and 21 office spaces) and this proposal is seeking a total of 8 commercial spaces (one café space and 7 restricted retail spaces). Mr Song pointed out that the difference between the two is 14 spaces, and hence the Council is seeking seven visitor spaces and seven residential spaces.
Mr Kiriakidis stated that the Council has incorrectly calculated the car parking, and this appears to have stemmed from a summary of the car parking provision provided by the architect as part of the explanation to the changes of the plan in this section 87A application. Mr Kiriakidis' view is that there were never 22 commercial spaces as the secondary consent plans of 14 January 2011 contained 14 commercial spaces (1 café space and 13 office spaces). Therefore, there is an error in the Council's assessment and the starting point is wrong as there is in fact no spare car parking spaces available.
Mr Cicero stated the discretion to be applied here is pursuant to clause 52.06, which relates to the provision of residential car parking spaces. He pointed out there is no reference in clause 52.06 to visitor car parking spaces.
Mr Cicero submitted the decision to reduce the car parking to below the standard rates, particularly the residential car parking rate, has already been made in the Tribunal's previous decision. Therefore, Mr Cicero stated the discretion in this case is whether the car parking provision at a rate of 0.94 spaces per apartment is acceptable. As the number of apartments are the same as those contained in the secondary consent plans, essentially the discretion is whether there should be more car parking provided as part of this development.
Mr Cicero and Mr Kiriakidis both suggested that a matter to consider as part of the decision guidelines is the clause 55 rate for residential apartments (as a guide). What is proposed is close to one car space per one or two bedroom apartment and, to the extent that it is relevant, what is proposed is therefore generally consistent with clause 55.
I asked Mr Kiriakidis about clause 55 making a distinction between residential parking and visitor parking as there is no mention of this in his expert evidence. He stated that this was originally assessed as part of the previous Tribunal decision and was contained in his expert evidence presented at that hearing. Therefore Mr Kiriakidis is relying upon that as it was dealt with previously and he is confident that nothing has changed to any significant degree so any visitor car parking can be accommodated on the street.
In Mr Kiriakidis' evidence report at the previous Tribunal hearing, he had submitted an empirical visitor assessment and concluded that there were sufficient vacancies on street to accommodate the demand. In his opinion there was no cross-examination on this point and "it was a non issue". During this hearing, Mr Kiriakidis stated that he believed the bigger issue is the new showroom customer demand. He estimates this will be a peak of three customers on a weekday and six customers on a weekend day. Based on the 2009 on-street parking survey, Mr Kiriakidis submitted the 76-79% occupancy is moderate and the key issue is the actual number of vacancies available. He stated the proposed customer car parking can be accommodated based on the vacancies. In this case, I am persuaded by and accept Mr Kiriakidis' expert evidence.

The Council's traffic engineer expressed concern that vehicles attempting to park in the two new spaces that are located in the lower basement level in what was previously an unobstructed 6.6 metre wide accessway will need to either reverse in or out of the spaces in order to turn their vehicle to use the two-way ramp. It is Council's view such an outcome would be unsatisfactory and therefore these spaces should be deleted. Mr Kiriakidis stated these spaces are technically compliant with the planning scheme in terms of their design, hence it is a matter of judgment as to whether or not they are acceptable. Mr Kiriakidis acknowledged some reversing is required, but stated he is comfortable with the concept of a vehicle driving in in a forward direction and exiting the space by reversing approximately 10-15 metres to the two-way ramp. He acknowledged on the one hand this distance may seem to be unreasonable, but pointed out that it is not significantly more than reversing out into a 6.4 metre wide aisle. I am persuaded by Mr Kiriakidis' evidence that this arrangement is workable and the occupiers of these car spaces will become familiar with the circumstances required to access these spaces.

In response to my query, it was agreed by the parties that car spaces 47 and 48 would be nominated as residential and two car spaces south of the accessway would be nominated as commercial spaces.

In response to my queries about other changes to the proposal, the submissions of the parties have persuaded me as follows:
The setback to 10 Charles Street has changed because of the column locations in the basement and the Council is of the view there are no adverse amenity impacts that arise from this change.
The loss of various highlight windows have no unreasonable impact upon the internal amenity of the apartments.
The endorsed tree management plan includes the following statement:

With respect to the tree's canopy, the long low branch going to the south-west will have to be pruned back by approximately a third to gain the necessary clearances. It should be ensured that the branch is pruned back to a vigorous internal vertical branch so that some five significant internal branches on this bough will remain intact after the proposed pruning. The bough's survival is unlikely to be jeopardised. Minor pruning will be required on a couple of upper branches for the terraces. Major dead wood should also be removed. All the pruning must be undertaken according to the Australian Pruning Standard AS 4373:1996.

Mr Galbraith has advised the above pruning is yet to be undertaken but if it is undertaken there will be no encroachment of the building into the canopy of the River Red Gum, nor will there be any adverse impact on the amenity or longevity as a result.
On the first day of the hearing, Mr Cicero submitted a suggested amended permit that deleted the majority of the items contained in condition 1 on the basis that these details were shown in the secondary consent endorsed plans. However, the Council's letter to the Tribunal dated 22 November 2011 requested that some of these items remain included. The conditions were discussed on the second day of the hearing and the parties agreed conditions 1(h) and 1(i) should remain in the permit; condition 1(l) should be changed to refer to the deletion of the hatching outside of the title boundary; and condition 1(p) should require the basement bicycle locations, dimensions and access arrangements to be specified. As such these matters have been included as additional items in condition 1 beginning at item (f).

[1] The words contained in Mr Song's written submission

[2] Extracted from the history section of the delegate report for the secondary consent plans of 14 January 2011.

Ashwerth Pty Ltd v Stonnington CC [2012] VCAT 541 (30 April 2012)

Ashwerth Pty Ltd v Stonnington CC [2012] VCAT 541

At a glance

Court

Decision date

Source

Judgment (40 paragraphs)

Parties

Cases Cited (1)

Ashwerth Pty Ltd v Stonnington CC [2012] VCAT 541 (30 April 2012)