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[2001] VCAT 1925
appellant. Tribunal varied the Responsible Authority's decision: a permit was directed to be issued allowing the food and drink premises with reduced car parking pursuant to Clause 52.06 in accordance with...
Bengold sought to increase restaurant seating from 50 to 150. Kingston issued a permit with a condition requiring Bengold to pay Monash $165,000 to use/expand a Monash public car park. Bengold produced empirical parking surveys showing ample public parking; Kingston's own surveys confirmed under-utilisation. The Tribunal found the cash-in-lieu condition unlawful because it did not fairly and reasonably relate to the permit and was not supported by the evidence; it deleted the condition, directed the permit to issue without it, and ordered both councils to pay Bengold's costs because their position lacked a tenable factual or legal basis and was influenced by an improper motive.
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Bengold Pty Ltd sought review of Condition 3 of Planning Permit No. KP00/247 issued by Kingston City Council. The disputed condition required Bengold, prior to commencement of the proposed use, to pay Monash City Council a cash-in-lieu contribution of $165,000 to enable use or expansion of a Monash-owned public car park at the north-west corner of Centre Road and Thomas Street, Clayton South (the Thomas Street car park) (para 2). Bengold proposed to increase seating on the first floor from 50 to 150 patrons; Clause 52.06 would generate a theoretical additional demand of 60 car spaces (0.6 per seat) (paras 6, 10). On-site there were only 17 spaces; no additional on-site spaces were proposed (para 7).
2 cited instruments linked from this judgment.
Monash objected, chiefly arguing that Bengold should pay a contribution to Monash for use of Monash's public car park, and sought a contribution of $165,000 calculated as 15 spaces at $11,000 per space (a 25% discount of the full theoretical amount) (paras 12, 21). Kingston's planning officers conducted parking counts in the Thomas Street car park and also considered the applicant's surveys. The Kingston officer reported that the public car park was largely under-utilised during survey times and could accommodate the restaurant's likely demand (paras 16-19). Bengold provided empirical evidence and expert evidence from a traffic engineer that parking generation for comparable restaurants is lower than the 0.6 per seat rate, and that adequate public parking was available in the Thomas Street car park and other nearby car parks at relevant evening times (paras 23-26).
The Tribunal applied the Clause 52.06 decision guidelines and the King Ranch test on validity of conditions, found the cash-in-lieu condition unsupported by the evidence and motivated by considerations outside the proper planning exercise, deleted Condition 3, directed a permit be issued without that condition, and ordered the City of Kingston and City of Monash to pay Bengold's party/party costs jointly and severally, to be assessed on County Court Scale D (Order; paras 27-41).
There are two strands to the Tribunal's reasoning.
First, on the planning merits: Clause 52.06-5 permits a reduction or waiver of the parking table requirement where the applicant satisfies the responsible authority with reference to enumerated considerations, including availability of car parking in the locality, empirical assessment of demand, and sharing of parking (para 11). The Tribunal accepted Bengold's empirical evidence and expert opinion showing that real-world parking generation for comparable restaurants was in the order of 0.45–0.5 spaces per seat (less than the scheme's 0.6), and that public car parks (notably the Thomas Street car park and other Cooke Street car parks) had substantial available capacity at relevant evening times (paras 23-26). Kingston's own parking surveys showed under-utilisation (para 16-19), and its officer expressly acknowledged that the public car park should more than accommodate likely demand (para 18). On that factual basis, a reduction in car parking was justified under Clause 52.06 decision guidelines; a cash-in-lieu requirement to replace or fund off-site parking was not supported by the evidence (paras 24-29).
Second, on legal validity of the condition: the Tribunal applied the established test (King Ranch) that a planning condition must fairly and reasonably relate to the permitted development and must not be imposed for an ulterior motive (para 27). The Tribunal found the councils' imposition of the cash-in-lieu condition failed that test. The nominated cash figure arose from Monash's insistence that non-ratepayers should contribute to Monash infrastructure and from an arbitrary discounting exercise (25% of the theoretical $660,000), rather than an assessment of the actual shortfall or an evidentiary basis (paras 21, 28, 32). The Tribunal treated the officer's suggestion that the contribution could help fund expansion at no. 33 Thomas Street as evidence of an ulterior motive (para 38). Thus the cash-in-lieu condition neither fairly and reasonably related to the permit nor was grounded in proper planning reasons; it was deleted (paras 28-29).
Finally, the Tribunal addressed costs. While the usual rule is that parties bear their own costs (VCAT Act s.109(1)), s.109(3) permits departure where, among other things, parties have advanced claims with no tenable basis in fact or law, or other relevant matters exist. The Tribunal concluded that both Kingston and Monash had advanced untenable positions in light of the empirical evidence and Kingston's own officer report, and that an ulterior motive (Monash seeking to recover funding from a non-ratepayer) was a relevant matter justifying departure from the usual rule (paras 30-41). Accordingly it ordered costs against both councils.
Before this decision, two relevant principles were settled and applied: Clause 52.06 decision guidelines required a fact-based justification for any reduction of parking standards; and the King Ranch test provided the controlling legal framework for assessing validity of conditions (para 27). The Tribunal explicitly engaged both.
After the decision, the practical effect is reinforcement of two points for Victorian planning practice:
Empirical and site-specific parking surveys and proper expert evidence can justify reductions in prescribed parking rates under Clause 52.06 and will be decisive where they show sufficient capacity in local public car parks at relevant times (paras 23-26).
Cash-in-lieu contributions must be founded on a real planning nexus to the permit and an evidentiary assessment of shortfall; arbitrary or politically motivated demands by neighbouring councils (for recovery of past infrastructure costs or to treat non-ratepayers differently) will be vulnerable to challenge on the King Ranch test (paras 27-29, 38).
The decision therefore clarifies that off-site public parking availability is a legitimate and distinct consideration from private off-site parking reliance, and that local government boundary or ratepayer arguments cannot substitute for evidence demonstrating need (paras 13-14).
Tribunal quoting King Ranch (para 27): "(i) a condition must fairly and reasonably relate to the permitted development... (ii) a condition must not be imposed for an ulterior motive."
Officer's acknowledgement of under-utilisation (para 18): "The survey results clearly show the public car park as largely under-utilised during the survey times... it is expected that the public car park should more than accommodate the likely demand generated by the restaurant."
Tribunal's conclusion that there's "no justification whatsoever" for a cash-in-lieu payment when a reduction is justified (para 28).
Tribunal on costs (paras 36-41): the councils had "made a claim that has no tenable basis in fact or law" and there was an "ulterior motive" in seeking the cash-in-lieu payment.
This decision is most relevant where:
An applicant seeks a permit to increase a use that generates additional parking demand (e.g. restaurant, entertainment venue), and the applicable planning scheme contains a prescriptive parking rate with a mechanism (Clause 52.06) to reduce or waive that rate.
The applicant reliance is on public off-street parking (council car parks) in the locality rather than private parking agreements, and there is empirical evidence (surveys, expert evidence) about actual parking utilisation at times relevant to the proposed use.
A neighbouring council (or other public landowner) seeks a cash-in-lieu contribution to fund its car park or expansion, but the contribution is not calculated on the basis of an assessed shortfall or is arbitrarily derived or discounted.
A permit authority imposes a condition that appears to be motivated by recoveries from non-ratepayers or political considerations rather than by a planning assessment.
Under those circumstances, this decision supports deletion of cash-in-lieu conditions that lack nexus to the actual parking shortfall and supports awarding costs where opposing councils persist in untenable factual or legal claims.
This decision is a VCAT Planning List judgment and applies principles already recognised (Clause 52.06 decision guidelines; King Ranch). The Reasons themselves cite earlier Tribunal and judicial authorities (Erac, King Ranch, Crichton) and apply them (paras 13, 27, 29). The decision does not record subsequent appellate treatment or later judicial consideration in this text. Practitioners should therefore treat Bengold PL v Kingston CC as persuasive Tribunal authority on fact-specific parking and condition validity in Victoria, but should check subsequent reported decisions or any appeal (not recorded here) for any development on these points.
Quantification methodology: The Tribunal criticised the arbitrary discounting of the theoretical contribution but did not set out a prescriptive methodology for calculating an appropriate cash-in-lieu sum when one is warranted. Where a true shortfall exists, responsible authorities will need to show how they reasonably calculate a contribution based on assessed shortfall, not just apply policy figures or discounts (paras 21, 32(v)).
Temporal change and future demand: The decision accepts surveys at relevant times as decisive. In different contexts, questions may arise as to the necessary breadth of survey data (times, days, seasonal variation) and what constitutes a sufficient empirical base to displace the scheme rate.
Inter-municipal equity and funding: The Tribunal rejected Monash's position premised on ratepayer fairness following municipal boundary changes (para 14), but the broader policy question, how municipalities should fund shared infrastructure used by non-ratepayers, remains a governance issue for councils and the legislature rather than a legal solution within a single permit decision.
Costs standards in planning litigation: The Tribunal awarded costs against councils for advancing untenable positions and for ulterior motive. It remains open how frequently s.109(3) will be applied in planning lists where councils defend policy-driven positions; this decision indicates willingness to depart from the usual costs rule in clear cases but does not supply a precise test for when that will occur beyond the statutory factors (paras 30-41).
Concluding practical note: For permit applicants seeking reduced parking, robust empirical surveys and clear expert evidence on parking generation and local car-park utilisation are decisive. For responsible authorities or neighbouring councils seeking cash-in-lieu, decisions should be clearly evidence-based, show the calculus linking the contribution to an assessed shortfall, and avoid motivations tied mainly to non-ratepayer status or political considerations.
Planning; Conditions review; Permit required under cl.52.06 for waiver of parking spaces generated by increase in restaurant capacity from 50 to 150 patrons; condition requiring $165,000 cash in lieu of parking contribution to be paid to neighbouring municipality for use of its public car park; validity of condition; costs awarded against both councils pursuant to Victorian Civil and Administrative Tribunal Act 1998, s 109(3)(c) and (e).
1. The decision of the Responsible Authority is varied. A permit is directed to be issued by the Responsible Authority for the land at 370-376 Clayton Road, Clayton South which allows development and use of this site (food and drink premises) with reduced car parking requirements pursuant to Clause 52.06 of the Kingston Planning Scheme, in accordance with endorsed plans. The Tribunal directs that the permit must be subject to the conditions contained in Planning Permit No. KP00/247 issued on 3 May 2001 excluding condition 3 thereof.
2. The Respondents City of Kingston and City of Monash must jointly and severally pay Bengold Pty Ltd party/party costs of these proceedings to be assessed on County Court
Scale D to be taxed by the Registrar in default of mutual agreement - such costs to be paid no later than 21 days following taxation by the Registrar.
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For the Applicant for Review: Mr A Southall QC instructed by Piva Lawyers.
Mr Southall called Mr C Butler, Traffic Engineer of Grogan Richards Pty Ltd to give parking evidence.
For the Responsible Authority: Mr Paul McAleer, Town Planner of Kingston City Council.
For the Respondent/Objector: Mr John Rantino, Solicitor of Maddock Lonie and Chisholm.
1. This was an application under Section 80 of the Planning and Environment Act 1987 for review of Condition No. 3 of the Responsible Authority's permit (in Application No. KP00/247) for the land at 370-376 Clayton Road, Clayton South to allow development and use of this site (food and drink premises) with reduced car parking requirements pursuant to Clause 52.06 of the Kingston Planning Scheme, in accordance with endorsed plans.
Prior to the commencement of the proposed use the applicant or owner of the site must pay to the City of Monash the required cash in lieu contribution to allow the use of the City of Monash owned public car park located on the north-western corner of Centre Road and Thomas Street, Clayton South, in association with proposed use. The City of Monash fee has been calculated as a discounted percentage of the additional number of car parking spaces required pursuant to Clause 52.06-6 of the Monash Planning Scheme and on this basis the contribution be $165,000.00.
3. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Anthony Southall, QC requested the Tribunal to amend the application for permit by substituting the words `Bengold Pty Ltd' for that which had originally accompanied the application. The Application for Review had already been lodged in the name of Bengold Pty Ltd.
4. There was no objection to the substitution of this name change. Being also of the opinion that such substitution was appropriate, the Tribunal made the amendment in the manner requested.
5. The Tribunal finds the following description of the site and locality, taken from written submissions, to be an appropriate one:
The subject site is situated on the south-east corner of Clayton Road and Centre Road, Clayton South on the corner of two major roads at the south end of the Clayton Shopping Centre.
The land is improved with a two storey building. The ground floor is occupied by two retail premises.
The subject site for the purposes of this review application is first floor of the building on the land. It is currently unoccupied. Up until some time ago the site operated as a restaurant pursuant to a permit which limited patron numbers to 50 persons.
Seventeen car spaces are available to the first floor, accessed via the ground level via a ramp.
The ground floor of the above address comprises two (2) retail premises.
The subject site is located within the local Clayton Shopping Centre, which comprises a mix of retail and commercial type uses. The existing building form comprises either single or double storey buildings.
The Clayton Railway Station is located approximately 500 metres to the north of the subject site.
6. Planning Permit No. 4804 for a restaurant was issued by the former City of Oakleigh on 28 April, 1989. Condition 9 of the above planning permit states as follows:
The seating capacity of the use hereby shall not exceed 50 persons at any one time and no provision shall be made for services to persons not seated at tables provided.
7. The Tribunal adopts the following description of the proposal, taken from Mr Paul McAleer's written submission:
It is proposed to continue the existing food and drink premises (restaurant) use on the first floor level of the site and increase the seating capacity from 50 persons to 150 persons.
The 530 square metre premises (approx) would comprise a restaurant seating area (150 seats), a dance floor and stage area, kitchen, bar area, storage and amenities areas.
The proposed hours of operation would be between 5pm and 3am seven days a week under the current application. The applicant has also advised that it is also preferred that the current hours on the existing planning permit No. 4804 be maintained for 50 persons between 7am and 5pm seven days per week. The applicant has also advised that that it is not intended to use the premises for the purpose of functions, weddings and other like reception activities.
It is proposed to operate the restaurant on the site with an on-premises liquor license which the premises currently holds.
There are seventeen (17) existing car parking spaces on site to the rear of the existing premises on the first floor level which are accessed via an access ramp and the rear laneway. It is proposed to retain these car parking spaces. No additional car spaces are proposed on site. The applicant has also advised that patrons could utilise the eleven (11) ground floor car spaces located along the right of way, in the evening/night time hours, which are currently used by the ground floor retail occupancies during the day. The applicant has also further highlighted the ninety-six (96) car space public car park located on the north side of Centre Road, to the north east of the subject site, which is expected could be utilised by patrons of the restaurant.
8. The immediate surrounding land is zoned Business 1, as is the subject site. Residential properties are located within 30 metres of the subject site as is the commencement of a Residential 1 Zone, with dwellings (approximately 30 metres and beyond) to the south of the site along Clayton Road, Olive Street and Sydney Street, Centre Road (60 metres to the west) and Centre Road and Thomas Street (within 80 metres to the north-east). There is no restricted resident parking in these side streets. A number of factory/warehouses are located to the east of the subject site along Olive Street and James Street, which are located either within the surrounding Business 1 Zone, or within the nearby Industrial 1 Zone.
9. In a Business 1 Zone, a permit is not required to use land for the purpose of a food and drink premises (restaurant), however a planning permit is required for a reduced car parking requirement pursuant to the Kingston Planning Scheme.
10. Pursuant to Clause 52.06 of the Scheme, 0.6 car parking spaces are required for every additional seat made available to the public. As 100 additional seats are proposed, a standard rate of 60 car parking spaces would be generated by the operation of the clause.
11. The table at Clause 52.06-5, which sets out the number of car spaces required for uses not covered by a parking precinct plan or another clause, highlights that a permit may be granted to reduce or to waive the number of car spaces required by the table. Before the requirement for car spaces is reduced or waived, 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.
12. The City of Monash objected to the proposal, largely based on the intended shared use of a 97-space public car park diagonally opposite at the north western corner of Centre Road and Thomas Street (`the Thomas Street car park'). Monash argued:
(i) The restaurant will enjoy a `similar benefit' to traders within the Clayton Shopping Centre on the Monash side of Centre Road (to the extent it proposes to avail itself of the Council owned car park to accommodate its patrons). However, without recovering a car parking contribution under the permit sought by the restaurant from Kingston, Monash is unable to treat the restaurant in a similar manner as the other traders when a special rate is levied to expand the Thomas Street car park. Monash has no power to levy a special rate over land within the City of Kingston.
(ii) The Applicant relies heavily on the utilisation of a car park for which it or its predecessor land owners have made no contribution. The City of Monash is not responsible for the provision of infrastructure to the people of Kingston.
(iii) Monash regards the imposition of Condition 3 as the most equitable solution to the use of Monash public car parking facilities by a Kingston land user, and submits that it would be inequitable, unreasonable and contrary to orderly and proper planning for the restaurant to be granted a permit allowing a reduction in the minimum number of car spaces or not to replace the spaces it uses in the public car park.
(iv) If the Applicant was allowed to use Monash's car park it would mean that spaces that would otherwise be available to the traders of the Centre will be eliminated. This would seriously prejudice opportunities for business to expand or to attract new businesses.
(v) The situation now before the Tribunal is not unlike an Applicant seeking to rely on car parking being provided on nearby private property. In the normal course of events a Tribunal would not contemplate granting a permit where there is such reliance unless the Applicant has entered into a binding and legally enforceable agreement with the private land owner to use that owner's land.
(vi) Monash is, in this case, being asked to make its car park available - a car park which is paid for and which it provides for its ratepayers. If, as the evidence shows, the Applicant needs to use this car park for its patrons then it should pay a reasonable sum towards its future extension (Tribunal emphasis). There is no other way to obtain this contribution because a special rate scheme is out of the question.
(vii) The rationale behind the imposition of the condition therefore is to balance what the Council sees as an inequity in its inability to implement a special rates scheme which would cover a non-rate payer.
13. It is necessary to clarify two matters at the outset. Firstly, use of public council car parks is not the same as an Applicant seeking to rely on car parking being provided on nearby private property. Each situation has different considerations, when the `availability of car parking in the locality' is addressed under Clause 52.06-5, dot point 2. Examples of this are seen in Erac v Melbourne City Council [1991] VCAT 1550 (31 August 1999).
14. Secondly, as discussed with the parties during the hearing, the argument:
The applicant relies heavily on the utilisation of a car park for which it or its predecessor land owners have made no contribution. The City of Monash is not responsible for the provision of infrastructure to the people of Kingston.
is fallacious. At the time the 97-space public car park was constructed from council rates, the City of Oakleigh was the Responsible Authority and the ratepayers who are now be divided into Monash and Kingston were then in the same municipality of Oakleigh. In other words, the construction of and payment for the Thomas Street public car park preceded amalgamations and municipal boundary realignments.
15. The Applicant commissioned a car parking assessment from a traffic engineer which it submitted to Council. Kingston thought the assessment failed to adequately justify the proposed car parking provision and arrangement, so it decided to further investigate the proposed provision so as to provide a more conclusive planning argument for or against the proposal.
16. Kingston Council planning officers conducted a series of car parking counts within the 97-space Thomas Street car park. The surveys were carried out at 5.00pm, 6.00pm and 7.00pm on Friday 2nd and Friday 9th February 2001. The survey times were considered most applicable given that the proposed hours of operation under the current application would be between 6pm and 3am, and Friday evening was expected to generate the greatest coinciding pressure for car parking from both the proposed use and existing shopping centre.
17. The results of the car parking surveys were as follows:
18. Kingston's survey results showed that there would be car parking spaces available for the proposal, even at peak times of coinciding pressure. Their delegate planning officer clearly acknowledged this in his planning report:
The survey results clearly show the public car park as largely under-utilised during the survey times. With the demand from shopping centre customers for these car spaces expected to taper off beyond the survey hours, it is expected that the public car park should more than accommodate the likely demand generated by the restaurant.
19. However, as the planning officer continued to explain in his report:
Although it is accepted that the applicant should pay a cash in lieu contribution to the City of Monash (as suggested by the City of Monash) it is suggested the amount of contribution be reduced so that it is a fair reflection of usage by the restaurant. Council considers that the proposal should help rejuvenate what is currently an under-utilised section of the shopping centre .... Further, as previously discussed with the City of Monash, the cash in lieu contribution could also assist in the provision of additional spaces at no. 33 Thomas Street therefore increasing the overall car parking spaces available in the immediate area and reducing the overall proportion of car spaces taken by the proposal.
20. It was considered that through the expansion of the overall available car parking spaces and area that the proposal could be justified as the expected pressures/congestion would be diluted as a proportion of the now expanded car park. Monash had already entered into a purchase of land adjoining the Thomas Street public car park at no. 33.
21. Although Kingston accepted the Applicant should pay a cash in lieu contribution to the City of Monash (as suggested by the City of Monash), 60 spaces (generated on the `standard rate' of 0.6 for a 100 seat increase in seating capacity) at $11,000 each amounted to $660,000.00. The figure being so high, Monash and Kingston agreed that the required cash in lieu contribution be arbitrarily discounted down to 25% of the total. Monash wrote to Kingston on 2 April 2001, stating "a cash in lieu contribution of $165,000 representing 15 car spaces (based on $11,000 per space) would be acceptable".
22. The cash in lieu rate of $11,000 per car space derives from Monash's Policy A Guide to Car Parking in the City of Monash dated 6 February 2001.
23. The Applicant is the only party that has provided empirical evidence, able to be tested at the Tribunal. It tabled parking survey evidence from CS Traffic Surveys to Kingston and oral tested evidence of Mr Butler from Grogan Richards in support of its case.
24. Their evidence supports the reduction of car parking by:
(i) proving that there is ample availability of car parking on the street and in public car parks within the vicinity of the site to accommodate the excess parking, pursuant to dot point 2 of cl.52.06-1;
(ii) proving that the actual car parking generated by restaurants typical of the proposed is less than 0.6 spaces per patron specified in the scheme and is in the order of 0.45 to 0.5 spaces per patron pursuant to dot point 9 of cl.52.06-1; and
(iii) proving that there is a reduction in car parking demand due to the sharing at night of eleven ground level car spaces used by the shops during the day, pursuant to dot point 4 of cl.52.06-1.
25. Mr Butler's empirical evidence proved at the `worst case' scenario of Friday and Saturday evenings:
(i) conservatively comparable data taken from surveying a busy La Porchetta restaurant at Mill Park showed an actual generation rate of 0.45-0.5 spaces per seat, rather than the 0.6 standard rate in the cl.52.06-5 Table;
(ii) the peak occupancy parking rate occurred on Saturday nights, whereas Friday nights was the peak parking confluence period with the Clayton shopping centre;
(iii) on Friday nights, when the proposal will generate 27 spaces, there were 43 available public spaces within 100 metres walk (mostly in the Thomas St car park);
(iv) on Friday nights, between 5.00pm and 7.00pm, 41% of parking spaces within the Thomas Street car park were available and after 7.00pm, 41%-58% of parking spaces within the Thomas Street car park were available;
(v) on Saturday nights when the proposal will generate 44 spaces, there were 74 available public spaces within 100 metres walk (mostly in the Thomas Street car park);
(vi) on Satuday nights, between 5.00pm and 7.00pm, 72% of parking spaces within the Thomas Street car park were available and after 7.00pm, 71% of parking spaces within the Thomas Street car park were available;
(vii) more spaces again were available within a 200 metre radius in the two Cooke Street car parks, which each hold 31 and 150 spaces respectively;
(viii) there could be shared use of spaces by shoppers already parked who would patronise the proposed restaurant;
(ix) there was so much space available in the Cooke Street car parks closer to the heart of the Clayton shopping centre, that the fear of future businesses seeking to expand or establish being prejudiced by the proposal's use of the Thomas Street car park was unjustified and without foundation;
(x) although shopper survey perception is that Clayton Road is parked out
on-street, that is accurate for on-street parking, but does not reflect the utilisation of off street council car parks.
(i) the CS Survey data provided to Kingston, which shows that in the same period last year, the on street parking spaces in the area to the south of the restaurant in the industrial areas were also available after normal working hours; and
(ii) the sharing at night of eleven on site ground level car spaces used by the shops during the day;
it is patent that a reduction in car parking spaces is clearly justified under the decision guidelines of cl.52.06-1.
27. In their editorial comment at 1 AATR 194, the editors quoted a body of Tribunal decisions on cash in lieu payments, summarising the test of validity as laid down in King Ranch Australia Pty Ltd v Cardwell Shire Council (1983) 9 APAD 1 at 5:
(i) a condition must fairly and reasonably relate to the permitted development, that is there must be a real connection between the permission granted and the limitation placed upon it;
(ii) a condition must not be imposed for an ulterior motive.
28. Having regard to the clear evidence presented to the Tribunal, there can be no justification whatsoever for imposition of any condition requiring a cash in lieu payment for the provision of parking spaces, when a reduction is justified.
29. The condition is neither reasonably nor validly imposed on the Permit and should be removed, as it does not go to the root of the permission. Nor should it go to the root of the permission, following the ratio set out in Crichton v City of Moorabbin (1992)
[1992] VicRp 69; 8 AATR 172 @ 185,6, where Ashley, J. held:
The authority should not be able to rely upon a consideration which was outside power as a basis for saying that it would not have granted the permit.
30. Mr Southall for the Applicant for Review/Permit Applicant applied for costs on two bases. The first basis was for procedural deficiencies caused by the Responsible Authority and claimed pursuant to the Victorian Civil and Administrative Tribunal Act 1998, s.109(3)(a)(ii), failing to comply with this Act, the regulations, the rules or an enabling enactment in that:
(i) Kingston failed to provide Bengold with the names of objectors to the permit which delayed Bengold in serving its application for review documents; and
(ii) Monash failed to reply with its statement of grounds within the fourteen day time limit advising that it wished to be added as a party to the appeal. This resulted in a lengthening of the hearing from a half day two party appeal as projected by the Responsible Authority to a two day appeal based upon three parties, thus incurring additional Queens Counsel's fees.
31. Whereas the first claim really boils down to a claim for a second day of counsel appearances caused by delay and an inaccurate assessment of a hearing time, Mr Southall's second claim for costs involves a substantive claim for the entire cost of the proceedings based on the VCAT Act 1998, s.109(3)(c) "the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law" and s.109(3)(e) "any other matter the Tribunal considers relevant".
32. The facts upon which Mr Southall bases this claim are:
(i) at no time based on the empirical data provided by CS Traffic Surveys of
8 August 2000, did Kingston have any reason to impose a cash-in-lieu requirement for reduced parking provision by the subject proposal on the subject land;
(ii) at no time based on Kingston's own empirical data set out in its planning officer's report, did Kingston have any basis for including a cash-in-lieu condition in the permit;
(iii) the Grogan Richards evidence presented to the Tribunal only supplemented and confirmed the above evidence available to the Responsible Authority before it issued the permit;
(iv) Kingston delegated its decision-making responsibility to Monash's urging for monetary contribution to its public car parks because the permit holder was not a Monash ratepayer; and
(v) the nomination of the cash-in-lieu amount was arbitrary and not based upon any empirical data. The way the exercise should have been undertaken (if and when justified) is to assess the shortfall in car parking spaces provided before the cash-in-lieu amount is calculated.
33. Mr Rantino for Monash and Mr McAleer for Kingston urged me to apply the "usual rule" in the Planning List of the Tribunal which is that "each party is to bear their own costs in the proceeding" pursuant to the VCAT Act 1998 s.109(1).
34. Further, Mr Rantino urged me to abide by the usual rule, due to "the nature and complexity of the proceeding" as set out in s.109(3)(d).
35. Pursuant to s.109(3), I am satisfied that it is fair to diverge from the usual rule in this particular case, for the reasons put by Mr Southall QC. The case is not a complex one, given the clear empirical data. The decision guidelines in the planning scheme are clear and the hearing proceeded on these guidelines and on the evidence. Mr Rantino may have gone to great lengths to justify the imposition of the condition, but that was not because the issues were complex.
36. Additionally, Bengold went to some lengths to try and appease the Council, both by amending its application to commence the additional 100 seats after 5.00pm daily and by engaging CS Traffic Surveys to survey the area.
The survey results clearly show the public car park as largely underutilised during the survey times.
the evidence has shown that both Kingston and Monash have made a claim that has no tenable basis in fact or law pursuant to s.109(3)(c). The difference in the relative strengths of the claims is considerable.
38. Another matter I consider relevant favouring the awarding of costs under s.109(3)(e) is the ulterior motive exercised by the two councils for the imposition of the condition, as evidenced in the same officer's report:
Further, as previously discussed with the City of Monash, the cash in lieu contribution could also assist in the provision of additional spaces at no. 33 Thomas Street therefore increasing the overall car parking spaces available in the immediate area and reducing the overall proportion of car spaces taken by the proposal.
39. Both municipalities should bear the Permit Applicant's costs in equal proportions. The urging came from Monash's objection. But had Kingston not wished to be party to the cash in lieu suggestion, it should have issued the permit sans condition, and let Monash take the decision on review.
40. As to quantum, as the bill from Piva Lawyers dated 1 August 2001 amounts to a hefty $20,061.67, calculated on a Supreme Court Scale, I will require that it be taxed at Scale D of the County Court Scale by the Registrar of VCAT, in default of agreement by the parties.
41. I have nominated Scale D of the County Court given that the condition sought a cash-in-lieu payment of $165,000 which falls within that scale. I have also ordered that Condition 3 be deleted from the permit.
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Bengold PL
Kingston CC [2001] VCAT 1925
Tribunal varied the Responsible Authority's decision: a permit was directed to be issued allowing the food and drink premises with reduced car parking pursuant to Clause 52.06 in accordance with endorsed plans, excluding Condition 3 (the $165,000 cash-in-lieu requirement). The City of Kingston and City of Monash were ordered to pay Bengold Pty Ltd's party/party costs jointly and severally, to be assessed on County Court Scale D (Order).