Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit. Centre-based approach to car parking issues in activity centres. Adverting signs.

Great Oaks Pty Ltd v Greater Dandenong CC (Includes Summary) (Red Dot) [2015] VCAT 1673

1. The decision of the Responsible Authority is set aside.
2. In permit application number a permit is granted and directed to be issued for the land at address. The permit allows a reduction in the required car parking for a proposed medical centre and the display of an internally illuminated business identification sign in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

The proposal involves an internal rearrangement of part of the existing aged care facility to provide for a new medical centre for three medical practitioners and a small pharmacy/dispensary.

Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit.

The subject land is a large substantially regular lot located on the south west periphery of the noble Park activity centre, a major activity centre. The land contains a 160 bed, aged care facility known as Noble Manor. The land has an area of 14,575 m².

1. This is an application to review the decision of the responsible authority to refuse permission for a reduction in the standard car parking requirement associated with a medical centre and display of a replacement business identification sign at 15-35 Frank Street, Noble Park. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   1. The proposal is inconsistent with State Planning Policies. In particular, the proposal fails to comply with Clause 18.02-5 of the Greater Dandenong Planning Scheme in relation to ensuring adequate supply of car parking (appropriately designed and located), protecting the function of nearby roads, achieving a high standard of urban design, and protecting the amenity of the locality, including pedestrians.
   2. The proposal is inconsistent with Local Planning Policies, particularly in relation to Clauses 21.07-2 and 21.07-4 of the Greater Dandenong Planning Scheme which encourages the protection of amenity for residential and other sensitive uses from adverse impacts of vehicular traffic.
   3. The proposal fails to comply with Clause 52.06 of the Greater Dandenong Planning Scheme in that it does not provide any additional car parking on the subject site which will adversely affect the amenity of the locality.
   4. The proposal is contrary to the purpose of Clause 52.06 and the decision guidelines per Clause 52.06-6 of the Greater Dandenong Planning Scheme, particularly, the availability of alternative parking in the locality of the land, and the amenity and character of nearby residential areas.
   5. The proposed signage (height, illumination levels, visual clutter, and scale) fails to respect the amenity of surrounding residential land uses, and the existing character of the streetscape, and is non-compliant with Clauses 22.11-3.6 and 52.05 of the Greater Dandenong Planning Scheme.
   6. The proposal is inconsistent with Clause 22.08 of the Greater Dandenong Planning Scheme as the proposal fails to ensure the amenity impacts on nearby housing is minimised.
2. For the reasons set out below my conclusions in relation to the merits of the application are:
   1. It is unlikely that the small increase in demand for on street car parking associated with this proposal will have any discernible impact on the amenity of residents.
   2. There is ample of car parking available on street to accommodate any remaining car parking demand over and above that which could be accommodated on site.
   3. Even if there was a significant shortfall in the number of car spaces required that could not be accommodated on site, there is a very strong argument that the preferable decision would be to grant a permit notwithstanding the shortfall in car parking.
   4. It is not unreasonable for an Aged Persons Facility on a very large site to be identified by a moderately large advertising sign.
   5. It is reasonable that the overall height of the sign has some relationship to the scale of the existing building on the land.
3. I also expressed the opinion that even when car parking is the sole permit trigger the decision maker should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations as required by Clause 10.04 of the planning scheme. In regard to this I referenced a number of decisions of the Tribunal from the 1990s that led to the evolution of the centre-based approach to car parking issues in activity centres. Early decisions advocating an integrated approach.
4. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

1. The subject land is a large substantially regular lot located within the Noble Park Activity Centre, a major activity centre. The land is affected by the Residential Growth Zone and abuts the commercial core of the activity centre. The land contains a 160 bed, aged care facility known as Noble Manor. The land has an area of 14,575 m².
2. The land has on-site car parking for 54 car spaces in two car parks both accessed from Frank Street. The land has a frontage to three streets, Frank Street, Noble Street and Buckley Street. Thirty-seven car spaces can be accommodated on street within the frontages of the land.
3. To the west and south of the subject land is the substantial residential hinterland surrounding the activity centre that falls within the Residential Growth Zone. The cadastral plan in figure 1 indicates that within the immediate environs of the subject land, the surrounding residential area has been substantially redeveloped with conventional suburban forms of medium density housing.
4. There are a number of car parks within the activity centre some of which are public car parks managed by the Council. One of these car sparks is a small car park to the north of the subject land accessed from Buckley Street.
5. Public transport within the activity centre comprises the railway and two bus routes.

Figure 3 - Extract of Activity Centre Plan from Clause 22.08

1. It is proposed to establish a medical centre within the existing aged care facility and replace an existing sign located between the entrances to the larger of the existing car parks with a new internally illuminated sign.
2. An internal rearrangement within the existing building will provide for a new medical centre for three medical practitioners and an ancillary, small pharmacy/dispensary. In addition to the space set aside for the dispensary, there will be five consulting/treatment rooms. The reception function will be shared with the aged care facility.
3. The proposed advertising sign is an internally illuminated sign 4 m high and 1.5 m wide. The bottom 25% of the sign structure is a non-illuminated plinth.

Location of internally illuminated sign indicated on the plan,

General location of proposed medical centre within the building marked with a red star

1. The two issues in dispute in this application are the adequacy of the proposed car parking provision and the size of the proposed new internally illuminated advertising sign.

1. Mr Haldane, Council's, Senior Engineer - Transport:
   1. Assessed the car parking demand of the proposed use on the assumption that there would be up to 5 health service providers on the premises at any one time.
   2. Calculated that clause 52.06 would require the provision of 17 car spaces.
   3. Estimated that of these 17 car spaces, seven would be for staff car parking and the balance for patient car parking.
   4. Considered that the staff car parking component could be reduced by one to requirement for six car spaces on the basis that there would be some sharing of administrative staff between the medical centre and the existing aged care facility.
   5. Considered it reasonable to waive the car parking requirement in respect of patient car parking, having regard to the quantity of publicly available car parking in the area managed by Council for the purpose of short-term car parking.
   6. Did not assess or have regard to the actual car parking required by the aged care facility under the provisions of clause 52.06.

Mr Haldane concluded that in relation to long term (staff) car parking the considerations for a reduction or waiver under clause 52.06 did not support a reduction in the required car parking, and that any increase in car parking demand would adversely affect the amenity of the residential area.

1. Ms Dunstan undertook both a statutory and empirical car parking demand assessment. The statutory calculation is set out in figure 3 below.
2. In her empirical assessment Ms Dunstan was of the opinion that car parking demand in respect of patient car parking would be very much less than that anticipated within the clause 52.06 requirement. A primary reason for this was of the close synergistic relationship between the proposed medical centre and the 160 residents and the staff of the aged care facility. Moreover, the proximity of the medical centre to the activity centre and its location within a residential area with a higher than average density, makes it likely that the centre will draw its patients from this close to hand community of employee's and residents who will not need to drive to the centre.
3. Ms Dunstan also undertook surveys which demonstrated that there was ample of car parking available on street to accommodate any remaining car parking demand over and above that which could be accommodated on site. Including, a minimum of 24 car spaces available at all surveyed times on the frontages of this large site to the perimeter streets.

Figure 3 - Table 3 from Ms Dunstan's Witness Statement

1. There is a moderately high level of car parking demand within and around the activity centre[1]. However, car parking within the peripheral streets is largely unrestricted suggesting that car parking demand within and near the activity centre is not particularly high by metropolitan standards.
2. It is unlikely that the small increase in demand for on street car parking conceivably associated with this proposal will have any discernible impact on the amenity of residents. This small change in on-street car parking demand is likely to occur in Frank Street, it is interesting to note that all of Frank Street north of Noble Street is within the boundary of the activity centre. In the context of streets within the environs of an activity centre the parking demand associated with this use certainly will not result in a loss of amenity which would outweigh other more strategic planning considerations sufficient to warrant refusal of permit.
3. It is apparent that this application should not be refused on the basis of car parking, even on the most basic car parking assessment. Even an assessment that does not have any regard to any other considerations and the duty to make a balanced decision having regard to the entire planning policy framework.

1. However I remain concerned that Council's approach to the decision in this case was misguided and ignored the requirement for balanced decision making:

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.[2]

Even if Mr Haldane was correct and there was a significant shortfall in the number of car spaces required that could not be accommodated on site, there is a very strong argument that the preferable decision would be to grant a permit notwithstanding the shortfall in car parking.

1. The very direct social and economic benefit which what flow to the residents of the aged care facility, and the more general social and economic benefits which would flow to the activity centre and nearby residents easily outweighs the car parking consideration in this case .
2. Considering the submissions I was reminded of the type of debates that would come before the Tribunal prior to a long run of Tribunal decisions in the 1990s which established what became known as the centre-based approach to car parking issues in activity centres. This was the period in which previously moribund strip shopping centres were being revitalised by the emergence of Melbourne's Cafe Culture. However, as in all revolutions, conflicts were emerging and existing social structures were slow to adapt, including the planning system.
3. In one of the very earliest of this series of cases, Modelstars v Fitzroy CC [1991] VICCAT 5[3], I observed that the car parking provisions of the planning scheme were emerging as being the sole determinative of whether or not permits should be granted for new uses within activity centres. I was of the opinion that:

Car parking controls are chosen because, as O'Brien demonstrates, they exert a powerful economic control over land use, they appear to address the existing problem of car parking supply, and are easier to justify in a quasi- scientific sense than more arbitrary controls over development levels or land use mixes.

Car parking requirements considerably distort the relative economic cost or viability of land uses in a way which is unlikely to lead to a desirable planning outcome. The range and variety of uses is seriously limited.

It is generally undesirable to allow the secondary issue of car parking to dictate primary land use decisions. It would be preferable that decisions were made on the basis of an overall strategy, which was developed having regard to car parking issues, but where car parking is not necessarily determinative in the case of individual land use decisions.

1. Other decisions from this period addressing this topic in detail included:

Modern Design Group and Port Phillip C.C. (1994/47252);

Tong Ly & Ors v Yarra C.C. & Ors 4 A.A.T.R. 364,

Genamoo Pty Ltd v Port Phillip C.C. (1995) 15 A.A.T.R. 248, and

Hubbard & ors v Boroondara CC [1997] VICCAT 199.

1. In the Hubbard decision, six years after the Modelstars decision, I attempted to summarise what had become known as the centre based approach to car parking in activity centres:

The basic approach in these decisions is that in important activity centres car parking considerations should not be determinative, instead the land use mix in a centre should arise from a combination of strategic planning and the economic forces at work in the centre, car parking issues have a part in this but should not dominate. 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.

Looking back at this summary I think could be said that it risks inviting decision-making which edges towards relying on a single consideration rather than a more balanced approach, because it justifies a centre based approach through the prism of a car parking analysis without reference to the vital social and economic benefits which arise from an activity centre which makes a lively contribution to community life, and which is the underlying reason why the centre based approach emerged.

1. The Council submits that the proposed sign is too large, and in particular to tall, for land-use within a residential street, and that it will be unduly intrusive viewed within the streetscape.
2. The subject land is a very large site accommodating large residential building used for the accommodation of the elderly. The land has a frontage to Frank Street of approximately 160 m. It is not unreasonable for such a use on such a site to be identified by a moderately large advertising sign, even if the use was not within an activity centre as is the case with this application.
3. However, it is reasonable that the overall height of the sign has some relationship to the scale of the existing building on the land. The plans provide dimensions for the existing building. Therefore, I propose to include a condition providing that the sign be no higher than the peak of the closest decorative gable on the Frank Street facade of the existing building.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.
3. I have deleted a number of the proposed conditions on the basis of a lack of nexus between the purpose of the controls and the proposed conditions. I have deleted a condition seeking to require the illumination of the sign to be switched off for a substantial part of the night, on the basis of the importance of the clear identification of the entrance to the site in association with a very large aged care facility which is likely to have a higher than average reliance on ambulance services overnight.

A reduction in the required car parking for a proposed medical centre and the display of an internally illuminated business identification sign in accordance with the endorsed plans.

1. Before the display of the sign hereby approved, two (2) copies of amended plans drawn to scale and dimensioned, must be submitted to the Responsible Authority for approval. No sign must be erected until the plans have been approved and endorsed by the Responsible Authority. The endorsed copy of the plans forms part of this permit. The plans must be in accordance with the plans submitted with the application, but modified to show:
   • (a) The sign being no higher than the peak of the closest decorative gable on the Frank Street facade of the existing building;
   • (b) The provision of one (1) bicycle space.
   • (c) A notation specifying the maximum brightness (Lux level) of the proposed internally illuminated sign to ensure no unreasonable loss of amenity for neighbouring properties in accordance with the assessment of a suitably qualified lighting expert submitted to and approved by the responsible authority.

1. The layout of the development and signage as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.

1. Once the development has started, it must be continued and completed in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.
2. The dispensary area must remain ancillary to the Medical Centre and only open during the hours of operation of the Medical Centre.

1. The car parking provided on the land must always be available for use by persons employed on or visiting the subject premises, and no measures may be taken to restrict access to the carpark by such persons, all to the satisfaction of the Responsible Authority.

1. Unless with/the further consent of the Responsible Authority, there must be no more than five persons providing health services within the medical centre at any one time (for the purposes of this condition the persons providing health services include, general practitioners, pathology collectors and pharmacists).

1. This permit will expire if:
   • (a) The use does not start within one (1) year of the completion of the development, or
   • (b) The use is discontinued for a period of two (2) years.

Before the permit expires or within six (6) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

The owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date to complete the development or a stage of the development if:

1. the request for the extension is made within twelve (12) months after the permit expires; and
2. the development or stage started lawfully before the permit expired.

[1] I was advised by Mr Bennetts that residents in Frank Street had approached council seeking better management of car parking within Frank Street. However, residents had been reluctant to accept car parking restrictions within the Street.

[2] Clause 10.04 of the Greater Dandenong Planning Scheme.

[3] VICCAT is the actual jurisdiction identifier used in the medium and neutral citation for the AustLII database which contains decisions of the Administrative Appeals Tribunal a predecessor of the Victorian Civil and Administrative Tribunal. The database does include some decisions made under the auspices of the Victorian Civil and Administrative Tribunal, presumably decisions in respect of applications commenced in the Administrative Appeals Tribunal but decided after the creation of the Victorian Civil and Administrative Tribunal.