Mr N Crawford of Best Hooper solicitors. Evidence was called from Mr J Brownlie, traffic engineer.

Following demolition of the existing dwelling, construction of a single storey office to a height of 5 metres with 4 on-site car spaces. The office floor area would be 539.1 square metres with access to on-site parking via Shillidays Lane. Existing commercial premises would remain with modified façades.

• Business 2 Zone.
• Design and Development Overlay (Schedule 3).

• Clause 34.01 for buildings and works in association with the use of the land for an office.
• Clause 52.06 to reduce car parking requirements.

Clauses 11, 12, 17.01, 17.02, 18.02, 19.03, 21, 22.07 (Services Agency Policy), 22.10 (Mildura Car Parking Policy) and 65.

The site is 1,275 square metres in three titles and is on the south-east corner of Lime Avenue and Tenth Street. It also has a frontage to Shillidays Lane that services an existing period dwelling. The balance of the review site is developed with four commercial premises (based on their current usage - one is vacant, one is a shop and two are offices) fronting Tenth Avenue. The shops do not appear to have any on-site parking and two spaces are associated with the dwelling. On-street angled parking abuts the site in Lime Avenue and Tenth Street.

The surrounding sites are developed with a variety of predominantly commercial uses including a new retail development that is in construction. There is a dwelling to the south of the site. Shillidays Lane is 6 metres wide.

1. Inland Consultants proposes an office development on a corner site within Mildura's central business district. The Responsible Authority rejected an earlier version of the proposal, which was for shops. The Council maintains its opposition to the revised proposal for offices on grounds that the arrangements for car parking are still not satisfactory and fail to comply with the provisions and policies within the Mildura Planning Scheme. The Council is also concerned that waste storage facilities have not been provided but it is not pursuing concerns with respect to the earlier version of the application relating to the use of the land and a lack of loading facilities. The Council's grounds are contested by the permit applicant relying on the evidence of Mr Brownlie.
2. Having considered all submissions, and having inspected the site and locality before and after to the hearing, I will affirm the Council's decision. My reasons follow noting that I do not recite all of the submissions in full.

1. It is common ground between the parties that the use of the land for offices would accord with the purpose of the Business 2 Zone (for which no permit is required) as well as the 1999 Urban Design Framework and most recent Mildura CBD Plan that both earmark the area of the review site as a business precinct. It is also common ground that the proposal's built form and design outcomes would accord with the Design and Development Overlay for the Mildura CBD (DDO3). Given these matters are agreed, I do not intend addressing them in detail but it is important to recognise that they are factors that weigh in favour of the permit application.

Should the reduction in parking requested be allowed?

1. This is the determinative issue in this proceeding and the matter that is at the core of the dispute between the parties.
2. In summary, the Council submitted the proposal fails to provide sufficient car parking on-site to service the needs of the office use(s) having regard to the provisions of DDO3 and local policy at Clause 22.10. Mr Vorchheimer submitted the proposal would add to parking pressure in Mildura's CBD by providing only around 60-70% of the already reduced parking rate for offices contained in Clause 22.10. He stressed the local policy has been developed for local conditions and with regard to community views about parking. Mr Vorchheimer also expressed concern about the adequacy of access to the car spaces that would consequently affect the area's amenity.
3. In response, and in summary, the Applicant submitted an appropriate volume of car parking is proposed on-site with ample on-street parking currently available. Mr Crawford referred to the expansion of on-street parking shortly to be undertaken by the Council in nearby Pine Avenue and the lack of any evidence to support the Council's submissions that car parking should be approached differently to a metropolitan situation. He said the proposal would not place unreasonable pressure on public car parking given the amount of vacant car spaces toward this outer area of the Mildura CBD (contrasting with higher utilisation near the mall) and available along the site's frontages. Mr Crawford also referred to reductions in parking provided notably the nearby retail development.
4. Mr Crawford relied on Mr Brownlie's evidence. That evidence included on-site provision could be increased to five spaces based on design in accordance with AS2810.1-2004. That would result in six staff and two visitor spaces being required off-site. Mr Brownlie said that parking could be accommodated off-site based on the existing parking supply noting additional on-street parking to be in construction in Pine Avenue that would increase the available parking within around 200 metres of the review site.
5. The purpose of Clause 52.06 includes to provide car parking facilities in accordance with state and local policy, to provide an appropriate number of car spaces having regard to the activities on the land and nature of the locality, and to ensure the design and location of car spaces enables easy and efficient use.
6. In this case, the local policy sets a parking rate for office and some other uses proposed within the CBD. The rate for office is reduced to 2.5 spaces per 100 square metres of net floor area from the VPP standard of 3.5 spaces per 100 square metres of net floor area. That means 13 spaces are required for the proposed development based on Mr Brownlie's evidence. Four on-site spaces are proposed, with a fifth possible in Mr Brownlie's opinion. That means under half the staff parking needs would be met on-site. Thus, over half the staff parking and all visitor/customer parking would rely on public parking on-street or in off-street car parks, with the former the most proximate to the proposed offices.
7. The local policy has been introduced into the Scheme to provide consistency and certainty. The policy's objectives include:
   • To provide car parking at a rate which is appropriate to the use of the land in the context of the CBD area.
   • To provide a clear, equitable and consistent approach to decision making under Clause 52.06 in the CBD area.
   • To provide incentives for developers to include community benefits in their designs so as to offset car parking requirements.
   • To provide certainty for developers on options for the alternate provision of parking including the payment of a cash in lieu contribution.
8. Clause 22.10 sets out decision guidelines for considering any further reduction in parking including:
   • Whether the proposal is for extensions, redevelopment, re-use or a new development.
   • The amount of parking credit which applies to the site.
   • The availability of on street and off street car parking within 200 metres of the site.
   • Whether the proposal incorporates pedestrian linkages and amenity features as specified in the Mildura Urban Design Framework July 1999.
   • The provision of bicycle parking.
   • The need for building setbacks to retain the existing rhythm and scale of development.
   • Whether the option of a cash-in-lieu contribution is appropriate having regard to the cost of each space which is to be determined and annually reviewed by council.
   • The provisions of Clause 43.02 (DDO3) - CBD.
9. Clause 22.10 recognises that there is available on-street parking which increases away from the retail core, as evident in this extract:

On-street parking in the CBD area is plentiful although haphazardly used; while major off-street car parking has typically been provided in "clusters" by council or around dominant retail uses such as a supermarket. Traffic and parking surveys done for the Mildura CBD over the last decade indicate that there is a surplus of car parking supply over demand although this surplus increases away from the core of the retail area.....

1. This is influential to my decision about this permit application. Parking is sought by the Scheme through individual developments on the basis of the rates defined as suitable for this area cognisant of the existing public supply and public perceptions. The local policy, and documents from which it derives such as the Car Parking Policy in the CBD Area June 2005 by the Mildura Rural City Council, indicate the amount of public parking in the CBD does not need to be supplemented by significant amounts of additional car parking at present. Public perceptions of a shortfall in parking are sought to be addressed by embellishing the existing resource without establishing major new car parks at this time (noting that might change into the future). The Council's forthcoming works in Pine Avenue are an example - reworking the existing road space to increase on-street supply. That is one part of the Council's strategy. Another part is to apply the rates included in Clause 22.10 to new development in recognition of the public's habits with respect to parking with a rate of 2.5 spaces for office uses having been applied (albeit not consistently) since before 1996[2]. The proposal before me proposes to provide four of 13 sought by Clause 22.10.
2. Despite its reference in Clause 22.10, cash-in-lieu is not an available option given there is no development contributions plan. No reliance is placed by the Applicant on credits.
3. The third point cited in paragraph 11 is the most critical to the submissions made by the Applicant in addition to the last point. Mr Brownlie's surveys, that seek to validate information gathered by the Council over some years, confirm the availability of on-street parking.
4. The proposal would not absorb all or even a majority of the available public parking resource. Even so, I am concerned about the equity of an outcome where only four or five of 13 spaces are provided on-site (also noting none are on-site for the existing four premises) and over half the staff parking would be off-site. The local policy must be given significant weight and the proposal falls well short of its obligations in the context of a locality that can reasonably be expected to be increasingly busy in time.
5. In Leonora[3] Member Keaney said:

... but a decision to have (as submitted) an office building with less than half its parking on-site flies in the face of Council's recent strategic planning and it is at odds with orderly and proper planning. ...Council has a really solid new strategic planning foundation provided in its UDF which says that 3.5 spaces are required for every 100m² of office floor area. In addition, they propose some centralised off-street public car parks to complement this rate of on-site provision. Council has a sound central area car parking strategy in its new UDF but this application, at about half the required rate, would undermine that strategic direction....I am finally not convinced that the criteria for a reduction as specified at Clause 52.06-1 are met by this proposal. While there may be empirical evidence to support the case especially in James and Stephenson, as I have noted, this is likely to be a short term outcome which the applicant will benefit from to the detriment of other users and subsequent developers. Approval of the development will mean that there is forever a site not sharing its burden of car parking responsibility and this will impose an inheritance of undersupply throughout the central area.

1. I find similar points are apt in the current case even though the rates applied differ based on local circumstances. That is, to apply the policy consistently and equitably, more on-site parking (and more than four spaces) is necessary in the proposed development of the review site.
2. It is also necessary to consider DDO3. DDO3 addresses parking in its decision guidelines - this is relevant to how design and development might be approached. On my reading, offices and retail uses are not intended to be treated identically by the following decision guidelines:
   • Whether car parking for retail premises should be accommodated in municipal owned and operated off-street car park stations rather than on-site.
   • Whether on-site car parking is provided, wherever possible for office development.
3. Although both shop and office have reduced parking rates based on Clause 22.10, I think there is a greater focus on office uses providing for their demands in accordance with the reduced rate in Clause 22.10 compared with retailing that might be addressed in a different way having regard to the context of a specific site and proposal. While that cannot be considered in isolation from other parts of the Scheme, it is one reason why I do not consider reductions applied for retail uses can be considered in the same way as for offices as is relevant to the examples referred to by the parties notably the retail development in construction opposite the review site.
4. For these reasons, I am not persuaded the proposal gives effect to the outcomes sought for the Mildura CBD with respect to car parking.

What about facilities for loading and waste storage/disposal?

1. The plans do not provide for any area for waste collection/storage. The tight layout associated with the parking area would place some constraint on available options and this matter should be addressed in any fresh permit application.
2. I have no issue with on-street loading for the proposed office-based uses and this was not a matter pursued by the Council at the hearing.

1. For the above reasons, I will affirm the decision made by the Council and direct that no permit be issued.

[1] Based on plans I substituted at the commencement of the hearing without objection from any party. I also granted leave to amend the permit application to refer to buildings and works for office rather than shop (the original proposal).

[2] Car Parking Policy in the CBD Area June 2005 by the Mildura Rural City Council at page 13.

[3] Leonara Group (Pakenham) Pty Ltd v Cardinia SC [2005] VCAT 385 at paragraphs 27, 29 and 30.