The decision of the responsible authority is affirmed. A permit must not be granted.

Mr How Ng, town planner, appeared on behalf of the Applicant for Review.

Ms S. Moser, town planner, appeared on behalf of the Responsible Authority.

Mr A. Raicevic, Ms A. Atkinson and Ms J Bodourian, appeared on their own behalf.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("The Act") brought by the Melbourne Business Consortium to review a decision by the City of Monash ("The Council") to refuse a permit .

2. At the commencement of the hearing I raised with the parties an issue related to the standing of the objectors in this matter having regard to clause 34.01-4 of the planning scheme which exempts applications for buildings and works in the Business 1 zone from notice and review provisions. Clause 34.01-4 states:

An application is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the

decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of

the Act. This exemption does not apply to an application for a building or works within 30

metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for

a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or

3. Mr Ng advised that he would be making submissions with respect to this matter and I gave directions providing all parties with the opportunity to make written submissions on this matter. I also obtained the consent of all paries to decide the question of law in accordance with clause 66 1 (a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

4. During the course of the hearing Mr Ng submitted that third party rights to objection and review in this application are limited to residents of the residentially zoned property located within 30 metres of the review site. I received a subsequent submission from Ms Moser and a further submission from Mr Ng, in accordance with the Direction issued by me at the hearing.

5. Having considered those submissions and the relevant provisions of the planning scheme, I agree with Ms Moser's submission that the exemption from the notice and review provisions of the Act is not limited only to those residents of a residentially zoned property located within 30 metres of the site. The exemption from the notice and review requirements of the Act does not apply in the circumstances identified in clause 34.01-4 (i.e. ".....an application for a building or works within 30 metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school) and in those circumstances Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act apply and are not limited in the manner claimed by Mr Ng.

6. A permit is also required for the use of the land for the purpose of office and dwelling and for a reduction in the provision of car parking pursuant to clause 52.06 of the planning scheme. Exemptions from notice and review do not apply with respect to either of these matters.

7. It is proposed to demolish three shops which currently occupy the site and to construct a building comprising three levels and incorporating a 100% site coverage. Two offices are proposed to be located on the ground floor fronting Poath Road, and twelve residential apartments are proposed on the second and third levels. A covered car park of 18 spaces is proposed to be provided at ground level, behind the two offices, accessed from Arthur Street via a 3.05 metre wide, unmade gravel right of way which runs for a distance of 46 metres behind the commercial buildings located to the south of the review site, and which truncates at the southern boundary of the review site.

8. The two proposed offices are intended to have a floor area of 171.4 and 56.09 square metres respectively. Four of the apartments are proposed to be single bedroom and are located on one level of the building. The remaining eight apartments are proposed to have two bedrooms and are located over two levels, with living areas on level 1 and bedrooms on level 2. The apartments would be accessed via stairs in an entry foyer fronting Poath Road, and from the ground floor car park.

9. The upper levels of the building are proposed to be recessed from the ground floor footprint, and private open space to the apartments is proposed in the form of balconies on the upper levels.

10. The subject site is located on the east side of Poath Road within a local, strip shopping centre which abuts the Hughesdale railway station. The review site is rectangular in configuration with a fronatge of 15.24 metres, a depth of 64.01 metres and area of 964.17 square metres. Three single storey commercial buildings currently occupy the site

11. Abutting the site to the north is a dental surgery while to the south is a row of double storey commercial buildings dating from the interwar period. These buildings are currently used for a variety of commercial purposes and at least one of them (the building abutting the review site) contains a residence.

12. Immediately to the east of the site is an elderly persons residential facility containing 42 units.

13. Poath Road is an arterial road which runs between North Road and the Princes Highway. In the vicinity of the site Poath Road provides one lane in each direction and separate parking lanes on both sides of the road. Residential streets intersect with Poath Road and Arthur Street, from which access to the site via the unmade right of way exists, has a pavement width of 7.7 metres and a reservation width of 15.5 metres, immediately east of Poath Road. The pavement width widens to 9.9 metres to provide 4 indented parking spaces on the north side of the street between Poath Road and the right of way. Beyond the right of way to the east, the pavement width reverts to 7.7 metres.

14. The review site is zoned Business 1 pursuant to the Monash Planning Scheme. The purpose of the zone is, in addition to implementing the State and Local Planning Policy Frameworks, "to encourage the intensive development of business centres for retailing, and other complementary commercial, entertainment and community uses".

15. A dwelling is included in section 1 of the table of uses (clause 34.01-1) and a permit is not required to use land for the purpose of a dwelling, subject the following condition:

Any frontage at ground floor level must not exceed 2 metres.

16. The entry foyer to the dwellings has a ground level dimension at the frontage of the site of 3.5 metres, and a permit is therefore required for the dwelling use.

17. An office is included in section 1 of the table of uses and a permit is not required to use land for the purpose of an office, subject to the following condition:

The combined leasable floor area for all offices must not exceed any amount specified in the schedule to this zone. Any frontage at ground floor level must not exceed 2 metres and access must not be shared with a dwelling (other than a caretaker's house), unless the office is a bank, real estate agency, travel agency, or any other office where the floor space adjoining the frontage is a customer service area accessible to the public.

18. The frontage of the office use to Poath Road is approximately 12 metres and a permit is therefore required to use the land for that purpose.

19. Under the provisions of clause 34.01-2, a use must not detrimentally affect the amenity of the neighbourhood including through the:

* Transport of materials, goods or commodities to or from the land.

* Appearance of any building, works or materials.

* Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

20. Decision guidelines with respect to the considerations of applications for the use of land are at clause 34.01-2.

21. A permit is required to construct a building or construct or carry out works pursuant to clause 34.01-4. As I indicated previously, an application under this clause is exempt from notice requirements and review rights, subject to the land not being located within 30 metres of land in a Residential 1 zone. The exemptions do not therefore apply in this case, for the reasons outlined in paragraphs 2 to 6 of this decision. Decision guidelines are also included in clause 34.01-4.

22. A permit is required to reduce or to waive the number of car spaces required to be provided by the table to clause 52.06-5. Twenty six parking spaces are required to be provided in accordance with the planning scheme and 18 spaces are proposed to be provided. The applicant must satisfy the responsible authority that a reduction in parking provision is justified having regard to the Decision guidelines at clause 52.06-1.

23. With respect to the State and Local Planning Policy Frameworks, the following clauses are relevant:

* Clause 22.03 Industry and Business Development and Character Policy

Council Consideration and the Application for Review

25. The council had previously issued a permit ( No. 27428) in March 2001 for the development of the review site for two shops, two offices and four dwellings, to be accommodated in a two storey building located within the front one third of the site. The plans submitted with that application showed that the balance of the site would be used for the provision of 16 car parking spaces. These spaces would not be enclosed in the manner proposed in the current application.

26. The application which is currently before me was submitted to the council in May 2001, and following the giving of notice of the application, four objections were received. The main grounds of objection were summarised for me by Ms Moser and these related primarily to concerns about the inadequate car parking contributing to existing parking problems in the area, vehicular access arrangements contributing to traffic congestion, overdevelopment of the site, and impact on the amenity of residents of the adjoining property.

27. The application was considered by the council at its meeting on 24 July, 2001 and was refused on the following grounds:

1. An inadequate number of car spaces have been provided for the proposed uses.

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 proposed development will have an adverse impact on the amenity of an adjoining property.

28. An Application to Review the council's decision was subsequently commenced and cited the following grounds:

1. The proposal is well designed in the context of the Business 1 zoning of the land and especially in terms of the alleged mass, bulk and scale.

2. Amenity must be assessed in the in the light of the zoning of the land and development in the area.

3. Adequate car parking has been provided, especially in the light of the existing situation.

4. The refusal lacks planning common sense and is thus unreasonable.

29. At the review hearing, all parties tabled and read from written submissions and made oral presentations.

30. Mr Ng called Mr N. Sideridis, traffic engineer of C.S Traffic Surveys, to give evidence. Mr Sideridis gave evidence and presented a written report, and was made available for cross examination.

31. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

32. Having considered the submissions made to me and the evidence presented and having considered the provisions of the planning scheme, it is my view that the proposal in its present form, does not achieve acceptable outcomes in terms of those provisions and I propose to affirm the council's decision and direct that no permit should issue.

33. Notwithstanding the above, there are element of the proposal which are supported by and achieve acceptable outcomes having regard to the provisions of the planning scheme, and in recognition of my findings in that respect I think it would be useful in terms of confining my decision to a discussion of the critical issues, to identify those elements which do achieve acceptable planning outcomes. These are as follows:

* The proposal would contribute to increased residential densities and the provision of increased diversity in housing without adversely impacting on the character of established residential areas, outcomes which are specifically encouraged by the planning scheme. The site is ideally located for a mixed commercial/residential development, having regard to its zoning, proximity to the railway station and other services and facilities.

* The proposed development would sit comfortably in the Poath Road streetscape, having regard to the proposal's two storey form at the front of the site and recessed third level, and the dominant two storey scale and form of adjoining and nearby developments in the Business 1 zone.

* The proposal's interface with the adjoining Residential 1 zone, a matter to which I am required to have regard pursuant to the Decision guidelines of clause 34.01-4, is acceptable and is not inconsistent with the form and scale of development which would be reasonably expected in a Business 1 zone.

* The amenity impacts of the proposal on the property to the south, need to be considered in the context that both the review site and the property to the south are zoned Business 1. I acknowledge that the adjoining property does contain a residential component which is used in conjunction with the retail use which also operates from the site. The rear yard of the adjoining property has been converted into a functional private open space area and the proposed development will impact on that area through both overshadowing and the visual bulk of the wall proposed to be constructed on the boundary of the two properties. While an impact of this magnitude would in my view, be unacceptable in most residential neighbourhoods zoned Residential 1, they are not unacceptable where the properties are zoned Business 1 where "...the intensive development of business centres for retailing, and other complementary commercial, entertainment and community uses" is specifically encouraged by the zone purposes. This Tribunal and its predecessors has consistently held that the amenity expectations of residents who live within a Business zone, cannot be the same as those of people who live in a residential neighbourhood zoned for residential purposes. I therefore agree with Mr Ng's submission that it is inappropriate to seek to constrain the development of land zoned Business 1 for a mixed commercial/residential use, on the basis that adjoining, similarly zoned land is currently used for a residential use.

34. My principal concerns regarding this proposal relate to the provision of car parking and the difficulties associated with obtaining vehicular access to the site. In my view the proposal makes inadequate arrangements for car parking and access having regard to the intensity of the use of the land and in particular the number of uses and separate occupancies proposed to be provided.

35. A total of 26 parking spaces are required to be provided under clause 52.06 of the planning scheme, with the two office uses generating a requirement for 8 spaces and the twelve dwellings generating a requirement for 18 spaces, including two visitor spaces. The applicants are therefore seeking a permit to reduce the number of spaces by eight. It was Mr Sideridis' evidence that the shortfall of eight spaces would only arise in practice if the peak parking demand for the offices and dwellings coincide, and that a sharing of parking spaces between the uses is likely given the different times of peak parking demand of the two uses.

36. I have not been persuaded that a sharing of spaces is capable of being relied upon in this instance, given the number of dwellings (12) which are proposed and the consequent difficulties associated with the management of the use of the car park by residents and office workers. While the sharing of parking spaces in mixed use developments, is not uncommon the success of such arrangements is dependant upon the ability to have in place cooperative and effective management practices so that spaces which are unused at particular times of the day by, for example a resident, are capable of being used by someone else. These arrangements become increasingly difficult when there is a large number of people who are required to be a party to them, and given the numbers of people involved in this case, I am not confident about the likely success of such arrangements.

37. My concerns in this respect are compounded by the difficulties of obtaining access to the car park via the long (42 metres), narrow (3.135 metre), right of way. Mr Sideridis went to great lengths to demonstrate how the right of way would be used in practice, and in doing so sought to rely on the opportunities available in Arthur Street for queuing in circumstances where vehicles are attempting to access the site while another vehicle is eggressing. While I acknowledge that access to the site is possible, I do not regard it as either suitable, convenient or practical for a development and use of the intensity proposed here, incorporating 14 separate occupancies and two different uses.

38. In terms of the availability of on street parking upon which the applicants also seek to rely in justification for a reduction in the provision of parking, I note Mr Sideridis's evidence with respect to the existing supply of on street parking and its utilisation. However, the survey area upon which the evidence is based extends beyond what I would regard as the review site's sphere of influence and includes available on street parking in residential streets which are considerably distant from the review site.

39. I think it also significant that it was Mr Sideridis's evidence that the proposal would be likely to rely on available all day, on street parking in Lydson Street which is located to the south west of the site, on the opposite side of Poath Road, and the impact of the proposal would be to increase utilisation of parking in Lydson Street from current levels of 21% to 44 %.

40. Lydson Street is a primarily residential street which intersects with Poath Road. While I accept that a level of overflow parking from the Poath Road shopping centre would be expected in a street such as Lydson Street, I do not consider that it is acceptable for a new development of the scale proposed here, located within a commercial precinct, to rely on available on street parking in relatively distant residential streets.

41. Mr Ng also submitted that I should give consideration to applying parking credits for the previous commercial use of the land. Mr Ng correctly referred me to the Decision guidelines under Clause 52.06-1 which includes provision for the consideration of a credit deemed to have been provided in association with a use which existed before the change of parking requirement.

42. In concluding that it is not appropriate to apply parking credits in this case, I am influenced by the decision of the Tribunal constituted by Judge Wood and Senior Member Marsden in Phillip Island Conservation Soc. V Bass Coast SC (2000) 6 VPR 262, in which detailed consideration was given to the appropriate application of parking credits. The Tribunal held that in determining whether a parking credit is justified, it must turn its mind to the particular circumstances which apply in each case. The fact that the application did not involve the retention of, or modification to, existing buildings which might pose some constraints on the proper development of the site, was identified as a relevant factor in determining whether or not credits ought to be applied.

43. The Tribunal concluded that this (together with other facors):

"...........militate against a generous exercise of discretion in relation to parking credits. The total clearance of the site offers an opportunity to ensure the redevelopment is, from a parking viewpoint, largely self sufficient............."

44. The present application also involves the total clearance of the site and in my view that fact alone is sufficient to dissuade me from exercising the discretion available to apply a parking credit.

45. Having regard to my reservations about the prospects for effective sharing of parking spaces, the difficulties associated with accessing the proposed car park, the reliance on parking availability in residential streets, and the limited applicability of parking credits for the previous use, I am not satisfied that sufficient justification for a reduction in car parking sought by the applicant, has been demonstrated.

46. Mr Ng also submitted that my consideration of the proposal needs to be carried out in the context that the council has issued a permit for a commercial/residential use of the land incorporating 16 parking spaces using the same access arrangements which are proposed here. I agree with Mr Ng that this is a relevant consideration, but it does not persuade me that a permit ought to be issued for the current proposal.

47. The development previously approved by the council to which Mr Ng refers is significantly different to that which is now before me. The floor area of the building in the approved development is 959 square metres which compares to the 1300 square metres (approx.) in the current proposal and, perhaps more importantly, the approved development provides for eight separate occupancies of which four are dwellings, rather than the 14 now proposed.

48. In my view, the car parking characteristics of the approved development are very different to those of the current proposal and, given the constraints to the development of this site created by the access difficulties, the scale of that development and the intensity of the use (to the extent that the proposed uses have implications for the number of car parking spaces which are required to be provided), responds adequately to those constraints. For the reasons which I have outlined above, I think that the current proposal has been prepared in a manner which effectively ignores the constraints which affect this site and does not achieve the appropriate balance which is achieved by the development which has been approved by the council.

49. The decision of the Tribunal is that the council's decision is affirmed and no permit shall issue.