The application is for the operation of the ground floor as a natural therapy centre offering remedial/Thai massage. The hours of operation proposed are from 10.00 am to 7.00 pm Monday to Saturday with a maximum of two staff operating on the premises at any one time.
[2]
The subject site is located within a Business 1 Zone under the provisions of the Monash Planning Scheme. A planning permit is required to construct a building or carry out works within the zone. A natural therapy centre is an inominate use which requires planning approval. A planning permit is also required to reduce the car parking requirements as contained in Clause 52.06-5.
The Responsible Authority and the Tribunal in its shoes are required to have regard to State and Local Planning Policy in assessing the proposal.
[3]
Klanklon v Monash CC [2007] VCAT 1106 | Case summary | Zoe
The present application, Application No. 34403 was lodged with the Responsible Authority on 8 September 2006. The application came about as a result of enforcement action being taken by the Council regarding works that had been undertaken on-site without the benefit of a permit and the use having commenced without planning approval.
Advertising of the application was undertaken by way of a sign on the front of the premises and notices to surrounding land owners and occupiers. No objections were received.
The development on the site has a somewhat complex history which is outlined in detail in Ms Moser's submission. In summary the original permit, Permit No. 28410 was issued for an office at ground floor level, a one bedroom dwelling at first floor and four tandem car spaces off the lane. The Responsible Authority's assessment at that time was that the two uses together would require some five car parking spaces and exercised their discretion in agreeing to the provision of four. The applicant subsequently requested an amendment to the endorsed plans which included a rearrangement of the upper level to provide for two bedrooms. Around this time the Council was informed that a number of illegal works had taken place on site including the construction of a kitchen extending into the car parking area and the conversion of the upstairs dwelling to a three bedroom residence. Amended plans provided to the Council showed some upright supports located within the parking area which together with the kitchen significantly reduced the area available for car parking. It was Council's view, at that time, that the changes that had been made to the internal ground floor layout and the addition of the kitchen did not of themselves attract an additional parking requirement for the ground floor but that the additional bedrooms at first floor triggered a need for two car parking spaces to be provided, ie. a total of six spaces. An amended permit, Permit No. 28410A was issued including the condition appealed to provide for four on-site spaces.
[4]
The central issue in this appeal relates to the number of spaces that can be provided for on the site with the kitchenette retained and whether this number of spaces will provide adequately for the residential and the therapy use both with respect to the number of spaces and their accessibility.
It was Council's contention that the residential use required two car spaces to be provided and the present application an equal number. It was put to the Tribunal that it was essential that these four spaces be provided for on site with the street spaces being available for visitors to the therapy centre and the residential premises. It was Ms Moser's contention, on behalf of the Council, that the construction of the kitchen prevented parking being available for four standard vehicles ie. the 85 percentile vehicle (B85).
The applicant called expert traffic evidence from Mr Robertson with respect to the number of accessible spaces that could be provided to the rear of the site. It was Mr Robertson's evidence that it would be possible to provide for three standard car parking spaces on the land and that a fourth smaller car could also be accommodated.
Mr Robertson provided turning diagrams demonstrating the level of accessibility. It should be noted that the post structures that are shown on the October 2006 plans that were of concern to the Responsible Authority are not present in the rear of the site. Mr Robertson was of the view that it would be unlikely that all four cars associated with the uses on site would be of the B85 design vehicle nor that the two office cars would be parked at the same time as two residential cars. He also drew the Tribunal's attention to the wealth of public transport in the area and the level of occupancy of the car parking in the immediate vicinity as observed by him in a number of spot surveys.
I find that there are reasonable grounds for allowing for a waiver of car parking requirements on the site. These include the level of public transport available and the lower parking demand observed by Mr Robertson for the spaces immediately adjoining the small shopping centre which was born out of the Tribunal's inspection. This relatively low demand seems, in the Tribunal's view, to be consistent with the nature of the shops that make up this small centre.
I also find that the proximity of Monash University and the possibility that the residential premises would be occupied by students without cars a positive factor. I accept the contention of Ms Moser that parking in the rear of this site is quite difficult and would tend to discourage the parking of a third car. It is my view however that with or without the kitchen there is still a high probability of any third and fourth cars being parked in the street because of the constraints provided by the width of the area available to the rear.
In conclusion it is my view that the condition should be removed from both permits. This is not an area where there was any evidence of high parking demand. The proposed use will at maximum attract a demand for two car spaces and the residential use may or may not have any car parking demand associated with it. If the residents and the operators of the massage premises do own vehicles there is a statistical likelihood that one of them will be smaller than the 85 percentile vehicle allowing for four cars to be parked if necessary.
In coming to the above conclusion I am accepting that the present owner of the land was unaware that the works had been carried out on site illegally when he purchased the premises. The requirement to remove the illegal kitchen is in my view too great an impost in circumstances where the necessity for the provision of four car spaces at the 85 percentile is not established.
Parties
Applicant/Plaintiff:
Klanklon
Respondent/Defendant:
Monash CC [2007] VCAT 1106
Cases Cited (1)
Klanklon v Monash CC [2007] VCAT 1106 (25 June 2007)