1. modifications to the existing ground floor to accommodate four bicycle parking spaces in accordance with the plan 674B dated 12.09.11 marked drawing TP04 issue e and marked as Exhibit C7 at the said hearing before the Victorian Civil and Administrative Tribunal; 2. a metal panel system to be applied to the eastern external elevation to add visual interest to that facade;

1. the windows to bedroom 1 of unit 3 and bedroom 2 of unit 1 facing the light well to be treated so as to prevent mutual overlooking by being screened or obscured glass or otherwise to a height of 1.7 metres above floor level and openable, if at all, only above that level;

1. ventilation to be provided to the rubbish bin storage area by the inclusion of a high level domestic fence or vent to Palmerston Grove; and 2. any plant or equipment to be located above roof level. 2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. 3. No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans are permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

1. Disabled access to the building must be provided to the satisfaction of the Responsible Authority.
2. Expiry of permit if:
   1. the development is not started before 2 years from the date of issue; or
   2. the development is not completed before 4 years from the date of issue.

the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

1. The Responsible Authority is directed pursuant to Section 85 (1) (b) (ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Ms Tania Cincotta, solicitor, of the firm of Best Hooper solicitors appeared for the applicant company. She presented written and oral submissions and called two witnesses to give expert evidence. They were Catherine Heggen, town planner, and Charmaine Dunstan, traffic engineer. Both witnesses gave oral evidence in the course of which the adopted written reports.

Mr Terry Montebello, solicitor, of the firm of Maddocks solicitors appeared for the responsible authority. He presented written and oral submissions.

Application under section 79 of the Planning and Environment Act 1987 for review of the failure of the responsible authority to grant a permit within the prescribed time.

The addition of two storeys to an existing two storey office building to contain four dwellings with waiver of car parking requirement.

Permission under the Business 1 zone provisions in clause 34.01 of the planning scheme for the construction of buildings and works and permission under clause 52.06 for the waiver of car parking that would otherwise be required.

Lot 1 on Title Plan 366587G being the land and Certificate of Title Volume 3619 Folio 697.

Rectangle of land on the north east corner of Atherton Road with Palmerston Grove having a frontage of 9.62 metres to the north side of Atherton Road, a side abuttal of 39.6 metres to the east side of Palmerston Grove and an area of 282 m².

1. The responsible authority opposes the grant of a permit for a "shop top" type residential extension to accommodate four two- bedroom dwellings in two levels above an existing two level office.

1. The review site is located on the north east corner of the intersection of Atherton Road with Palmerston Grove in the main Oakleigh shopping centre and within the designated major activity centre.
2. The site is a modest one having a frontage of 9.62 metres to the north side of Atherton Road and a side abutment of 39.6 metres to the east side of Palmerston Grove. The area is 282 m².
3. I guess that the original development on this site would have been a shop. However, it has been redeveloped, in relatively recent times, with a new and modern two- storey office building. This is an attractive architect designed structure that makes a positive contribution to its locality.
4. The same architect has been employed to design a proposed extension to add two further storeys above the existing two. This new extension is proposed to accommodate four modest new dwellings, each to contain two bedrooms. The living quarters are intended to be on the third level (the new second floor), with bedrooms above.
5. Some of the current office space, approximately in the centre of the frontage to Palmerston Grove, would be sacrificed to provide access to the new residential quarters. There would be a lift and stairway, with entrance from Palmerston Grove, leading up to the second floor where the living quarters of the new residences would be located. Access to the sleeping quarters would be by stairway within the individual new dwellings.
6. Secluded open space would be provided by means of balconies at second floor level.
7. The existing two-storey office building is constructed to the building line in Atherton Road. The application plans envisage a setback at the new second and third floor levels of 1.49 metres from that building line.
8. As previously noted, the site is located within the main Oakleigh shopping centre and within the designated major activity centre of Oakleigh. This is an area that envisages more intense development with higher buildings and closer settlement (commercial and residential) than currently exists, and has previously existed in this Oakleigh centre.
9. Oakleigh was originally a separate town or village but it was enveloped by the expansion of metropolitan Melbourne shortly after the second World War. Something of the original style and scale of shops and buildings dating back to the earlier stage still survives. However, they survive amidst more recent substantial developments such as the roadway works located at the western end of the centre and more substantial modern buildings, including buildings of four and five storeys in height, that are features of more modern redevelopment.
10. Council planning envisages more redevelopment of what is referred to as medium to higher scale buildings in this centre. Monash means four to eight storeys in this locality. Nevertheless, there is also some aspiration of retaining something of the scale and feel of the one and two- story shops existing along Atherton Road. Elements of the past scale, and of the incoming redevelopment, are both to be perceived along Atherton Road.
11. It is common ground that this site is a suitable one for medium density development of the sort and scale proposed, subject to certain objections that the responsible authority has to this particular project. Planning policy documents not only envisage increased density in medium density accommodation in this locality, but also there are specific references to so called "shop top" dwellings, in this case office top.
12. It is common ground that the site is suitable, at least in those general terms, because of the nature of the Oakleigh centre. This is a substantial centre offering access to a wide range of retail, commercial and service facilities. There is also very good access to public transport in the shape of a suburban railway station within walking distance and bus services including so called "smart" bus services. One of these smart buses provides efficient and regular access to the very substantial Chadstone shopping centre by means of a journey of only about 10 minutes. Chadstone must be the largest shopping centre in Victoria outside the Central Business District of Melbourne. It offers a very wide range of services, comparative shopping, entertainment, eating opportunities and the like. Its easy access from the current review site enhances the site's attractiveness for medium density development.
13. There is also good access to other recreational facilities and to educational facilities, including the Monash University campuses at Clayton and Caulfield.

1. This proceeding is an application for a review under section 79 of the Planning and Environment Act 1987. It arises from the failure of the responsible authority to make a decision on the permit application within the prescribed time. However, the responsible authority, after the review application was made, determined that it is opposed to the grant of a permit. It did so on several grounds. It has not persisted in relation to all of those grounds. Mr Montebello, the solicitor who appeared on behalf of the responsible authority, indicated early in the hearing that some grounds would not be pursued and that the responsible authority maintained its opposition to the grant of a permit on only two grounds. These two grounds are
   1. that permission for the dwellings should not be granted in the absence of the provision of on-street car parking spaces and
   2. alterations should be required to the front setbacks from Atherton Street in relation to the proposed new second and third storeys.
2. The major issue is that in relation to the question of on-site car parking.

1. This case has been approached on the basis that the site cannot provide on-site car parking spaces in relation to the proposed new dwellings. I was informed, in the course of the hearing, that contributions have been made in the past in relation to car parking and the inability of the site to provide on-site parking. Such contributions were made in the form of cash payments. However, they were in relation to the office use of the land.
2. The present building occupies this site and it has been accepted that it is not feasible to provide on-street parking.
3. The expert traffic engineering evidence included the proposition that a basement car park is not realistic, having regard to the limited extent of the site. So far as ground level parking is concerned. It would be technically possible but practically undesirable. It would occupy a considerable amount of the ground floor office space, would necessitate vehicle entry from Palmerston Grove, would rather spoil that appearance of the existing attractive building, would yield very little parking and would eliminate nearly as much on-street curbside parking. In short, it is just not practical.
4. The actual issue is whether permission for the dwellings should be granted on the basis that no on-site car parking can be provided. Notwithstanding the strong policy support for just such a development to contain just such dwellings in just such a location, the responsible authority is taking the view that the whole opportunity should be foregone because of the inability to provide car parking.
5. It was said, on behalf of the responsible authority, that some reduction could be countenanced. It was not maintained that there need be a space for each dwelling, but the responsible authority declines to approve there being no car parking spaces in respect of any of them.
6. It was said, again on behalf of the responsible authority, that there is no planning policy support for approval without any car parking. It is, perhaps, not surprising that there is no specific policy encouragement for such a negative proposition. Nevertheless, I have not found that approach to be particularly helpful, or particularly relevant.
7. Clause 52.06 lays down standard requirements for various land uses, including residential land uses. The ResCode provisions in relation to multiple dwellings (as a guide) would indicate one space per two-bedroom unit.
8. The effect of clause 52.06 is that the standard requirement is in fact required, in the absence of justification for a reduction or waiver. Nevertheless, the clause does provide that planning permission can be granted for a reduction or waiver of the standard requirement. It is obvious enough that reduction implies less than the standard. Waiver, on the other hand, means that there would be no provision made at all.
9. The planning scheme thus contemplates that there are, or at least may be, situations where it is appropriate, in accordance with good planning, to waive the otherwise standard parking requirement. The question therefore becomes, is this such a case?
10. Clause 52.03 provides some guidance in this respect. Clause 53.06-1 sets out some decision guidelines. Any reduction or waiver must be justified in terms of them.
11. It is hardly surprising to find that only some of them are relevant to the present case. That is commonly true in relation to such assessments. Some that are not met or are not relevant were referred to on behalf of the responsible authority. They should be regarded as beside the point, rather than considerations against granting the waiver that is being sought. It is in relation to the guidelines that have application and are relevant that the assessment, one way or another, must be made.
12. The first consideration is "Any relevant parking precinct plan". The responsible authority does have a parking precinct plan that is relevant to this locality. However, it relates only to commercial and retail uses and land uses of that sort. It is to provide parking in relation to such uses. In fact, it has a site more or less immediately behind this review site. That site is currently used for ground level car parking. The Council proposes to construct a three-level car park there. Part of the financing of the plan will be by a levy applied to such commercial uses where they cannot provide the required parking. However, this scheme does not include residential uses. It may be possible for the responsible authority to institute a scheme for residential uses, particularly as there is such strong policy support for increasing such uses, including shop top housing, in this locality; but, to date, it has not done so. Also, its present scheme does not include provision of parking association with dwellings or contributions from residential developments. That is its view of its present scheme.
13. It was anticipated that, in the course of this hearing, there would be legal argument as to whether the actual scheme does or could extend to residential uses. It was anticipated that the permit applicant would contend that it could provide its required parking by making a cash payment in lieu of actual parking towards the scheme. However, that issue was not pursued. The case was ultimately conducted on the basis of waiver rather than an alternative of payment in lieu of parking.
14. I note also that there is a local schedule to clause 52.06 of the Monash planning scheme that makes provision, including reductions of car parking requirement, in relation to two activity centres. One is the Glen Waverley Principal Activity Centre and the other is this Oakleigh Major Activity Centre. However, those provisions which deal with Parking Precinct Plans relate to commercial rather than residential uses.
15. The list of guidelines in clause 52.06-1 read as follows
    • Any relevant parking precinct plans.
    • 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 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.
16. Some of these are relevant in as much as they should be borne in mind, even if they do not provide anything or much in the way of support for the waiver being sought. However, the availability of very good public transport in the locality is highly relevant. The nature of the locality and the nature of the proposed housing is also highly relevant. If nothing else, this comes under the last consideration of any other relevant considerations. Traffic management and pedestrian amenity need only be borne in mind. I do not regard parking credit or deficiency to be relevant in this case. Although it may be arguable as to whether there is some lack of coincidence of peaks for residential parking, as compared with business and commercial parking, I do not rely on the multiple use consideration.
17. Car parking in the locality is, generally speaking, inconvenient in so far as the proposed use would be concerned, and is not a relevant factor at all, or only a very minor, marginal one that is not sufficient to warrant waiver.
18. There has been, over something like four years, a Victoria wide review of parking with a view to revising planning scheme provisions and requirements. That matter has been in abeyance, but is subject to a recent revival. At this stage, it is no more than a matter undergoing some consideration. Mr Montebello, on behalf of the responsible authority, urges that it should not be regarded as a seriously entertained planning proposal and its tentative propositions in it should, accordingly, not be given any weight. This includes possible notions of not requiring on-site parking in relation to residential developments in major activity centres like this one. I do not give that consideration any weight on account of that review.
19. Mr Montebello also sought to lay considerable emphasis on the question of empirical assessment parking demand. He complained that he thought that Ms Dunstan's firm would have empirical evidence in relation to proposals like this one, or relevant to this one, which was not advanced in her evidence. He complained of the lack of this evidence, whether from previous research, or in relation to the current proposal.
20. I regard it as notorious ( not nefarious, but common knowledge) that some households, typically small households of one or two people, do not have and do not require motor cars or motor car parking spaces. They may not be a majority, but they are nevertheless significant in numbers. Some statistics were produced indicating that, over a considerable precinct in this locality, the percentage of such households is 17%. The area concerned includes a majority area that might be regarded as normal residential hinterland where cars in this sort of post-war suburb are more necessary and where the incidence of no vehicle households can be reasonably taken to be considerably less than in a locality like this immediate one where this review site is in the midst of a major activity centre. I accept that there is, in fact, a demand for dwellings of this sort, particularly in localities like this one, where the person or persons constituting the household do not require and do not want the additional expense of having a car parking space. This demand is not limited to environmentally conscious people or young adults or students, although it may be more marked amongst such people. A locality like this one is particularly suitable for small no car households because it is surrounded with services and shopping opportunities, has excellent public transport and has good communications, beyond the major activity centre, with Chadstone and educational facilities. Such people frequently prefer to walk, use bicycles and/or rely on public transport. Car share schemes, including commercial ones like Flexicar, GoGet and GreenShareCar arrangements (quite apart from commercial hire car and taxis) are becoming more common to provide availability of some car transport for non car households.
21. The dwellings here proposed, in the absence of their own private car parking space, would obviously be very suitable for such households, but would also be very inconvenient and unsuitable for people needing or wanting to own a motor car. For car owners there would be the problem of what to do with the car when it is not away from the dwelling and not in use. The needs for parking of a residence are not the same as in relation to commercial users or customers of commercial uses. The latter are concentrated during business hours whereas residential users (including their visitors) are more likely out of hours.
22. It is always possible for somebody with a car to take such an apartment, or for someone in such an apartment to acquire a car. However, apart from inconvenience to others, inconvenience to the car owner is likely to significantly discourage occupation of dwellings like these by car owners, and to significantly encourage relocation by those who might acquire a car. I am not aware of any convenient legal means of banning potential future occupiers of these dwellings from owning cars.
23. A waiver in this case does not imply that waivers should be given 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.
24. This conclusion is reached for the above reasons, and not because of a possible policy of not requiring parking for residential uses in activity centres. I note that this is a major activity centre, but this land is in the Business 1 zone. The responsible authority, as planning authority, could consider the possibility of re-zoning to an activity centre zone, but I am informed that the Council has no such plans for the foreseeable future.
25. It was submitted that it would be a new departure for the tribunal to grant permission for residential development with waiver of car parking. However, Ms Cincotta, the solicitor who appeared on behalf of the applicant company, produced a considerable array of cases where the tribunal, constituted by an array of different members, has waived car parking (rather than reduced it) in accordance with Clause 52.06. Although some of these cases did not relate to residential proposals, many of them did. I take it that they were referred to for the purposes of comparison and illustration. Each case must necessarily have been determined on its own facts, as this one must be determined. Although I paid attention to the submissions on behalf of the applicant company, and indeed on behalf of the responsible authority, that related to previous decisions of the tribunal in relation to reduction and waiver of parking, I do not think that it is necessary, or particularly useful, to embark upon a detailed analysis of those cases. As I have said, this one is determined on its own facts, and on the basis of reasons already given.

1. The present two-storey building has a zero setback from the building line in Atherton Road. That is true for the first floor, as well as the ground floor.
2. The proposal is that the new second and third floors should be set back by a modest 1.49 metres.
3. It was argued, on behalf of the responsible authority, that a different scheme of setbacks from Atherton Road should be adopted. It was recommended that the second floor (third level) should also extend forward, like the ground and first floors, to the building line whilst the setback at the upper, third floor (fourth level) should be at 6 metres, or possibly 5 metres, in accordance with an Oakleigh Major Activities Centre Structure Plan dated 28 June 2011. This document is at an early stage in its evolution. Although its information and advice can be considered on its own merits, it can hardly attract the weight that would be attributed to a document incorporated in the planning scheme, or even to a seriously entertained planning proposal.
4. Mr Montebello pointed out that it contains a suggestion of zero lot line up to and including a third level but then includes a formula that would set back the upper storey here by 6 metres. However, the document also contains a diagram indicating a setback of 5 metres.
5. One way or the other, he advocates (on behalf of the responsible authority) an adoption of that formula for this proposal.
6. As I understand it, the thinking behind this formulation is that, although 4-8 storeys are regarded as appropriate here, an attempt should be made at the Atherton Road frontages to contain heights in deference to modest heights of existing one and two storey shops and similar buildings fronting the road.
7. I understand this proposition and can see some point in it. Nevertheless, this is not a so called "make or break" issue in relation to this case. The applicant prefers its current proposal, but if I were to disapprove that approach, and adopt that urged by the responsible authority, the applicant and its architect could accommodate that result. In fact, a plan showing how this could be achieved was produced on the second day of the hearing.
8. This plan involved putting the living accommodation on the upper (4th) level with the bedrooms etc on the lower (3rd) level. Suitable access could still be obtained from the lift reaching the second floor, and, in some ways, the proposal would be enhanced from a living point of view. A larger balcony could be achieved at a higher elevation and may well be more attractive.
9. There is, however, a downside. As presently designed these dwellings would not be suitable for a person who could not use stairs. Nevertheless, on the present design a visitor with such a disability can come up the lift and obtain convenient access to the living areas of the dwelling. A visitor has little occasion to be needing to go upstairs to the bedrooms. The revised version, although according with the preference expressed on behalf of the responsible authority, would have the disadvantage that disabled visitors could not reach the living areas without going up the stairs.
10. I have said that this is not a "make or break" issue because either version is acceptable. If I favour the view of the responsible authority I could impose conditions simply requiring the revised version to be adopted. The conclusion I have come to is that there is little to choose between the two versions, and no compelling reason why one must be preferred to the other. In the absence of a significant reason to change, there is little reason not to approve the actual proposal, and I consider the advantage in accessibility to be sufficient in these circumstances, to decide me in favour for the original proposal.

1. The responsible authority, in determining not to support the proposal, adopted the following grounds
   1. The proposal is an overdevelopment of the site.
   2. The proposed development is out of character with the existing development in the area in particular with regard to mass, bulk and scale.
   3. The development provides for a poor level of internal amenity for future residents.
   4. Council is not satisfied that a waiver of the required car spaces is justified having regard to the decision guidelines of Clause 52.06-1 of the Monash Planning Scheme.
   5. Council is not enabled under the Schedule to Clause 52.06-2 of the Monash Planning Scheme to accept a cash contribution for car spaces required, but not provided on the land, for "dwelling/s".
2. Of these grounds the responsible authority, at the commencement of the hearing, abandoned the third. For reasons given above I have determined not to uphold the fourth, but to grant a permit in spite of it. That conclusion renders the fifth to be irrelevant, and in any event, it was not pressed on either side in this case. The first two grounds were not pursued on behalf of the responsible authority, except in relation to the question of setbacks from Atherton Road.
3. Accordingly a permit will be granted subject to conditions.

1. The question of conditions was discussed in the course of the hearing on the basis of draft conditions provided on a "without prejudice" basis by the responsible authority. The permit conditions I have devised are based on the draft but modified in accordance with the discussion conducted in the course of the hearing and my view of the best form and presentation of such conditions.