Victorian Civil and Administrative Tribunal|2009-07-20

Computer Parts Recyclers Pty Ltd V Melbourne CC [2009] VCAT 1347 (20 July 2009)

Melbourne Planning Scheme, Education Centre, Section 80 of Planning and Environment Act, Reduction in car parking provision, Clause 52.06

Stokes and Bell Pty Ltd, North West Melbourne Association Inc., R Ely, L Ely and G Irvin

The decision of the Responsible Authority is varied.
The Tribunal directs that Permit No. TP-2008-451 must contain the conditions set out in the Permit TP-2008-451 issued by the Responsible Authority on 27 November 2008 with the following modifications:
- (a) Condition 4 is amended to read:

Students enrolments must be restricted to international students only with the number of students on site at any one time not to exceed:

140 students Monday to Friday (except public holidays).
60 students Saturdays, Sundays and Public Holidays.

The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr Tim De Young, Traffic Engineer of GTA consultants.

Permit has been issued for use and development of second floor of building as an Education centre for private education of international students in hospitality and business. The permit issued includes a condition that restricts the use to accommodate a maximum of 60 students and 12 staff. The proposal is to amend the condition to enable up to 140 students to be accommodated at any one time.

cl 32.04-1 (use for education centre in Mixed Use zone)[1]

52 - 60 Chetwynd Street is occupied with a three storey office building and car park. The building is currently occupied by an office development in part ground and first floor, with the Melbourne City Institute of Education occupying the second floor in accordance with the approved permit TP-2008-451.

The site includes provision for six on site car spaces to the front of the office and a ground floor loading bay and storage area. Of these, two spaces are allocated for use of the education centre.

This review results from a decision of Melbourne City Council to issue a permit for an education centre on the subject site, but with a permit condition that restricts the use to 60 students at any one time. Details of the proposal, site and surrounds and policy context are detailed in the information above. In considering the merits of the proposal it is important to understand that:

The existing permit provides for six training rooms and a computer lab with associated staff offices and student common room. 2. The existing permit enables function of the centre with up to 12 staff and sixty students at any one time. Overall enrolments in the centre are 129 students, but students are currently staggered in course times across the week with only 60 on site at any one time.

The increase in numbers to 140 at any one time is requested by the applicant to enable full capacity of the centre. The physical space of the centre is restricted to use of 20 students[2] per class room (6 room x 20 students = 120 students) with an additional 20 students in the computer lab. Given class times are staggered and on any given day all students are likely to attend, the provision of 140 students is in effect a maximum capacity, rather than all day operating function.
Ms Merritt submitted on behalf of Council that it had imposed the permit condition to reduce the potential amenity impacts from change in use from an office that previously occupied the site. She stated these impacts could include noise from people coming and going and a greater demand on car parking given the mount of students. She then went on to provide a detailed explanation of Councils concerns regarding impacts on reducing the required car parking provision for a use of 140 students. I noted at the hearing that Council's submission made no assessment on other potential amenity issues such as noise to which Ms Merrit advised verbally that Council's key concern was the impact on car parking in the area.
Likewise, whilst respondents included issues of noise and increased pressure on car parking in the area in their statements of grounds but submissions made at the hearing argued solely on the basis that the increase in student numbers from 60 to 140 would result in loss of amenity through increased demand for on street car parking in the area that was already at a premium.
The centre as permitted with restricted student numbers has now been operating for six months. This has enabled some basis to assess the amenity impacts of the existing student numbers. Residents adjoining the property indicated that they were generally satisfied with the operation of the centre in its current form and had no issues with amenity relating to matters of students using the site, other than for impacts on car parking provision in the area.
My assessment of issues and findings therefore primarily addresses the impact of the increase in student numbers on car parking in the area and the impact of the increase on a requirement to waiver car parking requirements for the increase in use intensity.

What is the parking requirement for the additional use?

Ms Merritt submitted that Council would normally prefer education uses such as proposed to be located in the Capital City zone where there is immediate access to public transport and the parking requirement is therefore considered zero.
Based on the use being in a mixed use zone, however, Council had considered the use parking requirements on the provisions of Clause 52.06 of the planning scheme. This identifies a rate of 0.6 spaces per full time student and 0.2 spaces per part time student.
Council has assumed all 140 students will be full time and therefore applied the rate of 0.6 spaces. This requires a provision of 84 car spaces. Council then applied a credit of 21 spaces based on the previous office use of the building and 2 spaces for spaces on site, reducing the required number of spaces to 61 that need to then be considered for a waiver in the parking requirement in accordance with the provision Clause 52.06 - 5. For 60 students the dispensation required is 13 spaces. Council considers this figure to be reasonable given the range of public transport options that are in the general area, but not immediately adjacent to the site.
Council also noted that journey to work data of the area indicates that 49% of residents living outside the CBD drive to work and noted that the proposal fails to provide for half the staff parking (2 spaces for 12 staff permitted).
As council stated in its submission, they consider essentially the impact of 140 or 60 students comes down to 48 car spaces. The dispute is then whether there is sufficient rationale to waiver 61 car spaces required for student parking, rather than the 13 has Council has waivered.
Traffic evidence of Mr De Young on behalf of the applicant was that whilst the proposal is to allow up to 140 students at any one time on site, the students of the centre were effectively part time as the course operated on a 20 hour a week timetable. As such the addition of 80 students (from 60 to 140) would generate a requirement for 14 car spaces.
I find the provision and/or waiver of parking for staff has no relevance in this review, as the permit approved by Council provides for up to 12 staff on site and this is not disputed by the applicant. How many staff may or may not drive to the centre is therefore irrelevant. A similar form of comparison as Mr De Young provided I consider to be more rational. That is; whether the site can accommodate an additional 80 students that may generate a demand for between 14 and 48 spaces depending upon whether they are full time or part time.
Given the permit condition is to enable 140 students at any one time, I consider it reasonable to analyse the students as full time. It logical to assume the reduced parking requirement in the planning scheme is provided for part time students on the assumption that not all students will be on site at any one time and therefore there will be a sharing of spaces between students. In this proposal the request is to have 140 students on site at the one time, hence a peak demand is for 140 students to potentially require car parking at the same time. I therefore agree with Council's calculation that the parking requirement for the additional use is 48 spaces. The question then is whether it is reasonable to waive the need for these spaces.

Will the waiver of on site parking unreasonably impact amenity of the surrounding area?

Clause 52.06 states that a permit may be granted to waive or reduce a parking requirement if, amongst other things[3], the responsible authority is satisfied the reduction can be justified due to:
- The availability of car parking in the locality.
- The availability of public transport in the locality.
- Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.
- Any car parking deficiency or surplus associated with the existing use of the land.
- Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.
- Local traffic management.
- Local amenity including pedestrian amenity.
- An empirical assessment of car parking demand.
- Any other relevant consideration.
It was agreed by all parties, including Mr De Young, who provided expert traffic evidence for the permit applicant that there is a lack of availability parking in the immediate vicinity of the site. From my inspections of the site[4] I agree that Chetwynd Street has a lack of long term car spaces.
I however, agree with the evidence of Mr De Young that within a reasonable distance of the centre (400m walking distance), there are a number of 4 hour metered spaces that could be utilised by students if needed.
No credit can be given to on site student parking as the two on site spaces have already been accounted for in the provision of staff parking.
I find the key issue of importance is availability of public transport in the area. Whilst Council argued the site did not have immediate access to public transport, I find there is more than sufficient access to a range of public transport facilities. Most importantly of these includes Flagstaff station that is approximately 700m from the site. Based on standard walking distances applied in the planning scheme this equates to less than a 10 minute walk and was confirmed in my second inspection of the site. I do note that Flagstaff station is closed on weekends and public holidays as I discuss further below in paragraph 26.
The proposal is to provide education facilities for international tertiary students. I find that such a demographic is highly likely to use public transport and would be used to walking to access public transport.
Mr De Young provided details of a survey of students indicating that no student drove to the centre. Whilst the figures of this survey were disputed by objectors, I find it reasonable to assume that the survey is generally accurate. I accept that there may be instances where a student may travel by car, but given the lack of parking in the area I accept this would be an exception rather than the norm. I accept that students, particularly international students have fewer resources to access private vehicle transport and the costs associated with parking in inner city locations such as the subject site. I find these to be sufficient deterrents to students to desire to park immediately near the site, or travel by car at all.
The existing use has been operating for 6 months with 60 students on site at any one time. Objectors noted that during this time they had found operation had not detrimentally affected amenity in the area through noise of coming and going of students. One instance of a student parking in Chetwynd Street immediately in front of the centre was noted by neighbours with the student moving the car upon request of the neighbour. No evidence was provided that the current use had significantly altered or increased the stress on local parking provision. The survey provided by Mr De Young indicates that parking is already in high demand and that existing students do not utilise the parking in the area.
Mr Fetterplace offered that the permit applicant was willing to include an amendment to the permit conditions to restrict the use to international students only. I agree this is logical given the proposed use and demographic make up of international students in comparison to local students. This alteration to the conditions can work with other existing conditions on the permit to discourage students to use cars to access the site.
Importantly, the significant lack of parking in the immediate area means there is significant attraction of accessing the site via means other than private vehicle.
Regardless of whether there are 60 students on site at any one time or 140 students I therefore find that the lack of parking will not unreasonably reduce the amenity of immediate residents of Chetwynd Street through increased pressure on car parking in the street. This is primarily because the parking in the immediate area is already unavailable to students. Hence, whether there are 60 or 140 students, they are unlikely to be using the parking in the immediate area for general use as these are simply not the spaces in the immediate area to service their needs. This is borne out in surveys undertaken by Mr De Young on behalf of the applicant although I accept that the survey may not account for all students and all trips to the centre.
I find the lack of parking is not the key issue of relevance in this matter, but rather the capacity and likelihood for students to access other means of transport. I find that during week days there are sufficient public transport facilities and services that provide a sufficiently attractive alternative option to parking in the area, particularly when balanced against:

the lack of parking in the immediate area, 2. the cost of parking for non residents,

directions to students not to travel by car as provided for in existing conditions, and

the demographic make up of international students be willing to use alternative modes of travel to a private vehicle.
As noted in paragraph 18 the key public transport facility in the area is Flagstaff station that is closed on weekends and public holidays. This is a time when there is also reduced service on nearby tram routes. It is over weekends that I find there is more likely therefore to be a temptation for students to access the centre via private vehicle.
Although there is also likely to be greater on street parking availability over weekends I accept that this on street parking should be prioritised to residents in the general area and existing community uses. Weekends are also a time when residents could expect there to be an overall reduced intensity of use from commercial uses such this in the general area.
I therefore will retain a restriction on student numbers on weekends and public holidays.
Whilst other potential amenity impacts were not generally not contested at the hearing, I am mindful that the issue of noise was raised in statements of grounds of residents. No evidence, however, was provided to suggest that the existing 60 students on site were causing problem or that the increase in numbers may lead to excessive noise from students coming and going from the site. With the existing restriction on hours of operation I find that the there is no evidence that this increase in numbers will lead to an unreasonable loss of amenity through increased noise and disruption to what is already a busy mixed use area to residents in the area.

It therefore follows that I will direct that condition 4 be amended as outlined in the order.

[1] Permit application TP-2008-451 was for use and development. Endorsed plans have now been issued by Council. The matter subject of review is use only and the associated reduction in car parking required.

[3] I have only listed what I find the relevant decision guidelines of Clause 52.06 - 1.

[4] I visited the site via vehicle on 8 July 2009 and as a pedestrian from VCAT in King Street, via Flagstaff Station on 14 July 2009.

Computer Parts Recyclers Pty Ltd V Melbourne CC [2009] VCAT 1347 (20 July 2009)

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Computer Parts Recyclers Pty Ltd V Melbourne CC [2009] VCAT 1347 (20 July 2009)