Mr David de Giovianni, consultant town planner, appeared for the responsible authority. He presented written and oral submissions.

Mr Dominic Scally, solicitor, of the firm of Best Hooper, solicitors, appeared for the respondent company, Nightingale on Florence Pty Ltd. He presented written and oral submissions and called Charmaine Dunstan, traffic engineer, as an expert witness. She gave oral evidence in the course of which she adopted the contents of a written report circulated prior to the hearing.

Various plans, photographs and other documents were tendered in evidence. The submissions and evidence in documentary form have been retained on the file of the Tribunal.

Application under section 82 of the Planning and Environment Act 1987 for a review of a decision of the responsible authority to grant a permit.

Mixed use development in a five storey building to contain two ground floor offices and 20 dwellings above with a waiver of car parking requirements and loading bay requirements.

Development Contributions Plan Overlay.[1]

Under clause 44.05-1 for building in a Special Building Overlay.

Under clause 52.06-3 for waiver of car parking requirements.

Rectangle of land with a frontage of 12m to the north side of Florence Street with a depth of 39m and an area of approximately 477.5m2.

Porter v Port Phillip CC [2007] VCAT 46.

Future Trek Pty Ltd v Monash CC [2011] VCAT 1907.

Karanlight Pty Ltd v Yarra CC [2013] VCAT 279.

Frydman v Port Phillip CC [2012] VCAT 1838.

1. In short this case concerns a proposal for the clearing from a site of existing developments and their replacement with a new five storey mixed use development with two office areas on the ground floor and 20 apartments on the upper floors with generous parking accommodation for bicycles and none at all for motor cars. More details will be necessary in due course.

1. This is an objector's review under s 82 of the Planning and Environment Act 1987 (PE Act). The objector is Chaucer Enterprises Pty Ltd (Chaucer). It has an interest in adjoining land, also proposed for development. Its complaint is not that the responsible authority has determined to grant permission for the project, but that it has done so without any provision for on site car parking. Chaucer agrees that a reduction in the standard planning scheme requirement for car parking, indeed a substantial reduction, is appropriate in the circumstances. It does not agree that a complete waiver or reduction to nothing of the car parking requirement is appropriate. That is the issue in this case.
2. Initially Chaucer also raised objection to the waiver of the requirement for a loading bay. That objection has not been pursued, and it is now conceded that such waiver is appropriate in the circumstances of this case.
3. Another side issue is that the application plans depicted a so called 'parklet' on the road reserve in front of the review site intended to provide parking accommodation for additional bicycles. However, the determination of the responsible authority, which approved the proposal subject to conditions, did not include the parklet and it is not part of the current case.
4. There are some special features about the proposed building and its context that relate to arguments raised in this case. It will be relevant to describe them in some detail.

1. The case calls for consideration of the car parking requirements of clause 52.06 of the Moreland planning scheme. That clause deals with requirements in relation to the provision of car parking. It has undergone various modifications from time to time over the last 15 years or so, and thus over the period of some previous Tribunal decisions referred to in argument in this case. Amongst the changes has been one in relation to the use of the terms 'reduced' and 'waiver' as they relate to on site car parking requirements. Clause 52.06 specifies standard requirements in relation to various land uses but also allows, subject to the granting of planning permission, a reduction in such requirements. It used to mention both reduction and waiver to make it clear that the reduction could be down to zero on site car parking spaces. It was pointed out that the revisions have resulted in the removal of the word 'waiver' and its replacement by reduction with a further specification that reduction includes reduction to zero.
2. In my opinion these are two methods of saying the same thing. Both, at least where the additional words of reduction to zero occur, make it clear that the reduction can be to zero. They may represent a change in style of expression, but not in the meaning or policy of the car parking provisions concerned.
3. The other point I make in relation to the meaning of words is that the word 'sustainable' is liberally used and liberally referred to in policy statements, other documents and in argument. Sustainable normally means able to continue or to be maintained. In this context it is used in relation to modes of transport or moving from one place to another including such modes as walking, cycling, using public transport and using motor cars generally owned by others than the passenger making the trip. Sustainable here does not mean that the mode of transport is able to be sustained or continued but rather, it appears to mean environmentally sustainable. In other words, it is referring to modes of transport that are or are said to impose less burdens on the environment over time in relation to such things as consumption of resources and the use of commodities, particularly fuel, that add carbon burdens to the atmosphere and the environment. I make this point merely because the word 'sustainable' is now used so commonly that this particular meaning seems to be taken for granted although this may not always be obvious in particular quotations.

1. There are various descriptions for this proposal which differ in detail but which do not imply inconsistency. In the following account I do not include every detail but seek to give a general description including aspects with particular relevance to the on site car parking issue. Details that have been bunched together under general descriptions nevertheless have their importance in relation to this proposal being for a so called 'green' development, that is to say, a development that seeks to make for the environment sustainable in the sense mentioned above.
2. The site has a frontage to the north side of Florence Street, Brunswick of 12m, a depth of 39m and an area of approximately 477.5m2. It is common ground that this site is of sufficient size and shape to accommodate a basement car park and storage area although none is proposed. The only vehicle accommodation would be for 64 bicycles associated with people to live in the upstairs apartments. This far exceeds the planning scheme requirement for bicycle accommodation.
3. At ground floor there would be two office/retail tenancies of 52m2 and 87m2 respectively. There would also be an entrance area of 2.39m width leading back to a lift and stair foyer giving access to the four upper floors. On those floors there would be 12 single bedroom apartments and 8 two bedroom apartments, a total of 20 apartments altogether. Living areas would have upper floor balconies facing north or south and bedrooms would face light courts.
4. The roof area is intended to be used for communal washing machines and clothesline area and also for a productive garden area with equipment shed, hen coop and beehives.
5. There would be no air conditioning but it is intended that aspects of the design and materials used would limit internal temperatures, even in hot weather, to 27 degrees celcius. The proposal envisages many other features to enhance it from an environmentally sustainable point of view.
6. It is also proposed that there should be special arrangements including the vetting of initial purchasers of apartments with a view to selling to purchasers who will be in sympathy with the 'green' aspirations of the design and usage of the building, including a no private motor car ownership culture. It is claimed that something like the 500 prospective purchasers have registered interest.
7. However, although such a selective sales policy might be followed by the initial developer in relation to initial sales I expressed concern that there appears to be nothing that would give continuing control over succeeding generations of apartments owners as the initial generation of purchasers die or move on for one reason or another. Such turnover could begin quite soon after the initial sales. People might move for health, family or employment reasons, or because of needing more space, and such changes could be within the year or two. Furthermore, I do not see how vetting initial purchasers would necessarily control tenants to whom such initial purchasers may let apartments. No mechanism of achieving or sustaining the restricted sales policy was suggested.
8. Another claim made in relation to the design and materials proposed is that they would produce 'affordable' housing. The proposed absence of on site car parking is one aspect of this alleged affordability. However, I am not persuaded that there is any mechanism whereby such affordability would be achieved, or maintained in relation to succeeding generations of owners.
9. This proposal is alleged to be based on and very similar to an existing development that has been constructed, and is operating diagonally opposite the review site at 9 Florence Street[2]. That development, known as 'The Commons', is similarly of five stories with no basement and no car parking. It contains 24 apartments of one or two bedrooms although, in that instance, there are more two bedroom apartments than single bedroom ones. It likewise is supposed to provide affordable housing but affordable there really means cheaper development costs, and not necessarily cheaper housing for purchases or tenants. A two bedroom flat there is reported to have been sold for over $600,000 which, on today's prices, does not strike me as justifying the description of being affordable. Cheapness of construction may mean no more than a larger profit for the developer, bearing in mind the attractiveness, from many points of view, of the location of the review site and The Commons. Even if an apartment was sold for a so called 'affordable' figure there would be nothing, so far as I can see, to prevent the purchaser from immediately capitalising on the advantage by reselling for over $600,000. No mechanism for preventing such gazumping is suggested.
10. It is suggested that a system of so called 'green travel plans' would be instituted. This appears as a worthwhile arrangement although administratively burdensome to the future body corporate arising from subdivision of the proposed development. Such body corporate may or may not prove willing to sustain such arrangements over the long term.
11. There are other aspects of affordability such as reduced running costs. A development that has no air conditioning, and needs none, will save on electricity. That is just an example of which there are likely to be others. Nevertheless such aspects are likely to be minor and marginal compared with the affordability or otherwise of the cost of purchase of the dwelling.
12. A proposed green travel plan, apart from providing information about timetables and advice on various things, involves a levy of $500 per annum per bedroom to be administered by the body corporate and with the money to be released for the purchase of Myki cards for the use of public transport and the defraying of expenses involved in relation to participation in and utilisation of shared of car schemes such as the GoGet, Flexicar and Green Share Car. An existing GoGet on street base parking spot is located on the south side of Florence Street diagonally opposite the review site and immediately in front of The Commons. It is contemplated that a further GoGet site might be established in the locality, perhaps on the ground floor of the review site (although such private land sites are not favoured by commercial operators like GoGet). Bicycle repair and maintenance expenses would also be legitimate calls upon green travel plan funds although that would appear to be a token or 'make weight' element in that the normal repair and maintenance costs of a bicycle must be slight in relation to an annual charge of $500 or $1000.

1. The review site is located on the north side of Florence Street in Brunswick. The developer is Nightingale on Florence Pty Ltd (Nightingale) and it is proposed to name the development Nightingale.
2. Florence Street is an east-west street running to the west from its 'T' intersection with Sydney Road, Brunswick. Sydney Road is, of course, a major thoroughfare carrying considerable traffic including public transport on tram lines.
3. Florence Street runs to the west across the next north-south street being Breese Street and on to its dead end at the Upfield railway line.
4. Halfway between Breese Street and that dead end there is a trafficable laneway that runs north from Florence Street. There are three properties between that laneway and the railway line. They are known as 4, 6 and 8 Florence Street respectively with the Florence site being the middle one.
5. Adjoining Florence, on its eastern side, is number 4 which has a side abutment to the lane across which is located number 2 Florence Street.
6. Number 8 is the property of the objector, Chaucer. It shares a common side boundary with the Florence site and is located between that site and the railway line. It is the last private property before the railway line.
7. In referring to the railway line I have not mentioned the Upfield Bicycle Track which runs past the western side boundary of the number 8, and also of The Commons at number 9 located opposite the Chaucer site on the south side of Florence Street. The Upfield Bicycle Path runs off to the north and for considerable distances to the south along the railway line until it connects up with other pedestrian/bike paths running generally in a southerly direction through Royal Park along the Moonee Ponds Creek to Docklands and the vicinity of the Yarra River.
8. The Anstey railway station on the Upfield line is located in very close proximity to the Chaucer site.
9. The next east-west thoroughfare, parallel to Florence Street but to the north, is Albion Street. It is a main road that crosses Sydney Road to the east and the railway line. East-west bus services run on Albion Street.
10. There is a substantial property at 216 Albion Street undergoing redevelopment that has some relevance to this case, as does a proposed redevelopment of the Chaucer site. I will give some more details later.
11. The laneway that runs north between numbers 2 and 4 Florence Street is in an inverted 'L' shape. It diverts to the west to run behind number 4 and the Florence site. It terminates against the rear segment of the eastern side boundary of the Chaucer site and provides rear access over approximately half of the rear boundary of 216 Albion Street as well as to numbers 4, 6 and 8 Florence Street.
12. It is proposed to use this laneway to provide rear vehicle access for the substantial new mixed use development preceding on 216 Albion Street. I am satisfied, on the evidence, that an 85 percentile car will be able to use this lane, and negotiate the left hand bend at the north-eastern corner of number 4 Florence Street so that such access will be feasible. It would also be feasible in relation to numbers 4, 6 and 8 Florence Street.
13. Opposite the Florence site, at 5 Florence Street, there is a panel beating works.
14. Some on street car parking is available in Florence Street and in the immediate locality although, during office hours, it is limited to one or two hours. Some informal off street parking is available in front of the panel beating works and the currently disused Florence site although the continuing availability of both is likely to be limited. It would be lost on the Florence site if the current proposal was to proceed and redevelopment of the panel beaters site is to be expected, sooner or later.
15. All the land between Sydney Road and the railway line is located in the Brunswick Major Activity Centre and the review site, and surrounding land, is in a Commercial 1 Zone. Planning for the area envisages its redevelopment, generally from smaller industrial activities, to relatively intense residential and commercial development such as is proposed for the Florence site and exists on The Commons site. Such redevelopment has been proceeding in the area generally, and is proposed for the Chaucer site and number 4 Florence Street where development is underway. Other developments in the locality have proceeded and further redevelopment is to be anticipated. Building heights at and in the vicinity of five levels are encouraged and a consequent transformation of the character of the area is already underway and is planned to continue.
16. The Brunswick Major Activity Centre, in which the review site is located, offers an extensive range of shopping services and access to educational and other facilities within and beyond the centre. All in all, the access to public transport is excellent.
17. The land to the west of the railway line is, however, Neighbourhood Residential Zone, the most restrictive of the newly instituted Residential Zones.
18. In the vicinity of the Florence Street/Breese Street intersection, and to the east of Breese Street, there are two areas of car parking relating to a market. The main area is said to be limited to one hour parking up until 8pm. Fees are charged.
19. Although the restriction extends to 8pm, there is no continuous fencing or enclosure of the area to prevent parking after that time. I initially wondered whether this area, and the other bearing signs in relation to the market, should be taken into consideration in making parking assessments relevant to the Nightingale proposal. However, the parties appear to be of a mind that this is not appropriate and, in any event, I have no evidence or knowledge as to the likely continuing availability of such parking.
20. There are some other parking spaces on private land where access is not physically prevented although I suspect they are, or are mainly, potential development sites. I presume that owners or occupiers of those private land spaces require them for their own use or for use by staff or customers.

1. The development at 4 Florence Street is currently under construction. It is to have a ground floor office with seven townhouses (occupying three levels) and two apartments. Each townhouse is to have a tandem double garage at ground level with access via the side laneway.

1. This development is to have five shops and 48 dwellings with 17 car parking spaces, 12 for residents and 5 for staff. It can be noted that the provision of on site car parking spaces for this development falls well below one space per dwelling and, indeed, well below what would be the standard requirement under clause 52.06. This basement car parking would have access from Florence Street via the 'L' shaped lane and down an onsite ramp.

The proposed Chaucer development at 8 Florence Street

1. The Chaucer development is proposed to be in a building of five levels over a basement car park and storage area. Each of the upper floors would have six apartments, two with two bedrooms, and four with a single bedroom. That gives a total of 24 apartments in all. A roof top garden and a so called 'productive garden' are proposed for the roof level.
2. There would 17 or 18 car parking spaces in the basement with access via a ramp from the eastern side of the Florence Street frontage. It is proposed to use a car stacker in the basement. It might have been thought desirable for such a service facility to have been located from the rear laneway although the design at the Chaucer development regards its eastern side as something of a rear area in as much as the proposed building is oriented towards the bicycle lane and footpath on its western side. Pedestrian entry is on that side leading to the lift and stairs with a restaurant on either side of it. It appears from this that advantage is sought to be taken of exposure to the bicycle path in preference to the Florence Street frontage.
3. Application has been made for planning permission for this development and Chaucer awaits a decision from the responsible authority. It might be thought that the provision of basement car parking is simply a preference of the developer notwithstanding that the proposed parking provision, when account is taken of the presence of the restaurants in addition to the apartments, falls well short of the standard clause 52.06 requirement. However, it appears that there is more to it than that and that this development will be required to provide on site parking in line with other nearby developments like 4 Florence Street and 216 Albion Street. The planning department of the responsible authority has sought advice by internal referral to its 'Development Advice Engineer' whose response, dated 8 July 2015 is exhibit 08. In relation to reduction of parking requirement that respondent indicates that:

The Australian Bureau of Statistics 2011 Census shows that these eight two-bedroom apartments and 16 one-bedroom apartments in Brunswick are expected to generate 17 resident cars.

The BMAC Car Parking Strategy's recommend minimum parking provision for this proposal is 14 parking spaces.

Given that the Brunswick Integrated Transport Strategy recommends demand measures (including car parking limitations) to achieve mode shift across the area, the provision for fewer parking spaces than the expected number of resident cars (sourced from the Australian Bureau of Statistics 2011 Census data) can be accepted. However the BMAC Car Parking Strategy recommended minimum of 9 parking spaces is the absolute minimum[3] provision that will be considered for a development that is well served by public transport, the surrounding bicycle network and has good pedestrian access to shopping precincts.

Since this site is proposing 18 parking spaces and the BMAC Car Parking Strategy recommends a minimum provision of 14 parking spaces, the parking provision can be accepted.

1. I suppose that, if the development is going to the expense of providing car parking in a basement with the utilisation of car stackers, it may as well provide as many as those facilities allow, notwithstanding that the proposed provision still falls below clause 52.06.
2. The point of the above quotation is not in relation to the exact number of spaces offered or required, but rather that the Development Advice Engineer is indicating that a minimum provision on site ought to be insisted upon and that the requirement, though a reduction on the standard requirement, would nevertheless be a significant contribution to meeting the parking demand generated by the proposal. The advice is looking for something more than a minimal or token contribution whilst nevertheless countenancing a substantial reduction from the standard requirement.
3. This more recent referral response appears to be in stark and anomalous contrast to the equivalent response of 23 February 2015 in relation to the Florence proposal[4]. The equivalent passage in relation to the Florence proposal reads as follows:

The Commons (7-9 Florence Street) has been occupied since December 2013. Details of car ownership rates within the fully occupied 25 dwellings should be provided by the applicant in support of this request for a complete waiver.[5]

The green travel plan incorporates mandatory car share and public transport costs into the owner's corporation fees and is therefore considered a suitably robust model to support a[6] car free proposal.

The site has very good access to public transport with Anstey Train Station, the 503 bus and tram route 19 all within a 5 minute walk of the site. The Upfield bike path also passes close to the site. A car-share bay exists on street opposite the property. 50 bicycle parking spaces are provided onsite and 14 are proposed in the street.

Given the above and that the car-free intent of the development is made clear to all prospective buyers, the parking waiver is considered acceptable for the residents.

1. How did the referee come to write that last paragraph without the request in relation to The Commons car ownership having been complied with? Conversely, why was The Commons information sought, if it was not needed?
2. In any event, it is not only what is acceptable to the residents. What about other and nearby land owners, residents, tenants, commercial users and the public generally? Are they to be imposed upon, and parking opportunities in the streets nearby to be devoted to these two private developments to the exclusion of others and their visitors and customers, and where other developments are required to make a contribution to meet the car parking demand that they generate?
3. Although the various 'green' attributes of The Commons and the proposed Nightingale are commendable, those commendations are something separate from the provision of on site car parking and whether it should be completely waived. A development might be as green as can be, in all sorts of ways, and still generate a parking demand which should be considered on its own merits. The parking demand should be considered separately from greenness. A green development may generate a demand for parking and it is that, and not greenness in other respects, that must be considered. It may be that people attracted to a green development might also be more likely than the average to avoid car ownership but that does not, by any means, mean an absence of car ownership or an absence of parking demand. Indeed, the evidence in this case, including that in relation to The Commons, is to the contrary. How can it be good planning, or equitable in relation to Chaucer and other developers, that they should be required to contribute to the meeting of the parking demand they generate whilst The Commons and Florence are to be excused? If The Commons and Florence are to excused, why not Chaucer and all the others, including those yet to be proposed? I consider that this would be poor planning, and contrary to the purposes of clause 52.06 (to be discussed later). It would create just the sort of congestion that clause 52.06 seeks to avoid and would cause on street parking spill over well beyond the immediate area.
4. It appears to me that the information sought by the Development Advice Engineer in relation to The Commons was never obtained because of this paragraph at the top of page 17 of the officers' report. It reads:

Whether some occupiers of 7-9 Florence Street have cars should not preclude the proposed development from being permitted to have a parking reduction[7]. This type of development actively discourages car ownership, but it cannot prohibit it. Nevertheless, occupiers will only be able to park in the street in accordance with parking regulations. Owners and/or occupiers of the premises will not be eligible for any Council parking permits to allow for on street parking. This is noted in the recommendation.

1. It is not only the immediately nearby areas likely to be subjected to parking. The Neighbourhood Residential Zone, on the west side of the railway line, is not subject to council parking restrictions. As the quotation notes, whatever encouragement or discouragement there might be, car ownership at The Commons, and at Nightingale, cannot be prohibited. In fact evidence subsequently gathered in relation to The Commons indicates that a demand is generated by people who do own motor cars. This is common ground on the traffic engineering evidence from both sides, the only difference being in relation to the number and percentage of car owners.

The true issue is not reduction, but waiver or reduction to nothing

1. The above quotation refers to parking reduction, an expression frequently used in evidence and argument at the hearing, and in various documents referred to. The issue in this case is not that there should be a mere reduction. Indeed, it is common ground, not only that there can and should be a reduction, but there can and should be a substantial reduction from standard requirements. The issue raised by Chaucer is not that, but an objection that there should not be waiver or a reduction to zero. Chaucer maintains that Florence, like other developments, should make a contribution towards meeting the parking demand it generates. That is the issue. Repeated pointing to evidence or considerations justifying a reduction, or a substantial reduction, does not necessarily justify waiver or reduction to zero with no contribution where a demand is generated.
2. Furthermore, assertions that there is strategic policy justification for such a reduction to zero has frequently been asserted although, when I examined the relevant planning scheme provisions, it appears to me that the assertion is untrue. There is repeated reference to encouragement and enablement, reduction and sustainability, but not to policy provisions that actually get down to, or think through, strategic questions in relation to waiver or reduction to zero.
3. Chaucer poses the question, in effect, why should Nightingale not make a contribution where the evidence indicates that it will impose a demand? In my opinion no adequate answer has been given by the responsible authority, or the Nightingale applicant, to that question. A great deal has been said that is actually beside the point because it only justifies a reduction, indeed a substantial reduction (which is common ground), but not waiver or reduction to zero.

1. It is not for me to try and list all the matters that might be relevant for a proper strategic consideration and implementation of policies relating to waiver of car parking for developments of this sort in localities of this sort. Such a strategy would need to account for why some similar developments, like Chaucer, number 4 Florence Street, 216 Albion Street and other developments built, building or yet to be built should be required to make some contribution to meeting the demand they generate whilst others, like The Commons and Nightingale and perhaps others, are not to be subject to the same requirement. What is to be the basis of differentiation? What principle can make that distinction? In my view relative degrees of greenness in other respects are not a satisfactory answer in relation to the specific problems raised in relation to car parking.
2. How, and on what basis or principle is it to be decided which developments are to have this privilege? How, and on what basis or principle will saturation be recognised when no further leniency of that sort can be tolerated. Is it to be a simple first come first serve basis? That would be a crude criterion and it would not decide when saturation is reached?
3. I would have imagined that a well thought strategy of this sort would take account of motor bikes and motor scooters, as well as pedestrians, bicycles and various forms of motor car transport. I have not encountered or been referred to anything of that sort of pressure in the planning scheme.
4. The planning laws, including the Victoria Planning Provisions, make provision for such questions to be dealt with in local planning provisions and by means of such provisions as a schedule to clause 52.06, a parking overlay in accordance with clause 45.09 of the Victoria Planning Provisions and a schedule thereto. None of these things appear in the Moreland planning scheme.
5. I was referred to the Panel Report in relation to Amendment C133 to the Melbourne planning scheme dealing with residential parking rates. I note that this document, at page 3, refers to changes to the Melbourne Municipal Strategic Statement including the need to 'seek to protect residential access to on-street parking'.
6. The amendment and its recommendations are wider than just this question, but they included a submission of the council recorded at page 6 that reads:

Finally, the Scheme as it presently stands arguably does not provide sufficient support for very significant [reduction or]...waivers of car parking[8], no matter how appropriate in a particular area, and no matter how much such a waiver would assist in the implementation of sustainability objects. See for example, Porter v Port Philip CC [2007] VCAT 64 at paras [44] - [50] and [54] - [56] in which the Tribunal refused to grant a complete waiver of car parking, largely on the basis that there was no specific policy basis for a complete waiver.

1. I intend to refer again to that case but note the absence of policy in relation to complete waiver as distinct from reduction.
2. I note that even intensely developed inner suburbs vary in their nature and as to what is appropriate. Such variations are recognised in the report. What might apply to the Capital City Zone of Melbourne and Southbank can be different to other Melbourne suburbs discussed which, in turn, can vary amongst themselves.
3. The council, in that case, expected different numbers of spaces to attach to different dwellings or for them to be sold separately, thinking that there is a marketing benefit in selling residential properties exclusive of the cost of car parking and leaving the buyer to decide how many spaces are required[9].
4. Furthermore the panel, in that case, recommended inclusion in the planning scheme of incorporated documents to be added to the schedule in clause 81.01 of the Melbourne planning scheme. I find no such relevant incorporated documents in the Moreland planning scheme.
5. It appears to me that a proper strategic basis for complete waiver in situations like The Commons and Nightingale is work still to be undertaken by Moreland council as planning authority. In the meantime I think those advising the council as responsible authority need to read what actually does appear in the planning scheme with more care and discrimination.
6. There is, or at least there should be, more to these questions than inconsistent application in ad hoc decisions.

1. The planning officers' report to the responsible authority, on its page 16, lists eight dot points as the reasons why zero car parking is acceptable. Most of them are important considerations in relation to the common ground position that substantial reduction, as opposed to waiver, is appropriate. They do not relate to the key issue.
2. One of the supposed reasons reads:

The overall design ethos seeks to achieve leading edge sustainable development.

1. It does not strike me that this question of design ethos is actually a relevant consideration, and it does not appear as such in clause 52.06. So far as that clause is concerned it appears that this 'reason' is an irrelevant one. It is trite administrative law that an administrative decision maker who takes into account an irrelevant consideration makes an invalid decision.

1. The observation is made, on behalf of Chaucer, that the recently completed structure planning for the Brunswick activity centre makes no provision in relation to parking overlays or zero parking requirements unlike schedule 2 to the Melbourne Planning Scheme Car Parking Overlay.

Car Parking Provisions (AC) [2012] PPV 7 (25 January 2012)

1. Reference is also made to the above Advisory Committee Report chaired by Trevor McCullough and on which Henry Turnbull and Katherine Hunichen were members. At section 8.3.6 under the heading 'Dwelling' the following appears:

Significant opposition to zero rate was also received from developers. The current offering of residential properties within activity centres where no car parking is provided appears to have attracted little market support.

Both developers and Councils supported a minimum of one car space per dwelling within an Activity Centre Zone.

The Advisory Committee agrees that the argument put opposing the zero rate for the Activity Centre Zone and prefers the adoption of a rate of one space to each one or two bedroom dwelling for Column B. If an alternate rate is considered appropriate in a particular location, then a responsible authority has the option of reducing the rate through a Schedule of the Parking Overlay. If a developer wishes to provide a lesser car parking requirement (or visitor spaces), this could then be done through an application to reduce car parking requirement and be assessed against the criteria set out in Clause 52.06.

1. I do not propose to refer to every state policy mentioned in the course of the hearing. I note that clause 18.02-5 deals with car parking and has the objective:

To ensure an adequate supply of car parking that is appropriately designed and located.

Protect the amenity of residential precincts from the effects of road congestion created by on-street parking.

1. That might apply to the immediate locality having regard to the considerably increased residential development being encouraged. It certainly applies to the Neighbourhood Residential Zone to the west of the railway line.

1. Clause 21.02 of the planning scheme deals with the view taken of the future of this and similar areas in relation to housing and increased housing densities. I have referred to these matters in general terms already.
2. Clause 21.03 in relation to strategic framework does not, in my view, call for further comment here.

1. Clause 22.03 contains local policy in relation to car and bike parking and vehicle access. It applies throughout the municipality. It is full of encouragement for 'sustainable community' and for walking, cycling, public transport and the like. Clause 22.03-2 has a policy objective that car, bike and vehicle access and parking should be provided that:

Is suitable to the likely demand and nature of the locality.

1. Clause 22.03-3 sets out policy including reduced car parking rates in developments within or in close proximity to activity centres. Everyone in this current case agrees with that, and with the merits of shared car parking arrangements and other propositions in that clause.
2. Indeed, there is a dearth of local policy on car parking, and what little there is provides encouragement that is not in issue in the present case. I find nothing to justify the claim of a strategic policy basis for waiver or reduction car parking to zero for projects like Nightingale. Indeed they appear as contrary to the local policy quoted in paragraph 79 above.

1. I was referred to several other documents, some of them of the City of Moreland, in relation to parking and share car schemes. None of them are incorporated in the planning scheme and accordingly none of them are part of the planning law of Victoria. They support and encourage alternatives to car use and private car ownership although they do not, in my opinion, provide any further support in relation to waiver or reduction to zero of on site parking provision for developments like Nightingale.
2. The first was the Moreland Integrated Transport Strategy 2010-2019. At page 53 the significance of parking and car sharing is recognised and at page 58 travel plans are referred to. It recognises that there are problems and that the ideal of car sharing does not imply that it is a complete solution or that existing problems should not be made worse by new developments that make no contribution to the parking demand they generate.
3. Zero Carbon Evolution looks to the Moreland community achieving a carbon neutral situation such document. At page 31 there is encouragement for the use of public transport, the implementation of parking controls and permits and the provision of incentives to reduce the number of cars per household.
4. Next is Benefit Cost Analysis of Car Share within the City of Sydney Final Report June 2012 of SGS Economics and Planning to the council of the City of Sydney. At page 8 there is reference to North American figures that suggest reduced car ownership by people who become members of car share schemes in the range of 9-13 per share vehicle. At page 14 GoGet is referred to with the assertion that 60% of residents and 62% of businesses defer car purchases when such facilities are available. At page 15 figures are estimated for a reduced addition to car numbers due to car share schemes. However, this does not mean that there will be no increase in cars or parking, but merely that the increase would be less if there is a car share scheme. It does not account for the increase, though it be less than might otherwise be the case, or where it is to park.
5. Finally I was referred to Parking Management policies (policy number: DC1 31 CL) 13/7/11. This asserts a saving of 14 private cars per share car, although without, at least in the passages I was referred to, reference to any evidentiary or statistical basis. It is said such schemes are 'designed to reduce on street car parking pressure'. It may have been more accurate and relevant to contemplate planning for a considerable intensification of residential development so as to moderate the rate of increase in parking pressure that might otherwise be expected.
6. I have not read these documents as a whole, but rather the passages to which I was referred. They do not, in my opinion, advance the case for waiver, nor do they take the place of proper strategic planning policy on the topic.

1. It is common ground that the standard parking requirement for Nightingale pursuant to clause 52.06 would be 29 spaces. This would be made up of 20 spaces, one of each of 20 dwellings plus four visitor spaces at the rate of one visitor space per five dwellings together with two spaces for the 52.1m2 shop at four spaces per 100m2 of leasable floor area and three spaces for the 87.6m2 food and drink premises at four spaces per 100m2.

Purpose of clause 52.06 in relation to car parking

To ensure that car parking is provided in accordance with the State Planning Policy Framework and Local Planning Policy Framework.

To ensure the provision of an adequate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality.[10]

To support sustainable transport alternatives to the motorcar.

To promote the efficient use of car parking spaces through the consolidation of car parking facilities.

To ensure that car parking does not adversely affect the amenity of the locality.

To ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enables easy and efficient use.

1. I have emphasised the second purpose above because of its obvious importance, and because it does not appear, in the present case, to have been afforded that importance by the responsible authority or Nightingale.
2. Clause 52.06-2 requires the provision of car parking spaces in accordance with clause 52.06-5[11] to be provided to the satisfaction of the responsible authority on the land or in accordance with other specifications set out.
3. Clause 52.06-3 provides that a permit is required to:

Reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5...

1. Clause 52.06-5 is an elaborate provision including a table in relation to car parking requirements in relation to various land uses.
2. Clause 52.06-6 relates to applications to reduce standard car parking requirements. It requires that such applications 'must be accompanied by a Car Parking Demand Assessment'.
3. There follow a number of specifications in relation to the provision of such an assessment including that it must assess the car parking demand likely to be generated by the proposed new use.
4. The provision goes on to say that, before granting a permit to reduce the number of spaces to a number below the likely demand assessed by the Car Parking Demand Assessment the responsible authority has to consider the assessment itself and a number of other matters. These include the availability of alternative car parking in the locality of the land, efficiencies gained from the consolidation of shared parking areas, public car parks, on street parking in non residential zones and streets in residential zones specifically managed for non-residential parking.
5. Other such considerations include:
   • On street parking in residential zones in the locality of the land that is intended to be for residential use.
   • The practicality of providing car parking on the site, particularly for lots of less than 300 square metres.[12]
   • Any adverse economic impact a short fall of parking may have on the economic liability of any nearby activity centre.
   • The future growth and development of any nearby activity centre.
   • Any car parking deficiency associated with the existing use of the land.
   • Any credit that should be allowed for car parking spaces provided on common land or by a Special Charge Scheme or cash-in-lieu payment.
   • ...
   • The impact of fewer car parking spaces on the amenity, including pedestrian amenity and amenity of nearby residential areas.

There are matters to be considered. They do not dictate a particular conclusion.

1. These provisions, as I understand it, represent the so called 'two stage assessment' referred to by the traffic engineer called to give evidence on behalf of Nightingale where she claimed that Porter's case[13] has become superseded due to changes in clause 52.06 since that case was decided.
2. There have been changes, including this so called two stage assessment, but that does not mean that the approach or principles in Porter's case were wrong or should be disregarded.
3. As part of the Nightingale application GTA Consultants were engaged[14] to assess the Car Parking Demand Assessment but limited only to the commercial aspects of the proposal. I do not understand why such a limitation was imposed or why the assessment did not include the residential aspects which were clearly important. The assessment in the GTA report suggested zero to four parking spaces[15]. To cautiously take the worst case, that would be four spaces.
4. I cannot understand why the important residential parking was excluded. Some subsequent attempt has been made to make an assessment which I will discuss later. In the meantime, it seems to me that it would be anomalous, in making the assessment in the first place, to take account of the locational and access (including to public transport) advantages in arriving at the assessment, and, having done so, to then take them into account again as justification for making a reduction below the assessment.
5. It seems to me that the Nightingale application has failed to respect the second purpose recorded above and to comply with the so called two step procedure, and that the responsible authority has similarly failed to respect the purpose or require the assessment, at any rate except in relation to the residential aspect.
6. As previously mentioned, it is common ground that the standard parking requirement can, and should, in the circumstances, be substantially reduced. The excellent access to a variety of public transport, the bicycle path and situation within the Brunswick Major Activity Centre where a wide variety of shopping and services are available clearly support that position.
7. It is really also common ground that The Commons, does generate a demand for parking. There is dispute in relation to the quantum of the assessment.
8. The traffic engineer on behalf of Nightingale relies on a so called 'Survey Monkey' administered electronically to owners and occupiers of The Commons. No face to face interviews were conducted, nor actual observed or closed circuit TV evidence was collected.
9. This survey attracted respondents from only 13 responses, 52% of residents and 54% of apartments. Two ownerships, representing three occupants, admitted to private ownership of motor cars which are parked, when not in use, in unrestricted on street parking in Orient Grove in the Neighbourhood Residential Zone located on the eastern side of the railway. Not, I would have thought, an ideal arrangement, nor one that should be aggravated by repeated permissions for multiple dwelling developments on this scale with no on site parking at all being required.
10. Thirteen responses is such a small data base as to make this type of limited value.
11. It included a question as to whether a currently owned car might be disposed of in the next two years. On that basis it is said that car ownership in The Commons can be expected to decrease.
12. I see no justification for this hopeful speculation. It was pointed out, on behalf of Chaucer, that a car disposed of might be immediately replaced. In any event, there is quite a possibility that further cars might be acquired. Almost 50% did not respond to the Survey Monkey. It does not strike me as reliable to suppose that the non respondents have the same proportion of cars as the respondents. Elsewhere it was suggested that the pressure of peer public opinion is likely to repress a desire for private car ownership. It is just as likely to repress a willingness to respond to the survey by those who might, perhaps guiltily, currently own a motor car.
13. The assessment of The Commons on behalf of Chaucer was carried out by actual physical observation and by checking closed circuit television recordings. This resulted in assessment of seven to nine which, when applied in relation to Nightingale, was reduced to 5 to 7. That compares with a suggested 3 to 5 on behalf of Nightingale. I regard the Chaucer method of survey and assessment as more reliable, and I prefer it to the Survey Monkey. That is, quite apart from the partial corroboration claimed in relation to the Chaucer survey attributed to the so called 'Monash Study' being an academic paper by Chris De Gruyter and others based on observed surveys which included The Commons[16].
14. I appreciate that the responsible authority encourages Flexicar and GoGet arrangements and hopes to see a proliferation of them, including in this general area. I am told it hopes to see a considerable increase in such arrangements and that it will be sympathetic to providing more base sites for such share cars. Several references were made suggesting that the existence of an accessible share car arrangement can reduce private car ownership by as many as 10 to 14 cars. This is certainly constructive. However, I do not think that these surveys or estimates take account of the countertendency of some, who initially dispose of a car, or dispose of one because of share car arrangements, but who subsequently nevertheless acquire a private car.

1. Various other sources of car availability not involving private car ownership were referred to. Taxis are, of course, well known and a more recent service has arisen under Uber arrangements. There can also be so called 'peer to peer car hire' and 'car next door'. Such various arrangements offer degrees of convenience, although not as convenient as private car ownership. They will normally be considerably more economical than private ownership. However, unlike public transport, they do not necessarily represent a reduction in car usage or the various emissions involved in car usage that give rise to environmental concern. Perhaps, as they are less convenient than private ownership, reliance on them may mean a reduction in car use overall. Of course, a reduction in demand for actual vehicles would represent a reduction in the resources required to manufacture them and, perhaps, to import them.
2. Nevertheless, when all is said and done, no such arrangements, whether by means of alternative cars or public transport, are as convenient as private car ownership. Of course some citizens are unwilling or unable to walk or cycle at all or for considerable distances. Even a handy GoGet spot is not as convenient as having one's own car on hand to use at any time and for any purpose. A more distant shared car pickup is obviously less convenient and more distant cars again might be necessary if the nearer ones are already booked when required. Some planning ahead is required for making bookings rather than being able to use one's own car whenever desired. The movement of heavy or awkward loads may also be facilitated by private car, even the movement of heavy cases, books, files or shopping. The proximity of public transport can be a great convenience and saving, particularly if it can lead to frequently visited destinations. Even people who retain a car, or even two, may use them much less if they can get to work or make other common trips by tram, train or bus. However, even if the origin of a journey is proximate to public transport, that does not mean that the destination is likewise conveniently placed. Most post World War II suburbs were developed on the basis that people would have private cars so that many locations are poorly served, even barely served by public transport. The advent of children or changed relationships or altered workplaces can all reduce the convenience of such means of transport.
3. It is obvious that private car ownership is very popular in the community generally, even if a minority seek to do without private cars. Indeed, over the last century private cars have been liberating to many people, particularly the less well to do, who could never afford private transport by means of horses (with their upkeep) or horse drawn vehicles. Nevertheless, in recent decades there has been a rising appreciation of certain downsides in relation to such transport, even if car owners contribute considerably to revenue available for road construction by various taxes, including upon fuel. Concern about the effect of carbon laden fuels on the environment is both manifest and increasing.
4. In spite of such drawbacks, many people bear the considerable extra cost of car ownership. The advantages of private car ownership are sufficiently appreciated to suggest that it is a phenomenon that can be expected to continue in the decades ahead, even if an increasing number of people do without their own cars. I think that the evidence that I have accepted in relation to The Commons indicates that this is so, even for people with higher degrees of environmental consciousness and anxiety.
5. Some evidence called on behalf of Nightingale suggested that private car ownership is declining, or can be expected to decline in the Brunswick Major Activity Centre on account of the excellent public transport and increasing availability of alternative access to car transportation such as share car schemes and so on. However this is in the context of plans for great increases in residential populations. No time frame was provided although I took it that this prediction was looking one to two decades ahead. In view of current zoning and policies, already being realised by redevelopment as in Florence Street, such a prediction appears to me to be unrealistic. If light industrial land uses in single storey premises are to be replaced with developments like Chaucer, The Commons, Nightingale, 4 Florence Street and 216 Albion Road there will be more cars including more privately owned cars and potentially increased congestion due to on street parking if some significant proportion of 20 to 30 unit apartment buildings are permitted without making some contribution to meeting the parking demand they generate.
6. I accept that there are people who do not and will not require private cars and therefore parking. I accept that many are likely to seek accommodation in this locality. However, they can be provided for by reductions in standard car parking provisions in developments that also make some contribution to parking demand that is generated. It is not necessary to have parking free developments to accommodate them nor, as far I can see, does current policy deem it desirable. At any rate, I do not think it appropriate in the absence of strategic planning and appropriate planning scheme provisions containing guidelines and principles indicating how such things are intended to be managed.
7. I agree with the notion that available on street parking is better utilised by being available for business and its customers during the day and for visitors out of business hours. Public transport is, of course, less convenient for visitors. Someone owning a car in North Balwyn or North Beaconsfield wanting to visit a child, friend or grandchild, or to attend a book club or whatever at Nightingale is likely to use the car on the basis that public transport is not available or too inconvenient for getting to and from the destination. It does not appear as best use of what on street parking might be available for it to be taken up by resident private car parking.

1. This Nightingale proposal is brought forward by the same developer and architects as for The Commons. It is said by the traffic engineer called to give evidence on behalf of Nightingale that it:

...is a further evolution and refinement of the prototype project The Commons.[17]

1. It was claimed that the aim of the developer, in relation to The Commons, was 10% car ownership whilst that for Nightingale is zero percent. With 24 dwellings at The Commons 10% is between 2 and 3 although, as can be seen, the assessment of actual ownership, even on behalf of Nightingale, is higher than that. In spite of this 10% aim no parking provision was ever intended for The Commons.
2. Does this difference of 'aim' amount to more than a hope or wishful speculation? The two projects are essentially similar. Nightingale is for 20 dwellings rather than 24 with a majority being single bedroom whereas the majority in The Commons have two bedrooms.
3. The only other difference pointed to is the suggestion that The Commons units were sold on the open market whereas the developer intends to vet applicants for Nightingale dwellings with a view to obtaining, at least for the first generation of owners, people with values sympathetic to the green 'ethos' of the proposal. I should have thought the features of both would have a rather similar appeal in market terms. The method of marketing and proportion of single to double bedroom apartments, being the characteristics said to mark the alternative zero car ownership aim compared with the 10% aim for The Commons do not strike me as significant or persuasive. I do not give weight to the alleged aim of 0% ownership for Nightingale, nor do I think it more likely of achievement than has proved to be the case in relation to The Commons. The traffic engineer also says[18] that the residents of these projects are likely to share a 'sustainable vision' and that, accordingly, it could be reasonably expected that most, if not all, future occupants will not own a car.
4. I think that, in all the circumstances, it is reasonable to expect that some, though not most, future occupants will own a car which, if no on site parking is provided, will be parked in the streets.

1. The question was posed, on behalf of Nightingale, that if zero parking provision is not be accepted here, then where can it be accepted?
2. I take that to be intended to be a rhetorical question. It assumes that zero provision of parking will be acceptable in some places. That does not necessarily follow from the planning scheme provisions like clause 52.06. The question assumes there may be suitable places, not necessarily that there will be such circumstances.
3. However, I readily accept that there are circumstances in which zero on site parking can be accepted. I have granted permits on that basis on a number of occasions, and so have other members of the Tribunal. Speaking for myself, I cannot recall doing so in relation to a multi unit development to contain 20 dwellings in a context where other residential developments of a similar scale exist, have been applied for, are being developed and will be developed in accordance with important planning policies pointing to such development in the locality. On the contrary, the examples I can recall are for much smaller numbers of dwellings such as three or four, and in circumstances where the site cannot provide parking or where circumstances render that undesirable sufficiently to outweigh the disadvantage of there being no parking. Some allotments may be too small or such that the provision of parking might be prohibitively expensive. Also, it may be intended to retain existing buildings where that is desirable but where such retention prevents the provision of onsite parking. The retention of heritage buildings is an example, although I do not mean to limit possibilities to that category.
4. None of those circumstances, which in my view tend to support a zero parking proposition, apply to this Nightingale project.
5. In fact, as with many other aspects of planning, a judgement has to be made on the basis of the facts and circumstances of a particular case. On the first day of the hearing of the current case I asked for reference to other cases in relation to the zero parking question that might yield relevant guidance or principles. On the second day I was referred to the previously mentioned case of Porter v Port Phillip CC[19]. That case concerned a proposal for a new development of 13 dwellings with no car parking. Parking was the key issue and the Tribunal found insufficient policy support for a complete waiver. The Tribunal considered the question at some length at paragraph [33] to [56] including reference to some previous Tribunal decisions. That again was a case where a reduction was in order but not complete waiver. There was concern that waiver would saturate available on street parking and on the basis that this was not supported by policy. At paragraph [49] the Tribunal said:

In the absence of a parking limitation policy or other local policy providing guidance to car park free development, I find that approval of this proposal will represent a premature decision without policy support and create an inappropriate precedent for future proposals.

1. At paragraph [50] the Tribunal found that the evidence did not warrant a conclusion that the development would generate no demand for parking.
2. In Future Trek Pty Ltd v Monash CC[20] I granted a permit for a development with two storeys of office space and four dwellings and a waiver of car parking. The expert evidence was that a basement car park was not realistic in the circumstances of that case. The responsible authority opposed waiver. The importance of public transport and access to facilities, as well as the relevance of FlexiCar and like arrangements were referred to. One consideration was the availability of parking in the locality. That was a consideration which led me to initially take an interest in the market car park on the corner of Florence and Breese Streets. Ultimately I put that aside on the basis that it does not cater for residential parking and its future availability could not be assured. In central Melbourne dwellings can be and are approved without the provision of parking but commercial 24 hour car parks are available to people who want to live in the city and have a motor car. At paragraph [39] in Future Trek I said:

[39] A waiver in this case does not imply that waivers should be granted generally in all circumstances, even within a major activity centre. There will, no doubt, be cases where there should not be a reduction, let alone a waiver. I agree with the responsible authority that there will be other cases where a reduction, but not a complete waiver is appropriate. Nevertheless, perhaps particularly for 'shop top' developments involving small numbers of dwellings, as is the case in this current proposal, I consider that it can be appropriate to waive the otherwise applicable parking requirement having regard to the nature of the 'shop top' dwellings, the nature of the activity centre in which the site is located, the excellent access to public transport and other facilities, the demand for some accommodation for non car households, the limited size and number of dwellings here proposed and the relative inconvenience and unattractiveness of the proposed dwellings for car owning families. I think that waiver can be considered. Not only that, I consider it justified, having regard to these considerations, in the particular circumstances of this case.

1. Karanlight Pty Ltd v Yarra CC[21] was a proposal for a mixed use development in Rose Street, Fitzroy which included 12 apartments but no parking. It was a case involving many issues with traffic and parking dealt with at paragraphs [81] to [90]. At [82] there is reference to arrangements forming part of the development proposal including 22 bicycle spaces, FlexiCar share membership for occupants and annual Myki cards provided to occupants. Paragraph [83] referred to the recent approval of a 104 car commercial car park within 100m of the subject site where it was accepted that this would make a contribution alleviating parking demand.
2. Frydman v Port Phillip CC[22] was also referred to. It concerned a proposed mixed use development of seven retail premises and 30 dwellings in Acland Street, St Kilda. That is a rather larger number of dwellings in a busy Business 1 Zone. Paragraph [52] refers to clause 52.06 of the planning scheme as now providing that car parking can be reduced 'including reduced to zero'. I do not regard that as a change, although the observation made there is that it was thought to clarify an ambiguity. There is a good deal of discussion of reduced parking provision and ultimately waiver was approved.
3. At paragraph [72] the Tribunal said:

I am satisfied that there is a sizeable and growing number of smaller households that choose to live in the inner suburbs without a car. I think that it is highly likely that the residents of this development will not have private cars.

1. I regard that as being determined upon its own particular circumstances, so far as the likelihood of car ownership is concerned.

1. I accept that there are households without privately owned motor cars and for whom private car parking spaces are irrelevant. A suburban locality with good access to public transport and to retail facilities and services is obviously a convenient place for such people to live. Such households may be increasing in absolute numbers and as a percentage of households generally. Of course such localities have convenience advantages for all households and are conducive to less private car usage, even for those who own cars. A household may retain one car rather than two, and either event may use such cars much less than if the dwelling was in another locality. Others may have a car and relinquish it or have no car and acquire one. Others again might never have a car, or even a license to drive one. Such people may well prefer a dwelling with no car parking space.
2. I accept that there are such households and a place in the market for the provision of dwellings to suit them, particularly if the purchase price or rent may be less on account of there being no parking. However, I also consider that these needs can be met by dwellings where parking is not or cannot be provided, or by development like those considered in this case where there can be a substantial reduction in parking provision, and where many dwellings will not have space for private parking, though some provision may be made for those who do retain or acquire a car.

1. It was suggested that I might make an interim determination in this case providing an opportunity for a revised proposal to be brought forward. So far as Nightingale is concerned that suggestion was that a space for a FlexiCar might be provided at ground floor with access from the back lane, notwithstanding that such arrangements are not favoured by the promoters of such schemes. I do not regard that as meeting my concerns in relation to this case.
2. Beyond that, I think the provision of a contribution to the parking demand that I find would be generated would require a revision and redesign of the proposal which I consider that I should not embark upon.

1. Accordingly I consider that the objection of Chaucer should be sustained, that the decision of the responsible authority to grant a permit should be set aside and that no permit should be granted.

[1] This overlay has come into effect since the hearing.

[2] This address is given variously in various documents tendered including '11' and 7-11' Florence Street.

[5] It does not appear that this important information was ever obtained in relation to The Commons for the Nightingale proposal although it might be supposed that it would be important before this referee could tender final advice, much less the planning officers reporting and making recommendations to the responsible authority. The topic is dealt with rather skimpily on pages 16 and 17 of the officers' report with the requirement sought by the referee appearing in the paragraph at the top of page 17. I will quote it shortly.

[7] That sentence is unexceptionable, but the proposal here is not just a reduction, but a complete waiver.

[9] See third paragraph part 3.3 page 10 of the report.

[11] Or in accordance with a schedule to a parking overlay although there is no such overlay or schedule in this case.

[12] The Nightingale site is, of course, just over 477m2.

[15] See part 4.2.9 summary at page 9 of 13.

[19] [2007] VCAT 46.

[20] [2011] VCAT 1907.

[21] [2013] VCAT 279.

[22] [2012] VCAT 1838.