Mr Cameron Gentle, town planner, Hansen Partnership Pty Ltd

Mr James Livingston, town planner, James Livingston Planning, for Miriam Mathews & Megan Thornton

Application under section 77 of the Planning and Environment Act 1987

Clause 43.01 (buildings and works and signs in HO123)

The land is in the Mordialloc Major Activity Centre, on the east side of Main Street, Mordialloc. It is about 50 m from the Mordialloc railway station and about 250 m from the foreshore of the Bay. On the south side of the land is the station forecourt and on the east side is a right of way adjoining a railway station commuter car park. The land is in two parcels. No 503-505 Main Street is irregular with a frontage of about 9 m, maximum depth of about 31 m and an area of 245 sq m. It is occupied by a single storey restaurant. No 501 Main Street is a vacant two-storey shop building. It is rectangular with a frontage of about 6 m, a depth of about 31 m and an area of about 186 sq m.

24 September 2011 & 5 October 2011 (both unaccompanied)

1. The Main Street Café in Mordialloc is located, as its name suggests, on Main Street. Main Street passes through the centre of the Mordialloc major activity centre. The café is also located adjoining the forecourt to the Mordialloc railway station.
2. In 2009, the Kingston City Council granted a permit to establish the café. The permit allowed use for a restaurant, this being the appropriate characterisation of the use under the Kingston Planning Scheme. The small lot on which the café is located was not able to provide any on site parking. The Council waived parking requirements. The Council restricted hours of operation to midnight on each day and set a maximum of 100 seats.
3. The café holds a 'restaurant and café' licence for on premises liquor consumption.
4. The owners of the café business (Bjbac Pty Ltd) now wish to expand the café into premises abutting at 501 Main Street. The main features of the proposal are:
   • An increase in the number of seats to 175.
   • An alfresco area at the rear of 501 Main Street.
   • An extension to the liquor licence area to include 501 Main Street.
   • No change to operating hours.
   • A maximum of 15 staff at any one time.
   • No on site car or bicycle parking.
5. Bjbac applied to the Kingston City Council to amend the permit to accommodate the proposal. There were nine objections. The Council decided to refuse to amend the permit, mainly on parking and traffic grounds.[1] Bjbac has now applied to the Tribunal to review the Council's decision.
6. The main issues for determination in this proceeding are whether parking requirements should be waived and whether on street loading will cause unreasonable traffic problems.
7. I have considered all submissions and evidence, including those about the applicable policies and provisions of the Kingston Planning Scheme. I have also inspected the subject land and surrounding land. I have decided to set aside the Council's decision and amend the permit. My reasons follow.

1. The Council and Respondents are concerned about the effect of a waiver only during weekday times. There is no issue that adequate night and weekend parking is available in the centre for café customers and staff.
2. A restaurant is a land use that does not require a permit in the B1Z. The cafe is in a major activity centre. The Council's case was not put on the basis of the need to take a 'centre-based' approach to parking. It should have been. The Tribunal has consistently endorsed the principle that, in higher order activity centres, this approach should be taken, especially for conversions to existing buildings for uses that do not require a permit.
3. Under a centre-based approach, development of individual sites in a centre should not be constrained by an inability to provide on site parking.[2] The inefficiencies, disincentives and inequities associated with not granting waivers or reductions (and requiring on site parking or cash in lieu payments) have been long recognised, especially for existing building conversions for permitted uses.
4. Mr Livingston submitted that a centre-based approach applies only if a centre-wide parking strategy (such as a parking precinct plan) is in place and being implemented. He submitted that the Council's structure plan is seven years old and no parking supply measures of any significance have been implemented by the Council.
5. This is not a limitation that I would adopt. In any event, the structure plan does address parking supply. An important element is the land assembly for a multi deck car park on the west side of Main Street, off Centreway. While there may be relatively slow progress on this car park, there is no evidence that the proposal has been abandoned. The realisation of these sorts of facilities takes some time.
6. At the hearing, Mr Livingston also sought to distinguish the Mordialloc centre from the type of centre (often inner suburban) being considered when the Tribunal has previously endorsed the centre-based approach. This is not a distinction on which I place any weight. Mordialloc is a higher order centre. The main street of the centre has, like older centres, many smaller premises facing the street. In fact, as Ms Dunstan points out, Mordialloc has the advantage of a wide main street allowing more parking in an angled format.
7. In applying the provisions of the scheme, the relevant factors in this case for determining whether to waive or reduce parking requirements are empirical demand assessment, parking availability and public transport.
8. Ms Dunstan's surveys show a parking demand for the café in the peak Friday lunch period of 0.31 spaces per patron (including staff). For 75 additional seats, this equates to a demand for 23 spaces, assuming all seats are full.
9. There were between 31 and 49 on street vacant spaces between 12 am and 2 pm (ie between 78% and 86% full). There was also about an average of 10 vacant spaces in relevant off street parking areas at this time.
10. Ms Dunstan's evidence shows that parking is quite tight at the Friday lunchtime period but that there are still vacancies sufficient to meet anticipated demand.
11. Even if vacancies were marginally insufficient to meet demand, I would not refuse the waiver because I would also take into account the excellent availability of public transport, the ease of access on the nearby pedestrian crossing to west side parking areas (including those in supermarkets for those café customers combining shopping destinations), and the unusually low percentage of café staff driving to work.
12. I also give some weight to a requirement for eight spaces for the extended restaurant floor space that would apply under the new draft clause 52.06 of the scheme. The draft has been released by the Government for public comment. Although still just a proposal, I have given the draft more weight than an amendment to a scheme exhibited by a Council. In doing so, I would adopt a requirement somewhere between 8 and 23 spaces and this further indicates that there would be sufficient parking for the shortfall.
13. I accept Mr Livingston's assessment that the survey results show parking demand at weekday lunchtimes is around 90% and relatively close to saturation. However, in my view, that does not lead to the conclusion that the proposal ought to be rejected. To do so would be to fall into the trap of refusing change, and in this case change supported by policy, based on parking difficulties with peak demand.
14. While on street parking on the east side of Main Street itself may be difficult at peak times, there is sufficient parking on the west side. The pedestrian crossing near the café provides convenient access from the west side.
15. I do not accept the Council's position to refuse a permit on parking grounds. I also do not accept the Respondents' position that only 100 of the 175 seats should be available for use during the day. This amounts to requiring the new part of the café at 501 Main Street to remain shut until the evenings and weekends. This is not justified on parking grounds.

1. There is no on site loading area. Loading is impractical from the rear or side accessways, for safety or traffic management reasons. It would be necessary to continue to conduct loading and unloading from Main Street as close as possible to the café. This is not a basis for refusing a permit. The existing shop at 501 Main Street loads and unloads in the street. Most businesses in smaller premises facing Main Street would do the same.
2. A café business does not have extensive loading requirements. Food and drink will usually be delivered by small delivery vehicles that can use on street parking.
3. Ms Dunstan suggested converting the taxi zone outside 503-505 Main Street to a loading zone. In that way, both taxis and loading vehicles could use that space. I commend the suggestion for the Council's consideration.

1. I need briefly mention only one other issue. A permit is required under the scheme for the sale or consumption of liquor for the new part of the restaurant at 501 Main Street. The planning or amenity impact of extending the licence to 501 Main Street was not a ground on which the Council refused a permit or on which any of the Respondents relied. The Council, in essence, agreed that a larger licensed restaurant would help provide a more significant out of hours entertainment function for the centre, consistent with the policy and structure plan. In these circumstances, I do not oppose a permit for such sale and consumption.

1. The scheme requires four bicycle parking spaces (two for customers and two for staff) for the expanded floor area at 501 Main Street. Bicycle parking is of importance because my inspections confirmed that the café was a popular stop for riders, including I suspect the increasing numbers of more long distance Nepean Highway riders. Orderly parking of bicycles is important. I will include a condition requiring a minimum of two bicycle rails, to accommodate four bicycles in the street near the café.
2. The Applicant opposed access from the rear of 501 Main Street, through the alfresco area, to the café. In accordance with local policy, I consider rear fence design that encourages access should be incorporated, as sought by the Council.

1. The expansion of the café ought to be encouraged. It is consistent with strategic objectives for the centre of providing more entertainment and out of hours use in the centre. It could not be closer to the railway station (ie the principal public transport network) for the convenience of customers and staff. There is a crossing of Main Street almost directly outside the café, that gives good access to the bus interchange on the west side of Main Street.
2. Parking requirements should have been assessed on a centre-based approach. There is sufficient parking for peak weekday times. If the Council continues with its parking-related proposals under the structure plan, the café and other businesses may need to contribute.
3. A waiver of parking and loading requirements is appropriate.
4. The decision of the Council will be set aside and the permit amended.

501-505 Main Street, Mordialloc (Crown Allotment 3 & 4A, Section 6, City of Mordialloc, Parish of Mordialloc)

Use for a restaurant, construction of buildings and works, use for the sale or consumption of liquor, erection of one business identification sign in a Heritage Overlay, waiver of parking and loading requirements under clauses 52.06 and 52.07 of the Kingston Planning Scheme, in accordance with the endorsed plans

1. Before condition 1, insert -
   1. Before the use and development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans submitted to Council on 9 November 2010, but modified to show -

(a) The use and development of that part of the land, being 503-505 Main Street, in accordance with the plans currently endorsed by the Responsible Authority under Permit KP242/09.

(b) The provision of a red line drawing showing the location within which the proposed liquor licence is applicable.

(c) The activities conducted in the first floor office within 501 Main Street nominated as being ancillary to the restaurant.

(d) The design of the fencing enclosing the rear of the site amended to incorporate features that encourage access to the site from the rear in accordance with the Mordialloc Activity Centre Policy.

(e) The tables and seating located on the footpath deleted from the plan.

1. Condition 1 is renumbered as condition 2.
2. After condition 2, insert -
   1. Stormwater works must be provided on the land so as to prevent overflows to adjacent properties and must be implemented to the satisfaction of the Responsible Authority.
3. Condition 6 is omitted.
4. Conditions 2, 3, 4 & 5 are renumbered as conditions 4, 5, 6 & 7 (respectively).
5. For condition 8, substitute -
   1. Without the further written consent of the Responsible Authority, no more than one hundred and seventy-five (175) seats must be made available to patrons on the premises.
6. Condition 17 is omitted.
7. After condition 16, insert -
   1. No signs or other advertising or identification, other than that allowed under this permit, may be erected or displayed on the site without written Council consent.
   2. A minimum of two bicycle rails, to accommodate four bicycles, must be provided in the street near the café to the satisfaction of the Responsible Authority.
   3. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if the use for a restaurant and use for the sale or consumption of liquor does not start within two years of the date an amended permit was issued in accordance with the directions of the Victorian Civil and Administrative Tribunal in proceeding P772/2011. In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] The Council's grounds also included orderly and proper planning, but this was not seriously agitated at the hearing.

[2] Dantes Restaurant v Mornington Peninsula SC [2007] VCAT 882 at [9].