The Residential 1 Zone[3] provides for a wide range of non-residential uses subject to the grant of a permit. Non-residential uses in this zone have the potential to adversely affect the amenity of the residential areas. This policy provides guidance on the performance standards to be met by such non-residential uses

1. The objective of the policy is to ensure that residential amenity is not adversely affected by non-residential uses. The policy states:
   • Existing buildings constructed for non-residential purposes are the preferred location for non-residential uses.
   • Food and drink premises, places of assembly, places of worship and plant nurseries should have access to and adjoin a road in a Road Zone.
   • Except on land adjoining and gaining direct access from a road in a Road Zone:
     • all required car parking should be on-site.
     • the scale of the proposed use should be compatible with providing service to the local residential community.
   • Hours of operation should be limited to 8am to 8pm except for convenience shop.
   • New buildings and works should be consistent with the scale, bulk and character of the area.
   • Noise emissions should be compatible with a residential environment
2. There are aspects of the existing use and the proposed amendments to it that are varied from specific provisions of the local policy. I note in this respect the non-provision of onsite car parking for the existing use and the proposed use, and the proposed hours of operation.
3. The granting of the permit for the medical centre is confirmation that the Council is satisfied that the medical centre is acceptable having regard to the relevant provisions of the planning scheme, including the local policy. These matters concerning the use of the site for a medical centre are not before me in this case. The issues that are before me concern the proposed amendments to the permit. In particular, is the use of the front room in the existing building for activities including, yoga, meditation and information seminars acceptable having regard to the planning scheme provisions, including the local policy?
4. I am satisfied that, subject to the imposition of appropriate permit conditions, the proposed amendments to the permit are acceptable with respect to the provisions of the zone and the policy framework. My findings are informed by the following:
   • As I have commented above the NRZ1 contemplates non-residential uses in residential areas and the local policy provides a framework for considering the acceptability of individual proposals. This is consistent with the broad sweep of both State[4] and local policy which encourage uses that serve a community function in residential areas that are well located in terms of their proximity to public transport and activity centres. The proposed amendments to the permit are consistent with those outcomes.
   • The scale, nature and intensity of the proposed use is such that it is compatible with providing a service to the local residential community. While prospective patrons may originate from a wider geographical area, it can reasonably be anticipated that local residents will also avail themselves of the services provided.
   • The use occupies an existing building currently used for non-residential purposes.
   • The non-provision of onsite car parking needs to be considered in the context that no permit is required under Clause 52.06 in relation to the restricted recreation use. Similarly, there is therefore no review rights available to the applicant for review in relation to the provision of car parking. I acknowledge that the decision guidelines of the NRZ1[5] calls for a consideration of among other things, the provision of car and bicycle parking and associated accessways in assessing the acceptability of a non-residential use and development. This is a matter I address in more detail below.

1. As I commented above there are no review rights available to the applicant for review in relation to the provision of car parking. The amenity consequences of not providing car parking are however relevant to my consideration because the decision guidelines of the NRZ1 require me to consider that issue. The decision guidelines of Clause 65.01 are also relevant because these require the Council and the Tribunal on review to consider, before deciding on an application, a range of matters including the orderly planning of the area and the effect on the amenity of the area. The effect of not providing car parking does have the potential to contribute orderly planning and amenity considerations.
2. In this case the applicant for review's submission raises amenity related matters that are primarily concerned with the impact of the proposal caused by the conduct of patrons external to the review site. The applicant for review equates these impacts to the non-provision of on-site car parking and the necessity for patrons to therefore use available on-street parking.
3. The applicant for review's concerns are documented in the sworn affidavit tabled at the hearing. The applicant for review however did not attend the hearing and was not available to be cross examined. Consequently, neither the respondent nor the Tribunal was able to establish through questioning the veracity of the claims that, for example, the disturbances in the street derived exclusively from the operations on the review site or originated from other sources. The weight that I can give to the affidavit is therefore necessarily diminished.
4. This is not to say that I should not consider the applicant for review's concerns. I am satisfied however that the use of the front room in the building to conduct yoga and meditation classes and related information sessions is complementary to the existing medical centre and its operations are capable of being effectively managed through the imposition of appropriate permit conditions.
5. I have reached this conclusion because the yoga and meditation component of the use is a generally passive and benign use unlikely to generate noise emissions from within the site that are incompatible with the site's residential context. The scale and intensity of the proposed use is also a relevant consideration in this respect. The confinement of the activities to a single room with an area of 41m2 is likely to be effective by itself in containing the intensity of the use to levels that are acceptable in this residential context. Permit conditions further controlling the scale and intensity of use reinforce my views and provide me with high levels of confidence about the acceptability of the proposal.
6. Having regard to the scale and intensity of the use, I am not persuaded that any additional on-street car parking generated by this use, increased traffic movements and/or pedestrian movements associated with patrons using the facility will contribute to adverse amenity impacts that could be considered unreasonable or unacceptable in this inner urban residential context.
7. In relation to the proposed hours of operation there are some non-residential uses that I would be unlikely to approve with extended hours beyond those specified in Clause 22.01. In this case however, having regard to the passive and benign nature of the use, combined with the limited scale and intensity of the use, the proposed hours of operation are acceptable and are consistent with the policy basis of Clause 22.01.

1. At the end of the hearing I raised a number of issues about the appropriateness of proposed permit conditions and the parties provided me with submissions in relation to those matters.
2. In deciding the conditions to be included on the amended permit I have had regard to the submissions of the parties in addition to the matters which arise from my reasons.

1. For the reasons explained above, the decision of the Responsible Authority is varied. An amended permit is issued subject to conditions.

1. I have been nominated pursuant to Clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, as the member who is a legal practitioner to provide an opinion on a question of law arising in the proceeding.

1. The questions of law to be decided are:
   • (i) Has the Council erred in applying the car parking requirements under Clause 52.06 of the Scheme for the proposed restricted recreation user?
   • (ii) Does Clause 52.06-6 allow for a permit applicant to provide zero car parking spaces?
   • (iii) Whether or not a permit trigger is present under Clause 52.06 of the Scheme?
2. For reasons I explain below question three goes to the jurisdiction of the Tribunal in these proceedings. Because of this, I have determined question three first, followed by questions one and two.

1. The applicant for review has raised three questions of law which have been referred to me. All of these questions relate to the application of clause 52.06 of the Yarra Planning Scheme (the Scheme) to the proposed restricted recreation use.
2. I understand that these questions of law arise in the context of an application which has been made to amend existing planning permit no. PLN14/0830 (the Permit), which was issued by the responsible authority on 4 March 2015 and authorised the following on the subject land, in accordance with endorsed plans:
   • use and development as a medical centre including a ground floor extension and partial demolition (including demolition of a wall at 11 & 11A Carroll St, Richmond);
   • reduction in the car parking requirement; and
   • construct display signage.
3. I understand that the amendment to the Permit sought by the respondent will:
   • increase the hours for the approved medical centre; and
   • add a new restricted recreation use (with hours of operation consistent with the increased hours sought for the medical centre).
4. Plans endorsed under the Permit do not show any car parking on the subject land. Rather, the endorsed plans show the removal of the previously existing crossover which provided vehicle access between the site and Stanley Street.
5. The applicant for review objected to the proposed amendments to the Permit, however, the responsible authority decided to amend the permit as sought by the permit applicant. The applicant for review has now applied to this Tribunal under section 82 of the Planning and Environment Act 1987 (Vic) (P&E Act) for a review of this decision of the responsible authority to grant an amendment to the Permit.

Question 3: Is a permit trigger is present under Clause 52.06 of the Scheme?

1. Clause 52.06 applies before a new land use commences or before there are certain expansions to an existing use (see clause 52.06-2). Clause 52.06 sets out the car parking requirements for that new or expanded use. The requirements of clause 52.06 apply irrespective of whether a planning permit is required for the new or expanded use under other provisions of the Scheme.
2. The car parking requirements for many types of land uses are specified by clause 52.06 itself, in a table contained in clause 52.06-5.
3. A planning permit can be sought under clause 52.06-3 to reduce the requirements otherwise imposed by clause 52.06-5. Clause 52.06-7 sets out the application requirements and decision guidelines for such permit applications.
4. Where clause 52.06-5 does not specify the car parking requirements for a particular land use, then clause 52.06-6 applies. It says that:

Where a use of land is not specified in Table 1 or where a car parking requirement is not specified for the use in another provision of the planning scheme or in a schedule to the Parking Overlay, before a new use commences or the floor area or site area of an existing use is increased, car parking spaces must be provided to the satisfaction of the responsible authority...

1. The Permit currently authorises the use of the subject land for a medical centre. This is a use for which car parking requirements are specified by clause 52.06-5. However, the existing permit allows the reduction of that requirement to zero. The proposed extension to the hours of operation are not an expansion of the use which triggers the application of clause 52.06.[6] This means that clause 52.06 does not apply to the proposed changes to the operation of the medical centre and there is no permit trigger arising under clause 52.06 in respect of those changes.
2. The respondent also seeks to amend the Permit to also allow a new restricted recreation us. Clause 52.06 does apply to this new use. Restricted recreation is not a use listed in clause 52.06-5 of the Scheme. Therefore, clause 52.06-6 applies and before that new use commences, car parking spaces must be provided to the satisfaction of the responsible authority. There is no requirement under clause 52.06 for a planning permit to be obtained in respect of this car parking provision. The question of whether sufficient car parking has been provided is a matter for the responsible authority to determine under clause 52.06-6 to its satisfaction.
3. In this instance, the responsible authority has decided that the proposal for no on-site car parking/zero car parking is to its satisfaction.
4. This is not a decision which results in the grant of a planning permit/amended planning permit under clause 52.06. Rather, it is a decision of the responsible authority under the Scheme in respect of a matter that the Scheme says must be done to its satisfaction.
5. As was explained by the Tribunal in Semmens v East Gippsland SC (Red Dot) [2006] VCAT 683 and other cases[7], while the permit applicant may be able to seek review of such decisions, these decisions are not able to be the subject of an application for review brought by an objector under section 82 of the P&E Act. This is because applications for review under section 82 of the P&E Act can only be brought in respect of decisions of the responsible authority to grant a permit or amendments to permits.
6. Decisions of the responsible authority as to whether matters are to its satisfaction are able to be reviewed by the Tribunal under section 149 of the P&E Act. However, while applications for review under section 149 of the P&E Act can be brought by a permit applicant, they cannot be brought by objectors.
7. The applicant for review refers in its submissions to a number of decisions of the Tribunal where it says that the Tribunal has reviewed a decision of a responsible authority made under clause 52.06-6 (or previous equivalent clauses). I note that there may be a number of contexts in which this may have occurred, for example, as part of an application for review brought by a permit applicant. It also does not seem that the question of the Tribunal's jurisdiction was a matter which was the subject of any detailed submissions or consideration in those cases.
8. It follows from the above that I find that in answer to question 3, no planning permit trigger is present under clause 52.06 of the Scheme in respect of the proposed amendment to the Permit.
9. It also follows from the above that as there is no planning permit trigger present under clause 52.06 in this instance, there is no decision of the responsible authority under clause 52.06 to grant a planning permit which could be the subject of an appeal under section 82 of the P&E Act. This means that there is no application before the Tribunal in these proceedings, to review the merits of the decision made by the responsible authority under clause 52.06 as to whether car parking has been provided to its satisfaction.

Question 1: Has the Council erred in applying the car parking requirements under Clause 52.06 of the Scheme for the proposed restricted recreation user?

1. The submissions of the applicant for review, in raising this question of law, assert that the responsible authority has erred in applying the car parking requirements of clause 52.06 in respect of the restricted recreation use, including by:
   • indicating that it would be satisfied with no less than eight car parking spaces then applying clause 52.06-5 to reduce those spaces required by Council to zero when there is no mechanism in the scheme for this reduction;
   • applying clause 52.06-7 to its purported reduction, and in doing so utilising its own car parking demand assessment rather than one provided by the permit applicant.
2. In my view, the issues raised by the applicant for review in respect of question one are, in essence, questions which ask me to review a decision made by the responsible authority under clause 52.06 of the scheme. As I have explained in my answer to question three, there is no ability for the applicant for review to seek a review of this decision. Therefore, I do not consider I have any jurisdiction in these proceedings to consider the merits of the decision of the responsible authority under clause 52.06.
3. I have not been asked to consider and therefore make no findings as to whether the decision of the responsible authority under clause 52.06 is relevant to the decisions of the responsible authority under other clauses of the scheme which are reviewable by this Tribunal in these proceedings (e.g. the decision of the responsible authority to grant an amended permit under the Neighbourhood Residential Zone applicable to the site). This will therefore be a matter for Senior Member Hewet to determine. In these circumstances, I consider it appropriate to make some comments about question one in the event that Senior Member Hewet finds it to be relevant to other decisions of the responsible authority which are reviewable in these proceedings. My comments are:
   • I agree with the applicant for review that there are some references in the "Planning Application DAP report" (DAP Report) which seem to point to clause 52.06-5 rather than clause 52.06-6 as the relevant clause under which the decision as to car parking provision was made by the responsible authority. However, in my view, it is clear from the overall content of the DAP Report that the responsible authority proceeded on the basis that there was no car parking requirement for the restricted retail use under clause 52.06-5 and therefore that car parking provision was to be to its satisfaction under clause 52.06-6.
   • The process which appears from the DAP Report to have been adopted by the responsible authority in assessing whether it was satisfied of the proposed zero car parking provision, was to work out what the usual car parking demand would be for a restricted recreation use of a similar floor area (which it found to be eight spaces). It then to considered whether what was proposed was acceptable in the particular circumstances. In doing so, the responsible authority has taken into account similar considerations to those it would have considered had the usual car parking demand of eight spaces been a requirement of clause 52.06-5. In doing so, the DAP Report at times confusingly references clause 52.06-5 and clause 52.06-7.
   • However, in no part of the DAP Report is there any indication that the responsible authority considered there to be any car parking requirement contained in clause 52.06-5 which was applicable. Rather, the DAP report makes it clear numerous times that there is no such requirement and that car parking is therefore a matter which is to be provided to the responsible authority's satisfaction.
   • Also, no part of the DAP Report, including the table on page 8, concludes that the responsible authority requires eight spaces to be satisfied that there is sufficient car parking for the proposed restricted recreation use. Rather, the DAP Report, at pages 16 and 17, clearly concludes that the proposal for no on-site car parking is satisfactory to the responsible authority.
4. It follows from the above that to the extent to which question one is seeking a review of the decision of the responsible authority under clause 52.06, I have no jurisdiction to answer it. However, to the extent that this question raises issues relevant to other decisions which are within the jurisdiction of the Tribunal in these proceedings, I do not find the Council to have erred in the manner suggested by the applicant for review.

Question 2: Does Clause 52.06-6 allow for a permit applicant to provide ZERO car parking space?

1. The applicant for review says that clause 52.06-6 requires at least one car parking space to be provided. She says this because she says the term "must" used in clause 52.06 removes any discretion as to whether or not the permit applicant provides car parking spaces. The applicant for review says that while "spaces" can be read as singular or plural, it cannot be read as zero.
2. As for question 1, the issues raised by the applicant for review in respect of question two are, in essence, questions which ask me to review a decision made by the responsible authority under clause 52.06 of the scheme. As I have explained in my answers to questions one and three, there is no ability for the applicant for review to seek a review of this decision and I do not have any jurisdiction in these proceedings to consider the merits of the decision of the responsible authority under clause 52.06.
3. However, again, as for question one, while I do not have jurisdiction in these proceedings to review the decisions of the responsible authority made under clause 52.06, I consider it appropriate to nonetheless make some comments about question two in the event that Senior Member Hewet finds this question is also relevant to other decisions which are the subject of review in these proceedings. My comments are:
   • I do not agree with the applicant for review's interpretation of clause 52.06-6. The clear intent of clause 52.06-6, when read in the context of clause 52.06 as a whole, is for the car parking provision for uses not covered by clause 52.06-5 to be a matter for the responsible authority to assess and be satisfied about, rather than being specified by the Scheme. In my view, the plain meaning of the requirement in clause 52.06-6 that "car parking spaces must be provided to the satisfaction of the responsible authority" provides scope for the responsible authority to be satisfied with any quantity of spaces including zero/no spaces, as is appropriate in the particular circumstances.
   • To read clause 52.06-6 as a requirement in the Scheme for at least one space to be provided would lead to absurd outcomes, where uses with no car parking demand at all were required to provide a car parking space, with no discretion to vary this.
   • The applicant for review points to Planning Practice Note 22[8] in support of her reading of clause 52.06-6. She places weight on what she says is a requirement for a plan to be provided showing the car parking layout, with no option but to submit those plans. However, clause 52.06-8, which is the statutory basis for the requirement for a car parking plan, makes it clear that there is no such requirement where no car parking spaces are proposed to be provided. Therefore, there is no basis in the Scheme for the applicant for review's submissions on this point.
4. It follows from the above, that to the extent to which question two is seeking a review of the decision of the responsible authority under clause 52.06, I have no jurisdiction to answer it. However, to the extent that this question is relevant to other decisions which are within the jurisdiction of the Tribunal in these proceedings, I find that clause 52.06-6 allows a permit applicant to provide zero car parking spaces.

1. I am of the opinion that the question of law set out above should be decided as follows:
   • (i) Has the Council erred in applying the car parking requirements under Clause 52.06 of the Scheme for the proposed restricted recreation user?

I do not have jurisdiction in these proceedings to review the decision of the responsible authority under clause 52.06.

However, to the extent that this question is relevant to other decisions which are within the jurisdiction of the Tribunal in these proceedings, I do not find the Council to have erred in the manner suggested by the applicant for review.

(ii) Does Clause 52.06-6 allow for a permit applicant to provide zero car parking spaces?

I do not have jurisdiction in these proceedings to review the decision of the responsible authority under clause 52.06.

However, to the extent that this question is relevant to other decisions which are within the jurisdiction of the Tribunal in these proceedings, I find that clause 52.06-6 allows a permit applicant to provide zero car parking spaces.

(iii) Whether or not a permit trigger is present under Clause 52.06 of the Scheme?

No, there is no permit trigger under clause 52.06 in this instance.

[1] I/We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I/We do not recite or refer to all of the contents of those documents in these reasons.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To recognise areas of predominantly single and double storey residential development.

To manage and ensure that development respects the identified neighbourhood character, heritage,

To allow educational, recreational, religious, community and a limited range of other non-residential

uses to serve local community needs in appropriate locations.

[3] The Residential 1 zone predates the introduction of the NRZ. The policy has not been updated to reflect the new residential zones. I have proceeded on the basis that the policy is applicable to residential zones in this municipality.

[4] Clause 15.01-4S & 15.01-4R (20 Minute Neighbourhoods)

[6] For medical centres, increased floor/site area or increased number of medical practitioners are expansions of the use which cause 52.06 to apply.

[7] See e.g. Vu v Monash CC [2015] VCAT 1623; Save Our Seat Inc v Mornington Peninsula SC (Red Dot) [2014] VCAT 1494.

[8] (June 2015) The State of Victoria Department of Environment, Land, Water and Planning.