It is the order of the Tribunal that the decision of the Responsible Authority in permit application No P06/0194 is set aside.

A permit is granted and directed to be issued pursuant to Section 85(1) (b) of the Planning and Environment Act 1987 for the land at 5 Napier Street, Rye.

Construction of alterations and additions to the existing building for the purpose of a restaurant (maximum seating capacity 260 seats) and associated works together with an on - premises liquor licence, creation of carriageway easement and car parking dispensation in accordance with the endorsed plans.

1. Prior to the commencement of buildings and works, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but be amended to show:
   • (a) A seating plan for the restaurant, with the maximum number of seats within the restaurant (including the terrace areas) to not exceed more than 260.
   • (b) The maximum overall building height of the building which must not exceed 7.5 metres above natural ground level at the highest point.
   • (c) The area to be liquor licensed to be indicated with a red line.
   • (d) Loading, access and parking at the rear as proposed in the Ratio Evidence Report Dated May 2007.
   • (e) Provision of appropriate bicycle storage onsite.

1. The approved use and development, layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

1. No more than 200 patrons may be present in the restaurant at any one time during the hours of 10:00am and 6:00pm; and no more than 260 patrons may be present in the restaurant at any one time during the hours of 6:00pm and 12 midnight.
2. The approved restaurant use may only operate between the following hours:
   • Monday to Sunday: 10:00am to 12:00 midnight (on the same day)
3. The amenity of the area must not be detrimentally affected by the use or development, through the:
   • (a) Transport or materials, goods or commodities to or from the land.
   • (b) Appearance of any buildings, works or materials.
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
   • (d) Presence of vermin.

1. Sound levels emanating from the land must not exceed those required to be met under State Environment Protection Policies Nos. N-1 (Control of noise from Commerce, Industry and Trade), and N-2 (Control of Music Noise from Public Premises).
2. External amplified public address or speaker systems must not be installed on the premises unless with the further written consent of the Responsible Authority.
3. All lamps used to illuminate the exterior of the buildings and works must be fitted with cut-off luminaries so as to prevent the emission of direct light onto adjoining roadways and land and no external night lighting must be fitted that results in any adverse visual prominence of the site, all to the satisfaction of the Responsible Authority.

1. Before the buildings and works are occupied, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority, be:
   • (a) Constructed.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced with an all-weather seal coat.
   • (d) Drained and maintained.
   • (e) Line-marked to indicate each car space and all access lanes.

Parking areas and access lanes must be kept available for these purposes at all times, and drainage maintained all the satisfaction of the Responsible Authority.

1. The loading and loading of goods from vehicles must only be carried out on the land or within a designated loading bay, unless with the further consent of the Responsible Authority.

1. Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles to the satisfaction of the Responsible Authority.
2. All bins and receptacles used for the collection and storage of garbage, bottles and other solid wastes must be kept in an area screened from view to the satisfaction of the Responsible Authority.
3. All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour to the satisfaction of the Responsible Authority.

1. This permit will expire if any of the following applies:
   • (a) The development is not commenced within two years of the date of this permit;
   • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

Mr David Crowder, Town Planner of Ratio Consultants Pty Ltd. He called written and oral evidence from Mr Fairlie, Traffic Engineer of Ratio Consultants Pty Ltd.

1. At the conclusion of the hearing I gave an oral decision to grant a permit and this summary contains the reasons for that decision.

1. Dantes Restaurant opposes Council's decision to refuse a permit to extend the ground floor and add a first floor to an existing single storey shop building in Napier Street and to use it for a 260 seat licensed restaurant.
2. The Rye commercial area is primarily a narrow strip along the south side of Point Nepean Road and for the most part extends in depth one street block to Nelson Street. A series of streets at right angles to Point Nepean Road provide access to properties away from Point Nepean Road. Napier Street is one such street although it has been closed to traffic where it intersects with Point Nepean Road. It contains a mixture of commercial businesses including shops and a two storey motel opposite the review site and is located very close to the foreshore and public facilities within the foreshore reserve. Public off-street car parks abut the review site to the north and east and there is kerb side and island parking within Napier Street.

1. The site and surrounding land is zoned Business 1.[1] A Vegetation Protection Overlay (Schedule 1) applies but a permit requirement is not triggered in this case as there is no vegetation on the site. A number of state and local planning policies are relevant for my consideration[2].
2. Documents submitted at the hearing have been retained on the Tribunal file.

1. The key issue in this case is the inability to provide more than 3 on-site car spaces for the proposed restaurant. Council considers that the inability to provide additional parking or in some way contribute to parking within Rye is unacceptable, and fatal to the proposal to use the site for a 260 seat licensed restaurant. Mr Fairlie was called to give evidence about parking and traffic issues. It was his evidence that the restaurant would generate an average demand of 0.3 spaces per seat to give a total demand of 78 spaces for the 260 seat restaurant. Three spaces are to be provided on-site leaving a shortfall of 75 spaces at times the restaurant is fully occupied.
2. I note that Council has no issues with the buildings and works required to extend the existing single storey shop building or in allowing the restaurant to have a liquor licence. Both Mr Nichol and Mr Crowder included in their written submissions detailed information about planning policy and the relevance of such policy to the present application for review.
3. Although there was considerable debate about the validity of the surveys undertaken by Mr Fairlie (the areas included in the survey and the times of the year the surveys were undertaken) to my mind this really misses the point of the underlying philosophy and approach to the provision of parking in centres such as Rye. Car parking surveys were undertaken in September 2006 and again on the Monday of the long weekend in March 2007. Council was extremely critical that surveys were not undertaken during the peak December/January holiday period. While I agree that undertaking such surveys would have provided additional data about car parking rates, I am not convinced of its practical use. Having visited the Peninsula over many decades during peak and off peak periods, I would be very surprised if on various peak days parking was not entirely saturated. But that is likely to be the case anywhere in our major coastal settlements in peak periods. I cannot think of any municipalities (whether seaside or not) that seek to fully cater for car parking demand in peak periods. To do so would be a waste of land and financial resources and would result, for example, in a centre such as Rye being surrounded by a sea of vacant car parks except for those relatively short periods when parking demand reaches or exceeds available capacity.
4. Mr Nichol and Mr Crowder also referred to previous Tribunal cases dealing with parking within activity centres, including one of my decisions at Rosebud.[3] In the absence of municipalities having in place some strategic support for the provision of parking within activity centres, the Tribunal has taken a consistent view that development on individual sites must not be constrained by an inability for individual sites to provide sufficient on-site parking. This was the view I took in Alesci:
   1. In broad principle, I accept the evidence of Mr Symons that it is unreasonable to require each individual building in a shopping centre to provide sufficient parking for its own needs and that it is now well established that the majority of parking in centres should be provided in larger centralised parking areas. I was referred to a decision by Member Liston where this position was restated in a concise manner. I have also considered this issue in relation to the redevelopment of a small site in the High Street strip shopping centre in Armadale. In that decision I noted that:

The inability to provide adequate on-site car parking on small, generally narrow commercial sites in strip shopping centres is a problem across Melbourne and other intensively developed centres in non-metropolitan Victoria. The difficulty is not unique and nor are the solutions unexplored. Municipalities have attempted over many years and through a variety of schemes and processes to provide centralised car parking for strip shopping centres. Actions taken for High Street by Stonnington City Council (and its predecessors) are consistent with this philosophy and a number of Council public car parks exist in and around the whole length of the High Street shopping strip. Other divisions of the Tribunal have discussed this issue at some length and I was referred by Mr Naughton to several of these including a decision by Member Liston in Hubbard & Ors v Boroondara CC (1996/46940 7 Ors). Member Liston quoted various decisions relating to the issue of 'the centre based approach' to car parking. He commented that:

At the level of the individual site where there is a change of use or an extension to an existing building in most circumstances car parking shortfalls should be waived if it is consistent with the strategic plan for the centre, firstly because the most equitable solution is to deal with car parking on a centre wide basis, and secondly because even in saturated car parking conditions a balance will occur between the level of activity and the car parking supply.

I consider it quite reasonable to suggest a third reason, and that is the physical impracticality of requiring individual sites to provide anything approaching the required number of car parks on site. Many sites in strip centres are so small that if required car parking were to be provided entirely or substantially on site then the majority of a site would be devoted to car parking with little space remaining for retail activities. Past provision of public off-street car parks demonstrates that municipalities recognised both the impracticality and undesirability of such an outcome and of the common sense in coordinating the provision of required parking spaces.

1. Although the development site at Rosebud is much larger than the one at Armadale, the same principles apply. Successive Councils have recognised the sense in this approach by providing public car parks in Rosebud and then seeking cash-in-lieu for spaces not able to be provided on an individual site. The mechanism of seeking cash-in-lieu as a condition of planning approval is no longer an option (although I note that draft conditions provided by Council did include such a condition) and Council now has the ability to prepare a Development Contributions Plan and Overlay to collect funds for necessary infrastructure such as public car parking. I do not accept Council's submission that the applicant should either purchase land nearby for parking or contribute cash-in-lieu. If Council is concerned about the amount of public parking in Rosebud and wants landowners to contribute towards such parking (and that seems an entirely reasonable proposition) then it should prepare and have gazetted a Development Contributions Plan based on a strategic assessment of the need and most desirable location for such parking. In the meantime it seems inequitable and unreasonable to prevent re-development of relatively small sites such as the ones before me in Point Nepean Road.
2. I acknowledge the concerns of existing landowners such as Mr Jennings and MCS who have in one way or another already contributed to parking in the centre. In the case of Mr Jennings he has already contributed funds for off-street parking to serve his properties and is concerned that others are being treated differently and are benefiting at his and other landowners expense. I consider this a quite justifiable concern. However the difficulty lies in the fact that Council has chosen not to put in place the appropriate mechanism under the VPP based planning system to deal with this issue of the equitable and transparent collection of funds for additional centralised car parking in Rosebud. It can no longer rely on cash-in-lieu schemes to generate funds for such works.
3. Despite Mr Nichol suggesting that the circumstances at Rye are different to Rosebud because of the close proximity of the foreshore and the overflow demand from foreshore users into the business area at Rye, to my mind the fundamental philosophy remains the same.
4. In Alesci I made reference to parking contributions already made by other landowners; such comments are equally relevant at Rye. Although I empathise with the views of other business owners in Rye who have in the past contributed to the provision of parking, in centres such as Rye and Rosebud it is completely impractical within streets containing small commercial premises to require individual sites to provide anything like adequate parking. As I noted in Alesci, this has been well understood by municipalities across the State, and it is evident that the former Shire of Flinders must have had that foresight to provide some of the public car parks that now exist at Rye. While it is true that one of the mechanisms used by municipalities to collect funds in the past (cash-in-lieu) is no longer available, as I have noted before, other ways to collect funds do exist.
5. The same sorts of funding issues arise whenever there is a need to provide upgraded infrastructure. In a recent decision at Hastings[4] I made the following comments about funding which are equally relevant in this case:
   1. Having accepted Mr Wood's evidence about the condition of Lyall Street and the desirability of undertaking upgrading works, the fundamental issue then is: how are the works to be funded? In essence there are a limited number of ways that works can be funded - through Council's general works program, by requiring individual land owners to contribute at the time permits are granted for new development, by a separate rate scheme levied against all landowners or by introducing a Development Contributions Plan Overlay.
   2. Of these options, the one I favour least is the one adopted by Council in this case. In my view it results in a very ad hoc and inequitable provision of essential infrastructure based on who happens to first seek planning permit approval. ...
6. In the current case at Rye, Council has not tried to include permit conditions requiring the provision of parking, although there was a suggestion that Council would have looked more favourably at the application (perhaps with fewer seats) if the permit applicant had 'voluntarily' offered to seal the adjoining public carpark or made some attempt to make up the shortfall in another way.
7. On balance I am satisfied that allowing this 260 seat restaurant within the Rye activity centre is appropriate. To refuse the application purely on car parking grounds would in its own small way undermine the vitality and attractiveness of the centre. While I fully understand Council's concerns about the supply of car parking at Rye, I can only again encourage Council to move rapidly to put in place one of the tools available to it so that landowners contribute to additional centre-wide car parking on an equitable and transparent basis.
8. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing. I have deleted the 'note' as this can be included as an attachment or covering letter to the permit.

1. Having regard to the above I will therefore set aside Council's decision and direct that a permit issue subject to conditions.

[1] The Business 1Zone provisions are at Clause 34.01. The use of the land for a restaurant does not require a permit. Buildings and works require a permit. A permit is also required to sell or consume liquor and to waive the provision of car parking.

[2] Relevant provisions include Clauses 11, 12, 14, 17.01, 17.02, 18.02, 19.03, 21 (various), 22.02, 22.13, 52.05, 52.06, 52.07, 52.27, 52.34 and 65.

[3] Alesci v Mornington Peninsula SC [2002] VCAT 1124 (27 September 2002)

[4] McGregor v Mornington Peninsula SC [2007] VCAT 715 (4 May 2007)