Medium Neutral Citation [2001] VCAT 2234

The decision of the Responsible Authority is varied.

A permit is granted and directed to be issued by the Responsible Authority for the land at 417-419 High Street, Preston which allows :

The construction of buildings and works for a medium density housing development, comprising twelve dwelling units, in accordance with the endorsed plans and for a waiver of the car parking requirement pursuant to Clause 52.06-1 of the Darebin Planning Scheme.

The Tribunal directs that the permit must be subject to following conditions:

1. Before the commencement of the development hereby permitted plans must be submitted and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale and three copies must be provided to the Responsible Authority. The plans must be generally in accordance with the plans prepared by Petridis Cornetta, Architects, Project 00-60 submitted with the Application [No. D0579/00] and subsequent plans tendered in evidence at the hearing of Application for Review No. P50636/2001, but modified to show and include:-

(i). the location and design of all internal storage, mail boxes, garbage and recycling areas/bins;

(ii). the design details of the measures being employed to substitute for the windows deleted from the southern elevation;

(iii). additional light sources to Unit 10 by way of fenestration, sky lights or glass bricks;

(iv). pergolas and screening to the balconies of Units 8, 9 and 10 to provide improved internal solar efficiency;

(vi). the design details of the stair and entryway to provide improved visibility, access and safety for residents and visitors;

(vii). a Schedule comprising a sample board of colours, materials and finishes.

2. The layout of the site and the size of the proposed buildings and works shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or Local Law or for any other reason) without the prior written consent of the Responsible Authority.

3. Provided the Body Corporate and such other owners and occupiers as may be necessary, agree to enter into an Agreement in writing the form, terms, including the amount of contribution by the Permit Holder and other parties thereto, and other contents of which are to the satisfaction of the Responsible Authority, for the carrying out of works during the construction of the development hereby permitted by way of a refurbishment of the arcade including its surfaces and an upgrade of its lighting, the Permit Holder prior to the commencement of the development hereby permitted shall enter into such Agreement with the Body Corporate and such other owners and occupiers as may be necessary and carry out its obligations thereunder prior to the completion of the development hereby permitted.

4. All units must be designed to meet the privacy standards set out in the Techniques 5, 6 and 7 of Element 7 of the Good Design Guide for Medium Density Housing, April 1998, including protection from internal noise sources such as plant and equipment and external sources such as the arcade and High Street to the satisfaction of the Responsible Authority.

5. Before the commencement of the development hereby permitted a Landscape Plan generally in accordance with the Landscape Plan tendered in evidence at the hearing of Application for Review No. P50636/2001, prepared by a landscape architect with expertise in roof gardens shall be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan shall be endorsed and will then form part of this Permit. The Landscape Plan shall show and include:

(i). the artificial soil type, its weight, water, nutrient and drainage capacity;

(ii). a Schedule of all proposed planting, including container size and size at maturity, botanical names of all the proposed vegetation, its weight at planting and maturity, and assessment in terms of capacity to damage membranes and drainage;

(iv). the type of protective membrane to be used and its anticipated life in situ;

(v). infrastructure, including irrigation, control systems, drainage outlets and silt traps;

(vi). all surfaces clearly denoted, including mulched garden beds and hard paving such as asphalt, concrete, brick or gravel;

(vii). constructed items, including retaining walls, outdoor furniture and lighting;

(viii). edged treatment between other surfaces and garden beds;

(ix). proposed planting denoted by simple and clear graphics used to demarcate trees if any, [deciduous and evergreen), shrubs, ground covers and climbers;

(x). a legend providing clearly all information shown on the plan;

(xi). locations of any services so that conflicts with proposed planting can be minimised;

(xii). detailed information including the construction requirements of the following:

* edged treatment between other surfaces and garden beds;

* preparation of garden beds, i.e. incorporation of gypsum, cultivation mulch, etc.;

* paving including base and sub-base preparation and edge treatments;

* internal fencing including heights, materials and colours that may be used.

6. All landscaping shall be constructed or carried out in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority and thereafter managed and maintained in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.

7. The stormwater from the site shall be drained and connected to the existing stormwater system to the satisfaction of the Responsible Authority.

8. The development must comply with Criteria C1 and C3 of the Element 2 of the Good Design Guide for Medium Density Housing, April 1998, in relation to the provision of sewerage services to the satisfaction of the Responsible Authority.

9. No polluted and/or sediment laden runoff shall be discharged directly or indirectly into Melbourne Water's drains or watercourses.

10. The Permit holder must provide a copy of this permit to the purchaser of any unit hereby permitted before any Contract of Sale is signed and specifically draw the attention of such purchaser to the Note appearing hereunder entitled "Car Parking Spaces" and the prospect of a special rate being introduced by the Council in conjunction with the provision of parking by it in the area and the potential liability of the purchaser to contribute to it.

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

(a) the development and/or use is not commenced within two (2) years of the date of this permit;

(b) the development is not completed within two (2) years from the date of its commencement.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three (3) months afterwards.

If further information is required in relation to Melbourne Water's permit Condition 9 (above) please contact Nathan Acland on telephone No. 9235 21293 quoting reference 72103.

The applicable flood level for the property is 63.2 metres AHD.

A Building Permit must be obtained before the development is commenced.

The grant and issue of this Permit waiving any requirement for the provision of car parking spaces on site or on nearby land is without prejudice to any requirement that may be made by the Darebin City Council of each unit owner for contribution to a Special Rate for the provision of car parking spaces under the Local Government Act and does not prevent the Darebin City Council from proceeding with a Special Rate Scheme for the provision of parking at any time in the future. In which instance the provisions of the Local Government Act shall apply with respect to the liability (if any) and the amount of contribution (if any) of each such unit owner.

Nothing in this permit should be construed as granting any permission other than planning permission for the purpose described. It is the duty of the Permit Holder to acquaint with and comply with all other relevant legal obligations (including any obligation in relation to restrictive covenants and easements affecting the site) and to obtain other required permits, consents or approvals.

Any failure to comply with the conditions of this permit may result in action being taken to have an Enforcement Order made against all persons having an interest in the land and may result in legal action or the cancellation of this permit by the Victorian Civil and Administrative Tribunal.

Mr George Bennett, town planner, represented the Responsible Authority.

Ms Lynn Bisignano appeared in person and also represented her husband.

Mr Tony Hooper QC appeared for the Applicant for Permit/Respondent, by direct brief. He called Mr Matt Ryan, planning consultant, and Mr Henry Turnbull, traffic engineer, to give expert evidence.

1. This is an application by Objectors under Section 82 of the Planning and Environment Act 1987 to review a decision by the City of Darebin to grant a permit (No D579/00) for the first floor at 417-419 High Street, Preston to be redeveloped as twelve dwellings.

2. At the commencement of the hearing I advised the parties that I was familiar with the area as I had been Deputy Town Planner at the City of Preston from 1981 until 1984. No party raised any objection to me hearing the Application for Review.

3. The subject site is located on the west side of High Street, commencing approximately 100m north of Cramer Street. It has a frontage of 15.2m and a depth of 48.8 m, yielding a site area of 741.76m2.

4. The site is developed to the boundaries with a two storey building comprising an arcade of twelve shops at ground level and, until recently, a billiards saloon above. Apart from the ground floor entry it is the upper floor which is proposed to be redeveloped.

5. The site is within the Preston shopping centre which comprises a mixture of retail, commercial and office uses in single and double storey buildings. To the west there is the Preston Market and an associated large car park managed by the Council. On the opposite side of High Street there is an Australia Post Office and the City of Darebin offices (former Preston Town Hall).

6. Mr Bennett advised that the site was originally a Woolworths Variety Store. In July 1980 two planning permits were issued for the development of an arcade of 13 shops at ground level and either 7 squash courts (Pt 1910) or 15 small offices (Pt 1911) at first floor level. The squash court development was the one that proceeded. Pt 1910 required the provision of 14 car parking spaces on site. However, Mr Bennett noted that the endorsed plans do not show any provision of car parking and there is no record indicating some alternative arrangement, such as cash in lieu of car parking.

7. On 16 July 1998 a planning permit (D462/98) was issued for a Place of Assembly on the first floor. The permit did not require the provision of any car parking.

8. It is proposed to build two levels of residential accommodation above the arcade, utilising the existing access arrangements. Twelve dwellings are proposed. There would be four single level, one bedroom apartments with floor areas in the range 55m2-66m2. There would be eight two level, two bedroom apartments with floor areas in the range 93m2-130m2.

9. Six of the dwellings would have an external façade either to High Street or the car park to the rear. They would have cantilevered balconies (of 11m2) providing private open space. The remainder of the dwellings would face an internal courtyard. Their areas of private open space would be in the form of small light courts within the northern boundary or south facing balconies together with northern light wells.

10. The proposal involves the creation of a new second floor within the existing space between the first floor and the underside of the roof. Consequently there would be no increase to the overall height of the building.

12. Under the Darebin Planning Scheme the subject site is zoned Business 1 and affected by a Special Building Overlay.

13. Mr Bennett advised that Clause 44.05-1 exempts the site from the provisions of the Overlay as the proposal is located at first floor level. Nevertheless, the application was referred to Melbourne Water.

14. Within a Business 1 Zone "Accommodation" is a Section 2 use requiring a permit. Pursuant to Clause 34.01-4 a permit is required to construct a building or construct or carry out works.

15. Clause 65.01 of the Planning Scheme directs the Responsible Authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

16. Relevant sections of the State Planning Policy Framework referred to by the parties are Clause 14 (Settlement), Clause 16.02 (Medium density housing) and Clause 19.03 (Design and built form).

17. Council's Municipal Strategic Statement ("MSS") is at Clause 21. Mr Bennett and Mr Ryan highlighted numerous provisions, including Clause 21.11 (Housing and Communities) and Clause 21.12 (Urban Character).

18. The purpose of the Business 1 zone, stated at Clause 34.01, includes:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

19. As the application was received prior to the introduction of ResCode Clause 16.02-2 and Clause 34.01-4 require it to be assessed in terms of the latest version of the Good Design Guide for Medium Density Housing ("the Good Design Guide").

20. Mr Bennett advised that on 17 September 2001 the Council adopted a "Retail Centres Policy". This forms part of Amendment C15 to the Darebin Planning Scheme Local Planning Policy Framework (Clause 22.02). The amendment has been exhibited and will now proceed to the Minister. The policy states, inter alia:

* Residential uses locating within the Preston Activity Centre must not be located on the ground floor active street frontage.

* Residential uses located above or to the rear of a retail use within the Preston Activity Centre must provide adequate provision of carparking for that usage either on site or in close proximity to the site.

* Residential uses within the Preston Activity Centre must demonstrate how the use will be complementary to the economic viability of the centre and not adversely impact upon the amenity of the retail function.

* Any future development/redevelopment within the Preston Activity Centre must ensure, where appropriate, safe and accessible pedestrian access from...High Street to the Preston Market and from High Street to car parking areas and the Preston Railway Station...

* Any future development/redevelopment within the Preston Activity Centre must ensure, where appropriate, that the design and its orientation is physically integrated with the Preston Market and in particular have regard to promoting a high quality interface with both the market and High Street.

21. The Application for Permit was lodged on 18 August 2000. Notice of the application was given by way of a sign on the site and letters to adjoining owners. Mr Bennett advised of the further notice given to the Secretary of the Body Corporate. The views of MCS Property (the owners of the Preston market) were sought.

22. As a result of the giving of notice of the application five objections was received (one being later withdrawn). Mr Bennett summarised the grounds of objection as follows:

* the relationship of the Body Corporate to the application;

* sewerage which already needs to be pumped from the site;

* the capacity of the structure to support the proposed two levels of development.

23. The application was referred externally to Melbourne Water. Although the proposal relates to the first floor level the authority required a permit condition relating to overland flow. Internal referral was made to the Council's Engineering, Landscaping and Traffic departments. Specific permit conditions were recommended.

24. The planning officer's recommendation that the application be approved was adopted by the Council's delegate. A Notice of Decision to Grant a Permit (subject to twelve conditions) was issued on 26 June 2001. One of the conditions required the submission of amended plans showing such things as the location and design of all internal storage, mail boxes, garbage and recycling areas/bins. Condition 8 stated:

(a) In the event of the City of Darebin providing public carparking in the immediate vicinity of 417-419 High Street Preston within a period of 5 years from the date of issue of this permit, the current or subsequent owners of the proposed dwellings shall contribute to a Separate Rate Scheme now equivalent to the provision of 16 carparking spaces, as a contribution towards the cost of the provision of the said spaces,

(b) If by the expiration of the said five year period, such carparking has not been supplied by the Responsible Authority in the immediate vicinity of the appeal site, this agreement will cease and have no force or effect, and

(c) The operator under this permit shall pay the reasonable legal costs incurred by the Responsible Authority in respect of the preparation of the said agreement,

(d) During the life of the said agreement any future owners must be informed of their obligations under the said agreement.

25. The application for review by one of the Objectors, lodged on 16 July 2001, stated the following grounds:

26. A Statement of Grounds on behalf of the Applicant for Permit was received on 10 August 2001. It stated:

(a) The permitted residential development represents a lower demand for car parking spaces than previous, current and alternate development.

(b) The existing and previous use and development had been permitted without the provision of car parking spaces.

(c) The site has ready access to public transport in the form of trains, trams and buses.

(d) The responsible authority, having knowledge and experience with the locality as the municipal authority, correctly exercised its discretion under Clause 52 of the Planning Scheme to permit the use to commence without the provision of car parking spaces.

(e) The development as permitted by the responsible authority is not an over development of the site.

(f) The development as permitted by the responsible authority is in accordance with the objectives and purposes of the zone.

(g) The development as permitted by the responsible authority is appropriate having regard to the character and circumstances of the area.

(h) The proposed use and development complies with the Objectives and Criteria contained in the Good Design Guide.

(i) The issue of a planning permit for the proposal is warranted and represents a sensible and positive approach to the relevant planning issues and circumstances.

(j) The Permit Applicants join issue with each and every ground contained in the Application for Review.

27. At the hearing Mr Bennett and Ms Bisignano spoke to written submissions. Mr Hooper made oral submissions and called the evidence of Mr Ryan and Mr Turnbull who were cross examined. The written submissions, the reports of Mr Ryan and Mr Turnbull, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

28. At the conclusion of the hearing Mr Hooper sought leave to make further written submissions on a number of specified matters, including appropriate permit conditions. The Tribunal allowed for a response from the other parties.

29. A submission was received on behalf of the Applicant for Permit on 16 October 2001. The Tribunal granted leave for an extension of time for a response from the Council. The Council's further submission was received on 31 October 2001. Ms Bisignano chose not to respond.

30. On 31 October 2001 a further submission, which responded to the Council's submission, was received on behalf of the Applicant for Permit. On 1 November 2001 a further submission was received on behalf of the Council.

31. On 1 November 2001 Ms Bisignano applied for an extension of time to respond to the latest submission made on behalf of the Applicant for Permit. Her request was granted. Her further submission was received on 9 November 2001.

32. On the morning of Thursday 8 November 2001 the Tribunal conducted an unaccompanied inspection of the arcade on the ground level of the subject site and the general area.

33. My verbal directions at the end of the hearing did not provide for the parties to make repeated further submissions. However, to the extent that they relate to the matters for which I gave leave to make further submissions I have taken them into account. They have been retained on the Tribunal's file.

34. I note, however, that many of the issues raised in Ms Bisignano's further submission are outside the leave I granted to make further submissions and I am not prepared to entertain them. I am referring here to various claims made by Ms Bisignano about the internal processes of the Council when considering the application and the lack of authority of the Secretary of the Body Corporate to indicate support of the proposal (per the letter of 7 October 2001 tendered by Mr Hooper).

35. As I explained to Ms Bisignano during the hearing an application for review leads to a hearing de novo. The Tribunal is standing in the shoes of the original decision maker and re-exercising the powers of the original decision maker. The internal processes adopted by the Council when it made its decision are not relevant. With respect to the Body Corporate I note that it is not a party to these proceedings. I appreciate that there are likely to be matters arising from the proposed development which will involve the Body Corporate (particularly with respect to common property). However, I accept Mr Bennett's submissions that the consent from the Body Corporate for the application is not necessary and that there are other processes available to resolve any issues which may arise.

36. One issue raised in Ms Bisignano's further submission warrants comment. Ms Bisignano highlighted the fact that the Applicant for Permit did not lodge an application to review the conditions on the Notice of Decision to Grant a Permit. Ms Bisignano submitted that the Applicant for Permit "must have regarded condition 8 as unimportant or appropriate" and "it is unfair to the other members of the Body Corporate who did not appeal, to change the conditions of Council's Notice of Decision".

37. I note that the fact that the Applicant for Permit did not lodge an application for review against conditions was glossed over at the hearing. Given Mr Hooper's strenuous objection to the inclusion of Condition 8 the failure to lodge an application for review of conditions does seem anomalous. Nevertheless, the ambit of the rehearing is not affected.

38. A de novo hearing effectively opens up all aspects of the proposal for

re-examination. Amongst other things the Tribunal has the power to add to, delete or modify any condition on a Notice of Decision. Although there is no application to review conditions if I form the view that any condition is unlawful or inappropriate it is my responsibility to address that in my order.

39. I accept Mr Bennett's submission that many of the matters initially raised by the objectors are not relevant planning matters. For example, one ground of objection referred to the capacity of the structure to support the proposed development. That is a building permit issue.

40. Mr Bennett highlighted that there is currently little, if any, residential use above or behind the commercial premises in High Street between Cramer Street to the south and Murray Road to the north. Nevertheless, I note that there is clear support for this form of development in the Planning Scheme policies.

41. On that matter Mr Ryan highlighted that Clause 14 encourages consolidation of existing urban areas, especially higher density and mixed use development near public transport nodes. He noted that High Street Preston is a higher order Activity Centre with exceptionally good access to public transport. I accept his opinion that the viability of the centre will be enhanced through appropriate mixed use development and that infill residential development would "contribute to the ongoing economic and cultural rationalisation of the traditional Strip Centre.."

42. Mr Bennett and Mr Ryan both presented an assessment of the proposal in terms of the Good Design Guide. While the Planning Scheme requires such an assessment I accept Mr Ryan's opinion that several provisions of the Guide are difficult to relate to an "'upper level' Apartment development" as is proposed.

43. I acknowledge that the proposal has a higher site density than the benchmark in the Good Design Guide. However, I accept Mr Bennett's submission that this is acceptable given the location and "the fact that the proposal will provide a new and better use for an existing building".

44. The building envelope is not an issue as the proposed development is contained within the existing structure. In contrast to most medium density housing proposals off-site impacts have not been raised as an issue. Nor are there any neighbourhood character issues. With the benefit of Mr Ryan's thorough assessment of the proposed design I am satisfied that the proposal would make a positive contribution to the neighbourhood character. In particular, the presentation to High Street would be improved. I am also satisfied that the proposed development would comply with the proposed policies of Clause 22.02 in relation to safe and accessible pedestrian access from High Street to the Market and the promotion of a "high quality interface with both the Market and High Street".

45. Mr Bennett submitted that due to their orientation and the attached form some of the units would not have good energy efficiency. Nevertheless, I accept Mr Ryan's evidence that the layout allows reasonable sun penetration into open spaces areas and to the abutting living areas. All units would have adequate daylight. I also accept Mr Ryan's view that in adopting the creative solution of opening up the northern and southern upper walls "liveable spaces" will be created.

46. In assessing the design Mr Ryan had identified a deficiency with respect to the open space for Dwellings 4 and 5. They have only small south facing courtyards. He recommended the inclusion of north oriented spaces and tendered revised plans showing how this could be achieved. I endorse that recommendation.

47. A landscaping plan was also tendered which showed how Council's suggested permit condition (requiring the submission of a comprehensive plan) could be met.

48. I accept Mr Bennett's submission that permit conditions could address many of the requirements of the Good Design Guide : in particular, acoustic privacy and services provision. My findings with respect to garbage storage are presented later.

49. The principal outstanding issue is car parking provision. As no car spaces are to be provided this is clearly contrary to the provisions of the Good Design Guide. This matter is the key issue in this application for review and was the major focus of submissions.

50. There is no capacity for on-site provision of car parking spaces. Ms Bisignano noted that there is a basement and suggested that it could be extended and used for parking. However, Mr Hooper advised that this prospect had been examined and been shown not to be viable. As indicated on plans tendered by the Council the basement area is severely constrained.

51. Ms Bisignano's company owns one of the shops in the arcade. It was her submission that the development could lead to disruption to the normal business of the tenant (currently operating a clothing boutique). She submitted that shoppers will go elsewhere if car spaces are unavailable.

52. Ms Bisignano highlighted that the market car park to the rear of the arcade is congested. That was apparent during my inspection (at midday on a market day). I found it difficult, although not impossible, to find a parking space in the eastern section of the car park closest to the arcade.

53. The car park is privately owned but managed by the Council. It has two hour time limits on spaces between 8.30am and 6.30 pm on market days. Ms Bisignano submitted that allowing the proposal without car parking would lead to an "erosion of car spaces available" to shoppers. She calculated that if residents were to rely on the market spaces instead of 16 spaces assessed by Council as required, then effectively 64 spaces (used for two hour periods) would not be available for use by others. Ms Bisignano argued that the proposed development should be postponed until the planned multi level car park is constructed.

54. Mr Bennett noted that there is a proposal for a multi level car park on the market site but it is "on hold pending further negotiations with the City of Darebin". He advised that there is also an application before Council for a new supermarket and associated car parking. Mr Bennett also advised that the Council is investigating future options for car parking in the area. There has been a recent study of parking in High Street Preston Shopping Centre by Turnbull Fenner (August 2001). It identified a shortage of short terms and long term spaces in the area.

55. Mr Bennett submitted that in the light of Council's recently adopted "Retail Centres Policy" the Council is of the view that the proposed development must provide adequate car parking either on the site or in close proximity. In this case the latter is the only option. With respect to the quantum of car parking spaces Mr Bennett submitted that the proposed development would require 16 spaces based on E8.T1 of the Good Design Guide. For some reason the Council did not include the normal requirement for visitors - in this case, an extra 2 spaces.

56. Mr Bennett submitted that as parking cannot be provided on the site it would be appropriate to adopt the approach taken by the Tribunal in Tims v Fitzroy City Council (Appeal 1993/54872, unreported). In that case Member Dimtscheff considered a similar situation - a proposal on land fully developed. She imposed a permit condition requiring the Applicant to enter into a Section 173 agreement with the City of Fitzroy to contribute to a Separate Rate Scheme if the Council were to provide parking in the immediate vicinity in the next five years.

57. Mr Bennett advised that Condition 8 of the Notice of Decision is an attempt to follow the Tims approach. However, he conceded that the condition is poorly worded. The later clauses refer to an "agreement" but the principal, initial clause does not. Accordingly, Mr Bennett suggested that the condition "may need some modification".

58. Although the Applicant for Permit did not seek a review of Condition 8 of the Notice of Decision Mr Hooper submitted that it should not be included.

59. Mr Hooper relied on the evidence of Mr Turnbull. It was his opinion that the 18 spaces required by the Good Design Guide should be waived pursuant to Clause 52.06-1 of the Darebin Planning Scheme. He provided an analysis in terms of the relevant decision guidelines of that clause.

60. The availability of car parking in the locality is one of the decision guidelines. Mr Turnbull advised that parking in the vicinity of the subject site includes the market car park to the rear and parallel parking on both sides of High Street. He referred to a survey conducted by his firm in June 1999. It showed that in Zone 1 (the area bounded by High Street, St Georges Road, Cramer Street and Murray Road) there is an overall shortfall of 55 spaces. The available spaces are "effectively full" at midday, although there are spaces available at the other surveyed times (9am, 4pm and 8pm).

61. Mr Turnbull noted that there are unrestricted car spaces available within 250m of the subject site - in Mary Street to the south and Kelvin Grove to the east. He suggested that these would be available to residents of the proposed dwellings. He did concede, however, that residents may be unwilling to leave their vehicles where there was the prospect of damage to them. Mr Turnbull also noted the possibility of private arrangements for parking being made with nearby residents. Mr Turnbull also highlighted that in practice the two hour spaces in the market would be of use to residents between 4.30pm and 10.30am : that is, when unrestricted and for two hours each side of the unrestricted period.

62. The availability of public transport in the locality is a further decision guideline in Clause 52.06-1. On this matter it was Mr Turnbull's view that if ever there are sites where parking provision is not required then the subject site is one. As it is well served by train, bus and tram Mr Turnbull considered that it can be expected that the proposed units will attract residents who prefer to use public transport for daily travel.

63. A further decision guideline in Clause 52.06-1 is "any credit which should be allowed for a parking demand deemed to have been provided in association with a use which existed before the change of parking requirement". Although generally wary of applying credits for earlier commercial uses to subsequent residential uses it was Mr Turnbull's view that in this instance the waiver of the requirement for the billiard parlour should carry forward as a credit. In support of that view Mr Turnbull noted that the earlier waiver was very significant - for 70-80 spaces - and associated with a more intensive use. Mr Turnbull also suggested that like the parking demand for the billiard parlour use the residential parking demand would principally be "after hours".

64. A further decision guideline addressed indirectly by Mr Turnbull was "an empirical assessment of car parking demand". It was Mr Turnbull's opinion that the proposal is not the sort of development that would generate parking at normal medium density housing levels. He suggested that future owners of the units would be self-selecting. Essentially, they would not rely on cars as it would be far too difficult to find somewhere to park them.

65. Lastly, it was Mr Turnbull's evidence that site-by-site car parking provision is not sensible in areas such as the Preston Activity Centre. He noted two possible projects in the vicinity - the redevelopment on the market land and the

re-vitalisation of the courthouse precinct with possible multi deck parking. He argued that these projects could satisfy any demand generated by the proposal. He noted that the car ownership patterns of people choosing to live in the units may eventually change if the availability of car spaces changes in the future.

66. Mr Hooper's submissions elaborated upon Mr Turnbull's evidence. He submitted that parking demand is better resolved comprehensively. On that matter he relied on the decision of the Tribunal in Tong Ly & Ors v City of Yarra (Appeal No 1994/49821). In that case Member Gibson considered a proposed supermarket in Victoria Street, Richmond. It was a situation where there was insufficient land (rather than no land) available for car parking on the site or nearby. The Tribunal allowed the grant of a permit with reduced spaces and stated:

The Tribunal has frequently commented that the parking needs of such areas cannot be met by the piecemeal imposition of parking requirements or cash-in-lieu payments on individual applications as they emerge. They can only act as a disincentive to the economic viability of the centre and offer no guarantee of effectively redressing the parking problems which the centre experiences...

If additional parking is necessary for the orderly planning of the centre, then it should be provided in such a way as it will benefit the centre as a whole and, if necessary the cost should be shared by all those who benefit...

The Tribunal recognises that it is planning policy...to ensure adequate off-street parking is provided wherever demand is generated. However, it is too restrictive to view this as requiring only the provision of on-site parking. In areas such as Victoria Street where there are saturated car parking conditions, adequate off-street parking will need to be provided by other means. Councils ought to develop strategies for this rather than regarding the issue as being too hard and seeking ad-hoc, and often unsuitable, accretions to the car parking supply by the imposition of requirements on individual permit applications. This approach only fetters the development of such commercial areas and results in primary land use decision being dictated by the secondary issue of car parking.

67. Mr Hooper highlighted that a "c_entre based approach_" was also endorsed by the Supreme Court on appeal of a decision by Member Liston - Sansmark Pty Ltd & Ors v City of Boorondara & Ors (22 AATR 105).

68. My principal finding is that it is appropriate to waive the normal car parking requirement for the proposed development. In reaching that conclusion I have been persuaded by many of the reasons advanced by Mr Turnbull, based on the decision guidelines of Clause 52.06-1. In particular I consider that the substantial credit associated with earlier uses should be carried forward.

69. I recognise that a complete waiver of car parking for a residential development is unusual. Over the years I have heard many appeals/applications for review concerning multi unit development. I do not recall ever hearing the argument that there should be a total waiver of car parking, even when the proposal was for student housing close to excellent public transport services.

70. Mr Turnbull's argument in relation to car parking demand in this case is novel. Essentially he argued that no purchasers of the dwellings will expect to be able to park a car, therefore no spaces need to be provided. I accept his prediction that purchasers are likely to be self-selecting. They are unlikely to own cars. Residents would have the benefit of excellent public transport and would face considerable difficulties in parking vehicles.

71. Although Mr Turnbull suggested that spaces in the market car park would be available between 4.30 pm and 10.30 am it is unlikely that the owners of the market car park would be pleased about consistent use of spaces by residents. Other options further afield would be inconvenient and/or unsafe. Even if some residents did choose to own cars, and try their luck with parking, I accept Mr Turbull's evidence that the parking demand generated would have only a minor impact in the context of the overall parking situation in the area.

72. I also accept Mr Turnbull's evidence that any parking demand generated by the proposal would have only a minor impact in the context of the overall scene.

73. As there is clear support in the policies of the Planning Scheme for residential development of the type proposed I consider that the "centre-based approach" to car parking provision should be adopted in this case. Although Tong Ly involved a commercial land use I see no reason why the "centre based approach" should not be equally applicable to residential development in an Activity Centre. I note that Ms Bisignano submitted that the approach adopted in Tong Ly is not applicable to locations which are beyond 7 km of the GPO. I can see no justification for such a distinction. I consider that the approach is likely to be relevant to any metropolitan activity centre which has accumulated parking deficiencies.

74. I note that Member Gibson's decision in Tong Ly is not the only endorsement of the need for a comprehensive approach to car parking in commercial centres. For instance, in Genamoo Pty Ltd v City of Port Phillip (15 AATR 248) Member Marsden determined that a cash in lieu requirement was not appropriate or equitable for a restaurant in Acland Street, St Kilda. He held that the car parking problems in the area should be resolved by a "global approach" - a special charge scheme or joint venture program with traders. That was the approach Member Marsden had also adopted in Modern Design Group v City of Port Phillip (15 AATR 258). Those decisions were approved of by Member Moles in Callis & Forrest Pty Ltd v City of Stonnington (18 AATR 267).

75. The Council's proposed Clause 22.02 local policy states that residential uses such as that proposed "must provide adequate provision of car parking for that usage either on the site or in close proximity to the site". I do not consider that the simplistic formulation of the policy is useful in this instance. Parking cannot be provided on the subject site and there has been no suggestion that it could be provided "in close proximity". The imposition of a such a policy is likely to effectively prohibit any residential development occurring in the Preston Activity Centre - particularly in the core area. Other options for the provision of parking need to be embraced by the policy. In any event it is clear that the policy (which states that there "must" be "adequate provision of carparking") cannot override the discretion to waive any car parking requirement as provided by Clause 52.06 of the Planning Scheme.

76. I appreciate that the City of Darebin has begun to address the overall parking situation at the Preston Shopping Centre. The problems have been clearly identified by the Turnbull Fenner study commissioned by the Council. The consultant's report highlighted that options for the provision of car parking are limited without major reorganisation and works. As noted by Mr Bennett the Council is negotiating in relation to a multi level car park at the market and investigating other major redevelopment options involving parking.

77. I do not accept Ms Bisignano's fundamental submission that the proposed development of the subject site should be postponed until a multi level car park is operational or the overall parking supply in the area increases.

78. The remaining issue for me to determine is whether there should be a tie between the permit and any future special rate scheme.

79. There is a recognised shortfall of car parking spaces in the Preston Shopping Centre. It is a problem the Council has the responsibility to address. One possibility is the funding of new car parking spaces by the imposition of a separate rate. This would allow the Council to establish an appropriate apportionment for owners of land used for different purposes at the time. All of the owners of land within the designated area (including the objectors to this application) would have rights under the process provided for such schemes in the Local Government Act 1989. Importantly, apportionment would be subject to review by the Tribunal.

80. I consider that it is inappropriate and unnecessary for a permit condition to attempt to regulate this matter. Specifically, I consider that the Tims approach, as reflected in Condition 8 of the Notice of Decision (or with the five year time period removed), is not appropriate. It is redundant to refer to a Separate Rate Scheme which can be imposed regardless of any condition.

81. It is arguable that such a condition is also invalid. On that matter Mr Hooper submitted (in Mr Ryan's supplementary submission of 31 October 2001) that the Responsible Authority, or the Tribunal, is not legally able to pre-empt what should be the contents of and liabilities of owners under a separate rate, which is governed by the provisions and procedures in the Local Government Act 1989. Any Section 173 agreement would be ultra vires. I also note Mr Hooper's submission that the condition proposed by the Council would also be void for uncertainty, because it is contingent upon a Special Rate Scheme being introduced by the Council.

82. I accept Mr Hooper's submission that parking should be covered by way of a Note on the permit to the effect that the waiving of the requirement for parking is without prejudice to any requirement the Council may make for the owners of the units to contribute to a Separate rate Scheme at any time in the future.

83. I also endorse Mr Hooper's submission that it would be appropriate to ensure potential liability to contribute is drawn to the attention of future owners of the units. As suggested by Mr Hooper this could be done by the inclusion of a permit condition requiring that purchasers be given a copy of the permit and have their attention drawn specifically to the abovementioned Note. I record that in a further submission (of 1 November 2001) on behalf of the Council the inclusion of such a condition was supported. It stated:

Council is committed to ensuring that, as circumstances allow, car parking should be provided. The latest suggestion from Mr Hooper at least provides a mechanism for prospective owners to at least be made aware of their potential obligation in this regard.

84. I consider that together these measures would effectively put purchasers on notice about future contributions to any Separate Rate Scheme.

85. Ms Bisignano indicated concern that the "Dumpmaster" permanently located in an area at the rear of the site could block this fire exit. I noted during my inspection that rubbish in this area is overflowing although it is apparently related to current works associated with resurfacing the arcade.

86. I accept Mr Ryan's suggestion that the proposed residential use is likely to generate less rubbish than the previous billiard parlour use. There may, however, be a need to install a narrower receptacle which is cleared more frequently.

87. The Notice of Decision has a requirement for further plans showing the location and design of garbage and recycling areas/bins. These are to be approved by the Responsible Authority. I consider that such a requirement would effectively address this issue.

88. Mr Bennett highlighted that the proposed entry is by the existing stairs. He submitted that the immediate access and the arcade generally need upgrading to provide an adequate sense of address. My inspection confirmed that situation although I also noted that resurfacing work in the arcade is underway.

89. Mr Bennett submitted that there should be an agreement with the owners and occupiers of the arcade for the improvement of finishes, surfaces and lighting. The Notice of Decision has a condition relating to this and a requirement for further plans showing treatment of the stairs and entryway. It states that the "applicant must enter into an agreement with the other owners and occupiers of the arcade" for this purpose.

90. Mr Hooper was concerned that an "agreement" could be held up by one or more owners. Furthermore, Ms Bisignano noted that despite such a condition the rules of the Body Corporate would require a certain percentage of the members to be in agreement about any works.

91. In a supplementary submission Mr Hooper included a suggested re-wording of the condition. It recognises that the agreement of the Body Corporate (and possibly others) is necessary and provides for the Responsible Authority to be the arbiter of the agreement. I endorse that suggestion.

92. Lastly, I note that Ms Bisignano submitted that the proposal represents an overdevelopment of the site and there may be children with nowhere to play. She suggested that the arcade could become a meeting place after school and weekends with resulting detriment to the shops. I do not consider that such objections have any substance.

93. In summarising the proposed development Mr Bennett stated the following:

The proposal represents a significant opportunity to replace the existing use with one that is likely to generate benefits to the arcade, the High Street shops and the market. Its location could provide a good living environment.

94. I endorse that view. The proposal represents a good recycling of a building. No car parking is to be provided on the site. However, in this location and given the history of the use of the upper floor I consider that it is appropriate to waive the parking requirement. I consider that a "centre-based approach" to parking is appropriate. Prospective owners should, however, be advised of their possible liability to contribute to a separate rate scheme for the purposes of car parking in the area.

95. Accordingly I will disallow the Application for Review and make the appropriate order.

96. The conditions I intend to impose are based on those contained in the Notice of Decision to Grant a Permit. They have been reordered and incorporate minor changes to the wording of some conditions as suggested by Mr Hooper (for instance, design for acoustic privacy and the provision for sewerage services to be to the satisfaction of the Responsible Authority and the agreement regarding arcade refurbishment to be contingent upon the agreement of the Body Corporate and any other necessary owners and occupiers). I propose to reformulate the condition relating to parking in the light of my findings. Rather than attempt to describe the necessary changes to the conditions on the Notice of Decision my order includes a complete list of conditions.