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[2001] VCAT 1861
appellant. Tribunal granted the permit sought by the applicant, affirming the Responsible Authority and directing issuance of a permit allowing industry (printing), a four-space reduction to required car...
VCAT held that an extension at 138 Union Road intended to serve an existing printing business should be characterised as 'industry' (printing). Applying the Clause 52.06 criteria and an empirical, site-specific assessment of parking demand, the Tribunal reduced the required six car spaces to two, authorised modification of loading bay requirements subject to conditions, and granted a permit because no material amenity harm was shown and a net community benefit would result. Conditions tied the permit to the printing business and specified detailed plan, loading, parking and amenity safeguards.
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P. Daley (New Litho) sought planning permission to extend an existing building at 138 Union Road, Surrey Hills, for additional floor area to be used for the printing business, associated storage and office activities, and to seek dispensations from the Boroondara Planning Scheme requirements for car parking and loading bay provision. The matter proceeded to VCAT as a review under s79 of the Planning and Environment Act following the Responsible Authority's failure to determine within time and a later delegate report indicating a willingness to refuse (paras 1, 3).
No linked legislation citations have been extracted yet.
During the Tribunal process the applicant modified the intended use of the extension from housing a new printing press to predominantly storage, with the front building to be used for offices (para 15). The Tribunal inspected the site and the spread of New Litho's operations across nearby properties (paras 4, 12-13). The principal contested issues at hearing were (a) the characterisation of the intended use (industry v office/store), (b) whether the standard parking requirement for industry could be reduced, and (c) whether the loading bay requirements could be modified to fit the constrained site layout (paras 18-19, 23-24, 36-41).
VCAT applied the 'real and substantial purpose' characterisation test, followed the High Court approach in Shire of Perth v O'Keefe and Harrington v City of Nunawading, concluded the activities formed part of the integrated New Litho printing business and therefore were to be characterised as 'industry' (paras 20-23). On parking, after an empirical assessment of employee numbers, existing parking practices, available on-street spaces and the City Engineer's advice, VCAT reduced the on-site parking requirement from six to two spaces (para 35). On loading, VCAT accepted internal loading provision and the practical pattern on the site where car spaces sit in front of roller doors, and authorised a modification of the standard loading bay requirements subject to conditions (paras 36-41). The Tribunal concluded that the permit would produce a net community benefit and granted the permit subject to detailed conditions, including the requirement that the land only be used for activities associated with the printing industry at New Litho (ORDER; para 45).
Several legal and factual anchors guided the decision.
Characterisation of use: The Tribunal applied the High Court's 'real and substantial purpose' test as articulated by Kitto J in Shire of Perth v O'Keefe and applied in Harrington. The test asks what, in ordinary terminology, is the appropriate designation of the purpose served by the use at the material date (para 20). VCAT found the expansion was functionally part of the established New Litho operation, printing, storage and some office functions were components of the integrated business, and thus properly 'industry' (paras 20-23).
Parking discretion and empirical assessment: Clause 52.06 permits a reduction of standard car parking requirements where the applicant satisfies the Responsible Authority in accordance with a list of matters, including an empirical assessment of parking demand (para 24). VCAT found the local Clause 22.03 parking policy was not to be read as excluding the Clause 52.06 criteria; where apparent conflict existed, the scheme should be read so as to resolve inconsistency, and specific State provisions should prevail (para 33). The Tribunal accepted the applicant's empirical case on staffing, observed existing operational arrangements, and found that combined on-site and adjacent parking could meet demand, permitting a reduction from six to two spaces (paras 30-35).
Loading bay modification: Clause 52.07 prescribes loading bay dimensions and access but allows modification where adequate loading/unloading provision is made to the satisfaction of the Responsible Authority (paras 36-37). VCAT accepted internal provision for loading and observed long-standing practice across the New Litho complex of parking spaces in front of roller doors, with no evidence of adverse impact (paras 38-41). Given the infrequency of loading and available temporary space in the widened lane, VCAT concluded modification was acceptable with conditions (paras 39-41).
Balance and conditions: VCAT balanced local amenity and parking objectives against the municipal policy aim of retaining local industries that serve community needs, finding a 'net community benefit' in allowing the expansion with conditions designed to mitigate potential future intensification or amenity impacts (paras 42-45). The Tribunal used permit conditions to tie the dispensation to the specific printing business, reducing the risk of future, unrelated intensification (para 34; ORDER).
Before this decision, established tests governed both characterisation of use and the exercise of planning discretions:
The 'real and substantial purpose' test (Shire of Perth v O'Keefe) was well settled and had been applied in Victorian authorities (Harrington).
Clause 52.06 and Clause 52.07 already provided the statutory framework for parking and loading discretionary reductions.
VCAT's decision did not create new law but applied these settled principles in a fact-specific way with two notable emphases:
It affirmed that an empirical, site-specific assessment of parking demand under Clause 52.06 can be decisive even where a local policy nominally sets different rates; where a local policy appears to preclude such consideration, the specific State provisions of the Scheme should be given weight (para 33).
It recognised pragmatic operational layouts (car parking in front of loading doors) may be acceptable where evidence shows no material detriment, provided appropriate conditions manage amenity and access (paras 39-41, 45).
Thus after the decision, practitioners can point to Daley v Boroondara as support for (a) reliance on an empirical parking assessment to justify reductions, and (b) tailoring permit conditions to limit future intensification risks. The case is primarily an application of precedent rather than an alteration to legal doctrine.
Quoted passages below are followed by a translation into plain English and an explanation of why they matter.
Quote: "by asking what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date" (para 20).
Plain-English: To decide what the use is called, ask what most people would call it based on how the premises are actually being used now.
Significance: This is the operative test for classifying the use; it anchors the Tribunal's decision to treat the site as 'industry' rather than merely 'office' or 'warehouse'.
Quote: "I was sufficiently persuaded by Mr Bowden's submissions in this case that the proposed use lends itself to an empirical analysis of the likely demand for car parking." (para 33)
Plain-English: The Tribunal accepted that this situation could be resolved by looking at actual data and local conditions, rather than relying only on general parking rules or policy formulas.
Significance: Supports the approach of doing a site-specific, evidence-based parking demand assessment under Clause 52.06.
Quote: "I find in all of these circumstances that it is appropriate to reduce the on-site parking requirement under the Scheme from six to two spaces." (para 35)
Plain-English: After considering the facts, the Tribunal decided the site only needs two car spaces instead of six.
Significance: The practical outcome; shows how Clause 52.06 discretion can operate when justified by the evidence.
Quote: "I am persuaded that New Litho meets these local social and economic objectives... a net community benefit would result from the grant of a permit and I will so order." (para 45)
Plain-English: The Tribunal found that keeping and expanding this local business helps the community and outweighs any small harms, so it approved the permit.
Significance: Demonstrates the Tribunal's balancing of amenity harm against broader municipal policy objectives and public interest.
This decision is most directly applicable where:
A proposed use sits ambiguously between 'industry', 'storage/warehouse' and 'office', but forms part of an integrated business operating over multiple premises; the 'real and substantial purpose' test can be used to classify the use as industry (paras 12-23).
An applicant seeks a parking dispensation under Clause 52.06 and can marshal an empirical, site-specific case (staffing levels, shared parking arrangements, public transport, on-street availability, operational schedules) to show likely demand is lower than standard ratios (paras 24-35).
Loading bay spatial constraints exist such that car spaces would be located in front of a roller/tilt door, but the applicant can show operational practice, infrequency of loading and temporary vehicle movement arrangements mean no material amenity impact will result (paras 36-41).
The Responsible Authority's local policy appears to prescribe rates that conflict with Clause 52.06, this decision supports giving effect to the Clause 52.06 criteria where an empirical assessment justifies it (para 33).
In short, fact patterns involving integrated businesses with non-standard but demonstrable parking/loading practices, and where robust facts can be presented, are the primary triggers.
This judgment does not include discussion of subsequent appellate treatment or citation by later courts. The decision largely applies established High Court and Victorian Full Court authority (Shire of Perth; Harrington) to the facts. To determine subsequent treatment, researchers should run citator searches (e.g. AustLII, LawCite, VCAT databases) for citations to Daley v Boroondara [2001] VCAT 1861. The present text contains no internal discussion of later judicial treatment (the decision predates later citations).
The Tribunal resolved the matter on the specific facts before it, but some questions remain open or inherently fact-sensitive:
Scope of empirical assessment: The decision endorses site-specific empirical evidence under Clause 52.06 (para 33). What quantum and methodology of evidence will satisfy a Responsible Authority in other contexts remains fact-dependent; the judgment does not prescribe standardised metrics or thresholds.
Precedential reach regarding loading/parking layout: VCAT accepted car spaces in front of loading doors as acceptable here because of historical practice and lack of evidence of harm (paras 39-41). That acceptance is explicitly pragmatic; whether other tribunals will accept similar layouts without robust local operational evidence is unresolved.
Effect of permit conditions tying the use to an existing business: VCAT used a condition limiting the use to activities associated with New Litho to manage the risk of future intensification (para 34; ORDER). The endurance and appropriateness of such restrictive conditions where premises change ownership may prompt legal challenge in different factual contexts.
Interaction with local policy: VCAT criticised Clause 22.03 as 'deficient' insofar as it could appear to preclude Clause 52.06 considerations (para 33). The extent to which local policies should be re-written or interpreted to more clearly accommodate Clause 52.06 assessment is a policy question rather than a legal one; the judgment invites authorities to ensure scheme coherence.
Evidence of detriment: The Tribunal repeatedly noted the absence of evidence of amenity harm. The precise evidentiary standard for proving amenity or traffic detriment in similar disputes is not fixed by this decision.
Practitioners should treat Daley as a fact-driven example showing that carefully assembled empirical evidence and detailed permit conditions can secure parking and loading dispensations, but must anticipate that outcomes depend heavily on the local context, the quality of evidence and the balance struck by decision-makers.
Planning List; Section 79 Planning and Environment Act; Boroondara Planning Scheme; Business 2 Zone, Real and Substantial Purpose - Printing Industry, Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 and Harrington v City of Nunawading [1985] VicRp 64; [1985] VR 641 Followed; Clause 52.06(1) Reduction of Car Parking; Clause 52.06 Modification of Loading Bay Provisions; Net Community Benefit; Empirical Assessment of Car Parking Demand
Medium Neutral Citation [2001] VCAT 1861
The decision of the Responsible Authority is affirmed. A permit is granted and directed to be issued in relation to planning permit application No. BOR/99/6747 for the land at 138 Union Road, Surrey Hills.
The development and use of the land, in accordance with the endorsed plans, for the purpose of industry (printing), a four space reduction to the required number of car parking spaces and modification of the loading bay requirements.
1. Before development starts, three copies of amended plans to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for endorsement to form part of the permit. The plans, which must be drawn to scale with dimensions, must be substantially in accordance with the plans submitted with the application, but modified to show:
(a) The extended floor area described as "storage".
(b) The inclusion of an area adjacent to the rear roller/tilt door, and with dimensions of 7.0m x 3.0m, set aside as a loading bay.
(c) A roller shutter door or confirmation that the tilting door design enables loading access.
(d) A schedule of all proposed external finishes, colours and materials, that is in keeping with the appearance of the existing building.
(e) An area set aside for a rubbish or an industrial waste bin, which must not be located outside the building so as to be visible from public areas.
(f) Details of any external mechanical ventilation equipment, which must be designed and located so as not to be visually intrusive when viewed from public areas.
2. Before the development starts, a street vegetation management plan must be submitted to and approved by the Responsible Authority. The plan must demonstrate that works carried out on or adjacent to the land can be undertaken in a manner that does not cause damage to street vegetation. The plan must be prepared by a qualified arborist or horticulturist to the satisfaction of the Responsible Authority. The approved plan forms part of this permit.
3. The internal layout and use of the building, and the size, design and location of the buildings and works on the site as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
4. Except with a further permit, the land may only be used for activities associated with the printing industry at 124-132 Union Road, Surrey Hills.
5. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.
6. The amenity of the area must not be adversely affected by the use or development as a result of:
(a) The transport of materials, goods or commodities to or from the land.
(b) The appearance of any building, works, stored goods or materials.
(c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
7. Noise from the premises must not exceed the limits prescribed under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.
8. Collection of industrial waste must not cause any disturbance to nearby residential properties and may only occur between the hours of 7.00 a.m. to 7.00 p.m. Monday to Saturday and 9.00 a.m. to 6.00 p.m. Sundays and public holidays.
9. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service.
10. Except during loading or unloading operations, the loading bay must be kept shut to minimise the transmission of extraneous noise from the premises.
11. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building without the prior written consent of the Responsible Authority.
12. The areas set aside for car parking shown on the endorsed plans must be made available for use free of charge to employees at all times and must not be used for any other purpose.
13. Before the use starts or any building is occupied, the area set aside for car parking and access on the endorsed plans must be:
(b) formed to such levels and properly drained so that it can be used in accordance with the plans;
(e) clearly identified as being set aside for car parking
14. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of the Responsible Authority.
15. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.
* The development does not start within two (2) years of the date of this permit; or
* The development is not completed within two (2) years of the date of commencement.
The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or within three (3) months afterwards.
* The use of the premises for other purposes, including other types of industry, may be prohibited or subject to further approval from the Responsible Authority.
* Unless no permit is required, advertising signs must not be constructed or displayed without further approval from the Responsible Authority.
For the applicant for review: Mr Colin Bowden, planning consultant with Bowden Verhoeven
For the responsible authority: Mr William Chow, planning consultant with Zoneworks
1. This was an application under Section 79 of the Planning and Environment Act 1987 (P & E Act) to review the City of Boroondara's failure to grant a permit within the prescribed time to construct alterations and additions to an existing building, to use the land for the purpose of industry (printing) and to reduce the Scheme's requirements for car parking. The application was lodged in August 1999. Following a request for further information, such information was provided in February 2000. The application was directed to be advertised and two objections were received. One from a business at 129 Union Road and one from a resident of Faversham Road, located some distance from the subject land. The latter objector, Mr Clark, forwarded grounds for contesting the subject application for review, but he was unable to attend the hearing. I have taken his grounds into consideration in making my determination.
2. Mr Chow summarised the grounds for objection as follows:
* Lack of parking will stifle business and business tenants in the area.
* Less parking available north of the railway in Union Road.
* Expansion of New Litho will increase traffic and danger in the area.
* More car parking required and not less spaces.
* Need to work out where current and future employees will park."
3. The subject application for review was lodged in September 2000 and in November 2000 the Responsible Authority's delegate resolved that it would have refused a permit on the following grounds:
"1. The proposal fails to satisfy the parking requirements specified Clause 22.03 of the Boroondara Planning Scheme for use as industry and office.
2. The development does not provide a loading bay on site in accordance with Clause 52.07 of the Boroondara Planning Scheme.
3. The provision of two (2) on site car spaces in front of the tilt a door is an unsatisfactory site layout.
4. The proposed development will result in further intrusion of commercial car parking into residential areas."
4. At the hearing the representatives of the parties tabled and spoke to written submissions. These, together with the plans, photographs and other documents tendered in the course of the hearing have been attached to the Tribunal's file. Following the hearing and in the company of a representative of both parties, I inspected the subject land and the various other premises owned by the permit applicant and operated as the New Litho Printers and Publishers business.
5. The proposal as described in the permit application form lodged in August 1999 was for:
"Dispensation of car parking and building setbacks for an extension to an existing building for light industrial purposes (printing business)."
6. The permit applicant wishes to construct a 134sq m, single storey addition to the rear of an existing single storey, 95sq m building located on the south-west corner of Union Road and Croydon Street, within the Surrey Hills Shopping Centre one block north of the railway line crossing.
7. In common with other properties in the block fronting Union Road between Sunbury Crescent (bordering the rail line) and Croydon Road, the subject land has access to a 3m wide rear laneway. West of this laneway properties facing Croydon Road are zoned and used for residential purposes. I was advised that the permit applicant's own dwelling is the first of these dwellings, being located on the west side of the lane and fronting Croydon Road. As part of this application, and in keeping with other properties abutting the east side of this lane, it is proposed to widen the lane to the rear of the subject land giving an overall width of 6.4m. Two car spaces would be provided to the rear of the building extension accessed via the widened lane and it is proposed that a 4m high tilt-a-door would be provided in the rear wall of the building opening to the car parking area and thence to the laneway.
8. At the time the application for permit was lodged, the subject land was zoned Light Industrial under the then Boroondara Planning Scheme and a permit was required to dispense with certain of the building setback requirements for this zone as well as to reduce the Scheme's requirements for off-street parking.
9. In December 1999 Boroondara's Victoria Planning Provisions (VPP) format Planning Scheme came into operation. Under this new Scheme the land is zoned Business 2. The relevant purpose of this zone is:
"To encourage the development of offices and associated commercial uses."
10. Use of the land for industry, a Section 2 purpose within the zone table, now requires a permit pursuant to Clause 31.01-2 of the Scheme. The construction of any buildings and works also requires a permit within this zone (Clause 34.02-4) and a permit must still be obtained to reduce the Scheme's requirements for off-street parking. The relevant provisions for parking are now at Clause 52.06. The subject land is also affected by an Environmental Audit Overlay however, for the purposes of this application, the overlay has no relevance.
11. In addition to the general decision guidelines at Clause 65.01 of the Scheme; including the matters set out at Section 60, the State and Local Planning Policy Framework, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area, specific decision guidelines in relation to use and development of land within the Business 2 Zone are set out at Clauses 34.02-2 and 34.02-4. These include:
* The effect that existing usage may have on the proposed use.
* The interface with adjoining zones, especially the relationship with residential areas.
* The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and landscaping of land adjoining a road and
* The storage of rubbish and materials for recycling.
12. The permit applicant operates a "state of the art" printing and publishing business which is spread out across a variety of allotments on the west side of Union Road. This light industrial business, known as New Litho, commenced operation in the late 1960s, under the direction of the present permit applicant's father, and was conducted from a single premises on the corner of Sunbury Crescent and Union Road, some 35m south of the subject land. Over the years all but one of the then industrial zoned properties between Sunbury Crescent and Croydon Road have been acquired and converted for various activities associated with New Litho's printing and publishing business. Building extensions have been constructed (in 1983, 1987, 1993 and 1995) and the rear lane has been, in effect, widened to facilitate rear access for parking and loading. A modern two storey office building on the north side of Croydon Street, opposite the subject land, has also been constructed to house the composite graphics activities of the industry. This building includes 12 undercroft car parking spaces.
13. The only property in the strip between Sunbury Crescent and Croydon Road that is not owned and occupied by New Litho is a two storey furniture factory building located immediately to the south of the subject land at 134-136 Union Road. As with all of New Litho's premises, this furniture factory has been redeveloped in recent times to include a widening of the right of way and with provision for car parking to the rear of the building with roller door loading access in the rear wall to the front of the car parking spaces.
14. The existing building on the land has a long history of prior use as a dentist's surgery. A crossover to Croydon Street confirms that provision was made for off-street parking within part of the yard to the rear of the building. Following the applicant's purchase of the property the rear yard fencing was removed and the yard was cleared for redevelopment. While in this vacant state it has been used as an informal car parking area for New Litho staff. It can accommodate approximately eight vehicles. The building itself is currently being occupied by three New Litho design staff. As such it may be described as an office which is an as of right use in the zone and, provided three car spaces are made available, consistent with Clause 52.06, no permit would be required for the present use.
15. In documentation accompanying the subject application for permit and reinforced by later correspondence provided in response to the request for further information, it was stated that New Litho intended to use its proposed 134sq m extension to house a new printing press, to be worked by a single operator, as well as for the storage of printing material. By the time of the hearing - and more particularly during my detailed inspection of the premises - it became apparent that the need for a new press had become less urgent - other technologies being available. Accordingly, as stated in Mr Bowden's letter of 1 February 2001, "the applicant now proposes to use the entire new development for the purpose of storage, while the existing building at the front of the site will be used for associated office purposes, as previously indicated". This further submission was forwarded at my direction, in order to clarify the intended purpose of the proposed new extension.
16. In correspondence from Mr Wicks, Acting Manager Statutory Planning for the City of Boroondara, in response to Mr Bowden's further submission, Mr Wicks submitted that the change in the nature of the use to predominantly storage, should be regarded as "a substantial change", that the Council may have decided the application differently had it known that the new press had been abandoned, and that a fresh application ought to now be lodged. Mr Wicks went on to say also that:
"Council also questions whether the proposed use is in fact permissible in a Business 2 Zone. It is noted that a "warehouse" (which includes a Store) is prohibited in this Zone, and any storage activity can only occur on an ancillary basis to say, an industrial use. It is questionable whether the storage of goods in a separate building on a separate title really amounts to an ancillary use. It also raises questions about the legitimacy of the storage use if the property is sold to another operator with no connections to New Litho's printing business."
17. I find I must reject Mr Wicks' suggestion that warehouse, or indeed store, is a prohibited use in the Business 2 Zone. A simple reading of the zone table confirms that, like industry, warehouse is a Section 2 use provided, again as with industry, it is not a purpose listed in the table at Clause 52.10. It was accepted by all parties at the hearing that printing is not a purpose listed in the table to Clause 52.10. As to the question of whether the change of intention in relation to the printing press is a "substantial change", given my finding that with or without the press the use is best characterised as "industry" I find that the change is not so substantial as to constitute a transformation. It is a change that can be contemplated under the provisions of Clause 52 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and I so amend the application for permit.
18. The focus of this application for review was on off-street parking and loading. Although a permit is also required for buildings and works, the scale, siting and design details of the proposed building were not really in issue. The new extension has been designed to reflect many of the architectural details of the existing building and the comments of the Council's Urban Designer, which were included in the officer's report, were that:
"* The proposed extension will have a minimal visual impact on the streetscape of Union Road and Croydon Road.
* The introduction of an awning to the front is supported.
* Vehicle access from the right-of-way is supported."
19. It would be fair to say also that the nature of the proposed use of the building - whether for printing or storage or offices or a combination was not to any material degree an issue either. The disagreement lay with the matter of car parking and to the extent that an assessment of car parking relies on an understanding of the specific use, it is necessary to have agreement as to the appropriate characterisation of the use. A preliminary question to be decided therefore is whether the office, storage and possibly press activity to be conducted from the premises can be categorised as industry, the proposed activities being ancillary components of the New Litho printing works, or whether the more limited description of office and store should be applied or even store with ancillary office or office with ancillary store.
20. Having given this matter some consideration I have reached the view that the most appropriate characterisation of the use is for the purpose of industry, namely printing. In reaching this finding I have followed the approach set out by the High Court in Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, where Kitto J, in considering the real and substantial purpose of a use found that the appropriate designation of a purpose is a question of fact to be determined "by asking what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date".
21. In Harrington v City of Nunawading [1985] VicRp 64; (1985) VR 641, 646 the Full Court of the Supreme Court applied the test advanced by Kitto J in Shire of Perth to find that a premises, originally used for baking bread but later, when the baking activity moved to other premises, continued as a distribution depot for the baking business, was nevertheless being used for the purpose of a bakery because the parts served "as the one integrated and indivisible (bakery) business".
22. Whilst these cases were both concerned with the categorisation of non-conforming uses, I nevertheless find the basis for the decisions made in those cases to be relevant here. If asked to determine the purpose to be served by the office and storage activities to be conducted from the subject site - even in the context of a printing press being reintroduced - I think it very clear, based on the material put to me in this case and from my inspection of the subject land and other parts of the New Litho premises, that the intended purpose is as part of that printing business. The use therefore can properly be found to fall within the Planning Scheme's definition of industry namely:
d) winning clay, gravel, rock, sand, soil, stone, or other materials (other than Mineral, stone, or soil extraction);
e) laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; or
If on the same land as any of these operations, it also includes:
a) storing goods used in the operation or resulting from it;
b) providing amenities for people engaged in the operation;
c) selling by wholesale, goods resulting from the operation; and
d) accounting or administration in connection with the operation.
If Materials recycling, goods resulting from the operation may be sold by retail."
23. Having made this finding it follows that my consideration of the question of car parking and whether, pursuant to Clause 52.06-1, the Scheme's standard requirement for parking may be reduced, needs to be made in the context of the land being intended to be used for the purpose of industry.
24. The standard parking ratio for industry is for 2.9 spaces per 100sq m of net floor area. Net floor area does not include space used for stairways and loading bays. As will be indicated later, the permit applicant accepts the need to provide for a loading bay, this being the case the net floor area is approximately 200sq m, giving a requirement for six car spaces. Pursuant to Clause 52.06-1 a permit may be granted to reduce or waive the number of car spaces required. However, before a requirement is waived "the applicant must satisfy the Responsible Authority" that the reduced provision is justified due, among other things, 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.
25. In addition to the decision guidelines at Clause 52.06, there is a local planning policy at Clause 22.03 which deals specifically with parking in Boroondara and is stated to apply "to all applications for planning permits for a change of use or new development". Interestingly this policy does not appear to apply where the change in use does not require a permit - for example when a use is as of right and all that is required is a permit to reduce or waive parking in relation to that use. In the Business 2 Zone this could include changes of use to an office or in a Business 1 Zone a change of use to a cinema or in certain instances, a restaurant.
26. Relevant objectives of the Clause 22.03 policy include:
"* To ensure that each change of use or new development provides sufficient parking to meet its own demands in appropriate locations.
* To maintain the amenity of residential areas by minimising overspill parking from adjacent non-residential uses and centres.
* To avoid parking and traffic difficulties in the development and its surrounds.
* To ensure fair and equitable treatment of all land owners and users."
27. Under this policy industrial uses are to provide 2.5 car spaces per 100sq m of leasable floor area. Leasable floor area is defined in the Scheme as "that part of the net floor area able to be leased". I would suggest that this would be the same area as that for net floor area in this case that is approximately 200sq m. Accordingly pursuant to this policy five car spaces would be required.
28. At Clause 22.03-3, among other things, it is policy that:
"* Car parking (other than in the area defined as Camberwell Junction on the attached plan) be provided on site in accordance with the attached Table 1.
* Requests for dispensations, or reductions from the rates in Tables 1 and 2, comply with the situations set out in attached Table 3.
* Applicants provide information which demonstrates that the special circumstances can justify lower than standard levels of on-site parking provision, and that the planning objectives can be met on a continuing basis."
29. The "situations" set out in Table 3 of the policy are mostly not relevant to the subject application. They include, nearby, public off-street parking is available nearby and while there is a station car park opposite it is reasonable to conclude, based on signs within that car park, that these spaces are available only for train travellers. The special situations also refer to taking account of past deficiencies and where existing uses have already contributed to separate rate or payment in lieu schemes. The only possible applicable dispensation is where "on-street parking is available along the site frontage or along nearby non-residential frontages".
30. Mr Bowden relied on the City Engineering Department's assessment of this application - which was set out in the officer's report to the delegate. This assessment states in part:
"Parking surveys indicate that long term parking is available within 400m of the subject site. However while long term parking is available this parking is predominantly within residential streets." (emphasis added)
31. The report goes on to state, having analysed the on-site provision for parking and loading, that "therefore given the points raised above there is no reason to refuse the application on traffic grounds at this time" (emphasis added).
32. Mr Bowden contended that there is short term parking available in Union Road and that given the acknowledged deficit ie. three spaces under the policy or four spaces under Clause 52.06, that the City Engineer's advice that long term parking was available, albeit "predominantly" in residential streets could be interpreted to mean that some and certainly three or four spaces could be available without undue impact on amenity or traffic flows in the area.
33. The Local Planning Policy for parking is, I think, deficient in that it fails to allow for the consideration of matters which Clause 52.06 specifically provides for. Section 7(4)(1)(a)(b) of the Planning and Environment Act 1987, dealing with the structure of planning schemes, states that if there appears to be an inconsistency between different provisions of a planning scheme the scheme must, so far as practicable, be read so as to resolve the inconsistency. Where this is not possible "a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme". I was sufficiently persuaded by Mr Bowden's submissions in this case that the proposed use lends itself to an empirical analysis of the likely demand for car parking. I find the suggestion that the local policy should in someway rule out such a consideration stands in conflict with the State provisions. I therefore find I must give greater weight to the State provisions and have regard to the actual demand for car parking in this instance.
34. Mr Chow asserted that such an approach could fail to acknowledge that the parking generating characteristics may change in the future and that the more robust approach is to consider parking demands in a more generalised sense. In some instances there can be validity to this argument however I am persuaded that in this instance the difficulty foreshadowed by Mr Chow can be appropriately dealt with through a permit condition limiting any activity to those being proposed here and linking the use to the printing industry as a whole.
35. It was Mr Bowden's original submission that the maximum number of persons to be employed at the premises would be the three existing design personnel plus a printing press operator who would be drawn from New Litho's existing staff pool. Part of the purpose of the whole exercise being to improve comfort levels within the industry as a whole. With the abandonment of the printing press, the storage element would have no need for "on-site" personnel at all - store management being centred elsewhere within the print works complex. Mr Bowden confirmed also that with the closing of the existing driveway crossover to Croydon Street, an additional on-street car space could be accommodated. This, with the two to be provided across the rear of the site would mean that all of the likely parking demand could be met as a result of this redevelopment. Mr Bowden also observed, and my inspection confirmed, that the fleet cars provided to New Litho staff are small enough to in fact enable three vehicles to be parked across the rear of the building. I find in all of these circumstances that it is appropriate to reduce the on-site parking requirement under the Scheme from six to two spaces.
36. The other issue in contention in this application for review was that of a loading bay. Clause 52.07 of the Planning Scheme provides that no buildings or works may be constructed for the manufacture, servicing, storage or sale of goods or materials unless:
"* space is provided on the land for loading and unloading vehicles as specified in the table below (table provides that for a building of 2,600sq m or less a bay with minimum dimensions of 7.6m x 3.6m and an area of 27.4sq m must be provided)
* the driveway to the loading bay is at least 3.6m wide. ...
* the roads that provide access to the loading bay is at least 3.6m wide."
37. The clause goes on to provide that a permit may be granted to reduce or waive these requirements if either the land area is insufficient or adequate provision is made for loading and unloading vehicles to the satisfaction of the Responsible Authority.
38. In the further correspondence forwarded at the Tribunal's direction following the hearing, Mr Bowden confirmed that his client was prepared to set aside space within the building for a loading bay. This leaves the question of access to such a loading bay given that the area set aside for parking is to be located in front of the tilt-a-door/roller door entry to the rear of the premises. Mr Bowden submitted that:
"Loading and unloading arrangements associated with the new development would be consistent with the Company's existing operations ie. materials would be loaded - unloaded using a small tray truck and a fork lift or the fork lift will transfer material directly between the subject premises and the Company's other holdings. The movement of parked vehicles from the rear of the development will take place as outlined in our submissions to the Tribunal at the hearing ie. staff members would be required to move their vehicles to facilitate the loading/unloading."
39. Mr Bowden also confirmed that the present arrangement throughout the print works complex is for car spaces to be located in front of loading bay entries. All the more recent additions have obtained planning approvals that authorise such an arrangement. My inspection confirmed that this arrangement continues to operate with the car spaces being identified for use either in a general sense for New Litho staff but in some cases for specific staff vehicles.
40. In Mr Chow's submission the present situation is not an appropriate planning outcome and should not stand as a precedent for this or future applications. If I could have been provided with evidence of this approach having any negative impacts on other land users, I may have been persuaded to accept Mr Chow's submission. However, no such evidence was forthcoming. My inspection also confirmed that even if cars might need to be moved on a temporary basis, the widening of the lane outside the other parts of the complex enables the temporary parking of vehicles pending completion of loading. Given also the relative infrequency of loading or unloading I consider the dual use of the car space area as an access to the loading bay is not such as to provide a real disincentive to parking. In other words the car spaces seem to be actively used.
41. As already noted the objectives of the car parking policy at Clause 22.03 include avoiding parking and traffic difficulties and ensuring the fair and equitable treatment of all land owners and users. There was no evidence that the proposed development could result in any material parking or traffic difficulties. I agree with Mr Bowden also that it is relevant to have regard to the fact that no residents of Croydon Street have objected to this proposal. Indeed the expert opinion of the City Engineer's Department was to the effect that no traffic difficulties would result. This being the case, and given the fact that all of the remainder of the block between Sunbury Crescent and Croydon Street operates on the basis of combining car parking areas with access to loading bays, I find it is only fair and equitable for the subject land to be similarly laid out.
42. A final matter sought to be relied upon by Mr Bowden was the clear policy support within the local provisions of the Scheme - for example at Clause 21.08 of the Municipal Strategic Statement - for industrial activities, particularly those serving the local community, to continue to be accommodated within the municipality. It is noted for example that with the significant restructuring of the manufacturing sector in the last decade, there has been a "dramatic reduction or relocation of the number of manufacturing businesses". It is noted that "the effects of this trend, coupled with the high value of land within the city, has been a continued demand for the redevelopment of industrial land for other uses, particularly offices. It is important to continue to accommodate industrial activities that provide a service to our business community and residents."
43. One of the objectives of the MSS, when referring to the commercial sector is to retain industrial activity which will primarily serve a local need. A strategy for achieving this is stated to be: "Encourage industry that is of service to our business community and residents" and "promote cleaner and quieter types of commercial and industrial activities".
44. The office's report to Council in relation to this application confirmed that the proposed expansion of the New Litho print works was consistent with this policy.
45. In conclusion therefore, I find that while the arrangement proposed here for car parking and loading may not represent "world's best practice", the value of such an outcome needs to be balanced against other of the Scheme's desired outcomes. These include the fair and equitable treatment of all land owners and the value to the community of maintaining and fostering local industries which not only provide services to the community but provide local employment opportunities as well. I am persuaded that New Litho meets these local social and economic objectives. Accordingly, given the only very minor, if any detriment which this proposed expansion might incur, I find that a net community benefit would result from the grant of a permit and I will so order
Daley
Boroondara CC [2001] VCAT 1861
(1964) 110 CLR 529
Tribunal granted the permit sought by the applicant, affirming the Responsible Authority and directing issuance of a permit allowing industry (printing), a four-space reduction to required car parking and modification of loading bay provisions, subject to detailed conditions (ORDER).