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[2001] VCAT 263
appellant. The responsible authority's refusal was set aside. A permit was directed to be issued for nine single-storey shops, car parking, a clock tower, road-pavement alterations and associated works,...
The Tribunal approved a nine-shop development on a vacant former service-station site in Mount Eliza. It considered that the development would strengthen the shopping centre's retail frontage and pedestrian connections. It accepted expert evidence that parking demand and traffic could be managed, and that the design and landscaping would improve the streetscape. It therefore overturned Council's refusal and directed that a permit be issued with conditions.
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Mount Eliza Retail Investments Pty Ltd applied for a permit to develop 87 Mount Eliza Way, a vacant site at the intersection of Mount Eliza Way and Canadian Bay Road. The land had formerly been used as a service station and included a slip lane and adjoining service-road land. The Tribunal described the site as a roughly triangular parcel of 1,829 square metres, within the fragmented Mount Eliza commercial centre ([6]-[7]).
1 cited instrument linked from this judgment.
Council refused the permit application on 18 August 2000. Its stated grounds were that the proposal was an overdevelopment in terms of floor area and parking, would unreasonably contribute to traffic conflict in Canadian Bay Road, had insufficient readily available nearby parking, and did not satisfactorily address the Canadian Bay Road streetscape ([16]). Seven objections had been received. They raised related concerns about on-site and on-street parking, traffic management, continuous retail frontage, vegetation removal, and the relationship with a proposed urban design and streetscape plan ([15]).
The applicant sought review under s 77 of the Planning and Environment Act 1987 ([1], [17]). At the hearing, the Tribunal approved the substitution of revised plans. Among other changes, those plans reduced the number of tenancies from eleven to nine, increased on-site parking from 20 to 22 spaces, added a loading bay, altered access and on-street parking arrangements, and replaced earlier tower designs with a 10-metre clock tower over a pedestrian walkway ([2]-[5]). The reasons later describe the proposal as nine shops with 901 square metres of lettable floor area, while the proposal description at [8] refers to 904 square metres. This is an inconsistency in the judgment text, and the decision's conclusion does not turn on resolving it.
The Tribunal considered three principal topics: retail development, traffic and car parking, and streetscape ([20]). It set aside Council's refusal and directed that a permit issue, subject to conditions governing matters such as construction, drainage, landscaping, road works, loading, lighting, signage, maintenance and permit expiry. The permit description includes a dispensation from the standard car-parking provision.
The Tribunal's reasoning was an assessment of this proposal against the site, the planning controls and the expert evidence. It did not announce a general rule that similar retail proposals must be approved. Its conclusion followed from its findings about this site and the evidence in this proceeding.
On retail planning, the Tribunal started with the commercial-centre context. The intersection was a large, signalised, open space that fragmented the shopping centre. The vacant site itself further separated the retail activity on Mount Eliza Way, Canadian Bay Road and the adjoining Mount Eliza Village Centre ([23]). The Business 1 Zone objective included encouraging intensive retail and complementary commercial, entertainment and community uses. Local policy also sought orderly commercial design, contribution to local character and the public realm, and continuous retail frontage ([24]).
The Tribunal considered that the proposal would advance those objectives. The shops would extend the active Mount Eliza Way frontage, turn the retail frontage around the corner into Canadian Bay Road, reduce the gap between the northern and southern parts of the centre, and provide a paved plaza leading towards a pedestrian crossing. The car park would be placed on the Canadian Bay Road side, which the Tribunal described as less active for retail at that point ([25]). It also treated the site's irregular, tapering shape as a design constraint, rather than assessing the proportion of retail space and parking without regard to the parcel's form ([26]). Although some building sections exceeded the overlay's stated wall and building heights, the Tribunal regarded the stepped elevation as an appropriate response to the slope ([27]).
Parking was a central dispute. The planning scheme figure cited in the reasons was eight spaces per 100 square metres for an unspecified shop use, which yielded a requirement of 72 spaces ([32]). The Tribunal also considered evidence that the category of shop covered different types of retail with different parking demand, and that the scheme allowed the requirement to be adjusted by reference to specified criteria ([32]). The proposed provision described in the reasons was 22 on-site spaces and 19 on-street spaces ([9]).
The traffic expert, Mr Grogan, relied on parking accumulation surveys at the centre. The Tribunal recorded that 766 public-use spaces were available, 530 in the reduced area closest to the site. At the surveyed Friday and Saturday peak times, 23 per cent and 22 per cent respectively of spaces in that reduced area remained vacant ([31]). His evidence estimated that the proposed development would generate peak demand of no more than four spaces per 100 square metres, or 36 spaces for the proposed floor area. He compared this with an effective supply of 35 spaces, identifying a one-space shortfall that could be accommodated within existing nearby public parking ([33]). The Tribunal expressly adopted his evidence on traffic and car parking ([36]).
The accepted traffic evidence also addressed the access and road changes. It estimated approximately 33 vehicle movements per hour to and from the site at peak times, assuming time-limited parking and an average stay of 40 minutes. It said the relocated slip lane and closure of a median gap would reduce vehicle conflict points and contribute to road safety ([34]). The Tribunal accepted the overall conclusion that traffic could be accommodated on the local network without impact on existing motorists, and that the road changes would improve the local road environment ([35]-[36]).
On streetscape, the Tribunal found the shops would form an attractive modern group oriented to Mount Eliza Way. It regarded the glazed clock tower as a point of visual interest and noted the plaza, tree planting and landscaping ([37]-[38]). It adopted Ms Peterson's evidence about streetscape character and policy compliance ([39]). The conclusion was that the development would make a positive contribution and that, in light of the expert evidence, the objectors' concerns were unlikely to be realised ([41]).
The judgment does not describe a change in the law or establish a new legal test. It applies the existing planning controls and policies identified in the reasons to one permit review. Its value as a precedent is therefore principally in its example of how the Tribunal assessed retail intensity, parking, traffic and design together in a particular commercial-centre setting.
Before the decision, Council's refusal rested on four planning concerns: overdevelopment, traffic conflict, lack of readily available parking and insufficient streetscape response ([16]). After reviewing the application and the substituted plans, the Tribunal reached a different merits assessment. It found support for the proposal in the zone and local policy objectives, accepted the traffic and parking evidence, and found the design response appropriate to the site ([24]-[27], [31]-[39]). The operative legal result was that Council's refusal was set aside and a permit was directed to issue ([42]).
The judgment identifies s 77 of the Planning and Environment Act 1987 as the review mechanism ([1]). It also lists relevant scheme provisions and controls, including the Business Zone, Design and Development Overlay, car-parking provisions and decision guidelines ([11]-[14]). It does not set out the text of every listed provision, nor does it explain a broader doctrinal relationship between them. Any account of the law beyond what this decision expressly records would need sources outside this judgment and is not supplied here.
At [24], the Tribunal identifies planning policies favouring orderly commercial design, a positive contribution to local character and the public realm, and continuous retail frontage. In plain English, the relevant planning question was not only how much floor space the proposal contained. The layout and its relationship with the shopping centre also mattered.
At [25], the Tribunal explains why it considered the proposal consistent with those objectives: it would extend shop frontage, reduce a gap in the centre, create a pedestrian plaza, and position parking on a less active retail frontage. In practical terms, the Tribunal treated the development's arrangement as part of its planning merit, not as a neutral detail.
At [32]-[33], the Tribunal records the difference between the scheme's standard parking calculation and the expert's evidence about expected demand. The scheme figure produced 72 spaces. The expert evidence estimated demand of 36 spaces and a one-space difference from the effective 35-space supply, which he said could be absorbed in nearby public spaces. The Tribunal accepted that evidence at [36]. This does not mean the standard figure was irrelevant; it means the Tribunal considered it alongside the evidence and the applicable scope for adjustment.
At [34]-[35], the evidence addressed traffic movements and the proposed changes to the slip lane and median. The expert's view was that these measures could reduce conflict points and improve safety. At [36], the Tribunal adopted the traffic and parking evidence. In plain English, the Tribunal accepted the evidence-based assessment of likely effects rather than the objectors' concerns as predictions of what would occur.
At [41]-[42], the Tribunal states its overall conclusion and orders that a permit issue. This is the decision's direct outcome. It rests on the preceding findings about policy fit, parking, traffic and streetscape, rather than a rule that objectors' concerns or parking standards can be disregarded generally.
The decision is most relevant as an example where a proposed retail development is located within an existing commercial centre, and the assessment involves the combined effects of retail frontage, parking, traffic circulation and streetscape. The particular facts included a vacant former service-station site at a major signalised intersection, a fragmented shopping centre, nearby retail complexes, existing public parking, and a proposed pedestrian connection ([6]-[9], [23]).
It may be informative where a proposal's standard scheme parking calculation appears substantially higher than the demand estimated for the actual retail mix, especially if the planning scheme provides for adjustment and there is evidence about nearby parking availability. Here, the Tribunal relied on parking surveys and an expert estimate, including the measured vacancies at the surveyed peak periods ([31]-[36]). The reasoning does not establish that nearby parking will always compensate for an on-site shortfall. The evidence concerned this centre, its surveyed parking supply and this proposal.
The decision may also be relevant where proposed traffic works change access arrangements or reduce vehicle conflict points. The Tribunal relied on expert evidence about a relocated slip lane, a closed median gap and predicted site movements ([34]-[36]). The case does not establish that those designs, or comparable works, will be appropriate elsewhere.
Finally, it provides an example of assessing height and design against the site's slope and the overlay objectives. The Tribunal accepted a stepped form despite some heights exceeding the figures recorded for the overlay, because it considered the response appropriate to the landform ([27]). That finding depends on the controls and site circumstances described in this judgment.
The provided judgment contains no citations to later decisions and gives no account of how later courts or tribunals treated this decision. No later-court treatment can therefore be identified from the source text supplied.
Within the decision itself, there are no identified judicial precedents analysed or applied. The Tribunal's reasoning instead refers to statutory and planning-scheme material and to expert evidence. Its findings are grounded in the local planning controls and the specific evidence presented ([11]-[14], [31]-[39]). A separate later-treatment search would be needed to assess whether subsequent decisions have followed, distinguished, explained or otherwise considered this decision. That history cannot be inferred from the judgment.
The reasons do not detail the particular criteria by which the planning-scheme parking requirement could be adjusted, although they state that specified criteria existed and several were relevant ([32]). They also do not explain the legal or technical basis for the permit's dispensation from the standard provision beyond the discussion of the scheme figure and the accepted demand evidence.
The parking surveys covered a Friday and Saturday in May 2000. The expert acknowledged that summer could produce a different result, while observing that Mount Eliza was not a high-volume tourist destination ([31]). The judgment does not report summer survey data or quantify how seasonal conditions might change demand.
There is also a textual inconsistency in the stated floor area: [8] records 904 square metres, while [21] and the quoted evidence at [33] refer to 901 and 900.9 square metres respectively. The decision does not resolve this difference. The permit order itself authorises the development in accordance with endorsed plans, but those plans are not reproduced in the supplied text.
The judgment records the Tribunal's view that the stepped building response was appropriate despite some portions exceeding overlay height figures ([27]). It does not set out a broader interpretation of how those figures operate, or whether a separate permit or variation mechanism was required. The decision should therefore be read as a fact-specific merits assessment, not as a complete exposition of the overlay's legal operation.
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Planning List; Application under s.77 of Planning and Environment Act 1987; Mornington Peninsular Planning Scheme; Business 1 Zone; retail shops; car parking; traffic management.
The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for the land at 87 Mount Eliza Way, Mornington.
The construction 9 single storey shops, car parking spaces, clock tower, alterations to road pavement and associated works and dispensation to the standard car parking space provision in accordance with the endorsed plans.
1. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.
2. Prior to the occupation of the development permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:
b) Properly formed to such levels that they can be used in accordance with the plans.
e) Line-marked to indicate each car space and all access lanes.
Parking areas and access lanes must be kept available for these purposes at all times.
3. Construction plans for all parking areas, access lanes, and drainage must be approved by the responsible authority prior to the start of the approved works.
4. All areas of the development must be drained to the existing stormwater pit at the intersection of Mount Eliza Way and Canadian Bay Road via an underground drainage system or to the satisfaction of the Responsible Authority. This drainage system must include permanent siltation control measures and during construction and litter trap.
5. Before the use allowed by this permit starts landscaping works in accordance with a landscape plan prepared to the satisfaction of the Responsible Authority and must then maintained in accordance with the endorsed plans to the satisfaction of the Responsible Authority.
6. All road works and/or internal traffic measures are to be generally in accordance with the endorsed plans and are to be designed and constructed to the satisfaction of the Responsible Authority at the cost of the permit holder.
7. All disused vehicle crossings shall be removed and the area reinstated to kerb and channel and paved to the satisfaction of the Responsible Authority.
8. Goods or materials must not be stored between the building and the streets.
9. The loading and unloading of goods from vehicles must only be carried out on the land.
10. Outdoor lighting must be baffled and located to prevent light causing detriment to the locality.
11. Disposal of rubbish and location of rubbish receptacles must be to the satisfaction of the Responsible Authority.
12. The selection of paving materials to be used on the land must be to the satisfaction of the Responsible Authority.
13. Adequate signs and pavement markings must be provided to direct and control the flow of traffic within the site, to the satisfaction of the Responsible Authority.
14. The clock shall remain operable at all times and maintained to the satisfaction of the Responsible Authority.
15. Air-conditioning or other plant equipment must be baffled and screened to the satisfaction of the Responsible Authority.
16. This permit will expire if one of the following applies,
a) Development is not started within two years of the date of this permit
b) Development is not completed within four years of the date this of this permit.
The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.
_____________________________
For the Applicant for Review: Mr Graeme Peake of Counsel by direct brief.
Mr Peake called Ms Colleen Peterson, Town Planner of SJB Planning Pty Ltd and Mr Desmond Grogan, Traffic Engineer of Grogan Richards Pty Ltd, to give evidence.
For the Responsible Authority: Mr Peter Bergman, Development Planner, Mornington Peninsula Shire Council.
For the Respondent Objectors: Mr Max Brewer on behalf of Teringa Investments Pty Ltd.
Dr Margot Breidahl on behalf of the Ranelagh Residents' Association Inc.
Mr Richard Umbers of Stokes Planning Pty Ltd on behalf of Ritchies Stores Pty Ltd.
Mr Geoffrey Gordon, representing the Mount Eliza Association for Environmental Care.
1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the Mornington Peninsula Shire Council to refuse to grant a permit (in Application No. P000685) for the land at 87 Mount Eliza Way to be developed for the purpose of 9 shops and associated car parking and road works.
2. At the commencement of the hearing and pursuant to Clause 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1988 (`VCAT Act'), Mr Peake requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.
3. Copies of the revised plans had been forwarded to all parties under cover of a letter dated 23 October 2000 detailing the changes and outlining the permit applicant's intention to seek approval for their substitution.
4. Mr Peake briefly outlined the nature and extent of the changes. These included:
* Reduction in the retail floor space (as defined by the MPPS) from 904² to 901m² and decrease in the number of tenancies from 11 to 9;
* Increase in the provision of on-site car parking from 20 to 22 with the inclusion of a loading bay and modification to the service yards;
* Inclusion of a pedestrian walkway from the car park between shops 3 and 4;
* Reconfiguration of the building at the corner of Mt Eliza Way and Canadian Bay Road;
* Widening of the crossover from Canadian Bay Road from 5.5m to 7m;
* Deletion of three proposed on-street spaces along the northern section of Canadian Bay Road;
* Provision of angle car parking along Mt Eliza Way, increasing the total provision of on-street spaces for the entire site from 7 to 19, including one disabled car parking space;
* Proposed planting of street trees along Canadian Bay Road outside site;
* Deletion of a 12m high clock tower at the intersection of Mt Eliza Way and Canadian Bay Road and the 9 metre glass tower and their replacement with a 10m high clock translucent glass tower over the pedestrian walkway; and
* Minor modification to the facades of the building to reflect ground floor changes.
5. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, the Tribunal made the amendment in the manner requested.
6. The subject site is located on the south side of the corner of Mount Eliza Way and Canadian Bay Road, Mount Eliza. The site is irregular in shape and has an area of 1829 square metres. The site was formerly used as a service station. The site includes an adjoining service road slip lane (598m²).
7. The Tribunal finds the following description of the site and locality, taken from Mr Bergman's written submission, to be an appropriate one:
The site is nearly triangular in shape and is located at the intersection of Canadian Bay Road and Mount Eliza Way. It is currently vacant and has recently been used as a temporary informal car park. For more than 30 years part of the site has been used as a road. This includes the 'slip lane' to the main carriageway of Mount Eliza Way.
The site is centrally located in the Commercial Centre which is fragmented due to the location of these roads and Ranelagh Drive.
The site has frontages to Mount Eliza Way and Canadian Bay Road of 77.7 metres and 50.7 metres respectively.
There are 2 vehicle crossovers to both Mount Eliza Way and Canadian Bay Road. There is a 2.0 metre fall to Shop 1 from the common boundary with the Mount Eliza Village retail complex.
On the Mount Eliza Way service road there are 6 car spaces.
* 89 Mount Eliza Way (Rear abuttal to Canadian Bay Road)
The Mount Eliza Village retail complex 4250 m ' approved in 1987, has a Gross Leasable Floor Area of 3264m. It includes a Ritchies supermarket, specialty shops, basement and surface car parks (114 and 42 spaces respectively). The supermarket's loading bay is accessed from Canadian Bay Road adjoining the subject land.
* 85 Mount Eliza Way (Corner Canadian Bay Road)
The Eliza Square retail complex, approved in 1972, includes a Safeway supermarket, specialty shops and 185 space car park. There is one-way access to the car park from Canadian Bay Road.
* 73-75 Canadian Bay Road (Corner Clarkestown Avenue)
Application for Review 2000/56768/Planning Application P.000376 for a Petrol Plus service station, alterations to the above car park and signage concluded hearing on 8 November 2000.
* Village Green Reserve (Landscaped area to the north between the roads)
Planning Permit P.000427 for a monthly Sunday wine market - 15 stalls (10.00am - 2.00pm) was issued on 15 September 2000.
Mount Eliza Way is a Collector Road, that commences north of Gillards Road at Nepean Highway passes through the Commercial Centre and returns to Nepean Highway opposite Peninsula School and Mount Eliza Primary Schools, where it becomes Wooralla Drive. At the frontage of the application site it has a divided carriageway with service roads on both sides of the main carriageways. The existing southbound pavement has a pavement width of 5.4 metres. Bus routes operate along Mount Eliza Way linking Frankston to Portsea.
Canadian Bay Road is a Collector Road, that commences at Port Phillip Bay passes through the Commercial Centre, passes the secondary college and terminates at the Moorooduc Quarry Flora and Fauna Reserve. There are footpaths in front of the site. It has a pavement width of 12.8 metres.
The intersection of Mount Eliza Way and Canadian Bay Road is controlled by, traffic signals.
8. It is proposed to develop retail premises with a total floor area of 904m² in 9 shops ranging in size from 41m² to 173m². A translucent glass tower with clock will be constructed over a pedestrian walkway linking the car parking area with Mount Eliza Way. Shops Nos 2-9 will have frontages to Mount Eliza Way. The maximum retail height of the building will range from 5.8m to 6.8m.
9. A single crossover 7.0m wide will provide access to the car parking area at the southern end of the site on Canadian Bay Road. A total of 41 car parking spaces will be provided comprising 22 at the rear of the shops and a loading bay on site and 19 on-street spaces with 5 in Canadian Bay Road and 14 in Mount Eliza Way, including disabled space.
10. Two trees are to be removed at the intersection and six trees are proposed to be planted on road reserves subject to Council approval.
Vegetation Protection Overlay 1 - Township Vegetation. A permit is generally required to remove, destroy on top vegetation.
Design and Development Overlay 1 - Township Design.
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To encourage intensive development of business centres for retailing and other complimentary commercial, entertainment and community uses.
13. The relevant objectives of the Design and Development Overlay 1 are:
* To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.
* To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.
14. Relevant sections of the planning scheme include:
13. Principles of land use and development planning
18.02 Car parking and public transport access to development
21.06 Strategic framework and the Peninsula's settlement pattern
15. The subject application for permit (No. P000685) was lodged with the Responsible Authority on 13 April 2000. Following the giving of notice of the application, 7 objections were received. The grounds for objection were summarised by Mr Bergman as follows:
* Continuous retail frontage in the focal point of the commercial centre;
* Traffic management implications including conflict with the adjoining and opposite retail centres;
* Co-ordination with the intent of the proposed Mount Eliza Commercial Centre Urban Design & Streetscape Plan;
* Development should be confined to the existing service station site;
16. At its meeting on 18 August 2000 the Council resolved to refuse to grant a permit on the following grounds:
1. The proposal is an overdevelopment of the site in terms of building floor area and car parking space provision.
2. The proposal would unreasonably contribute to increased traffic conflict in Canadian Bay Road.
3. Insufficient car parking spaces are readily available in the immediate locality for the development.
4. The design response does not satisfactorily address the Canadian Bay Road streetscape.
17. The subject application for review was lodged on 24 August 2000. The stated grounds for review were that:
1. The proposal is not an overdevelopment of the site in terms of building area and car parking space provision.
2. The proposal would not contribute to increased traffic conflict in Canadian Bay Road.
3. There is sufficient car parking spaces readily available in the immediate locality for the development?
4. The design response does satisfactorily address the Canadian Bay Road streetscape.
5. The proposal is consistent with orderly and proper planning.
18. By forwarding grounds for contesting the application for review the following objectors became parties to the proceeding: Geoffrey Gordon, Ranelagh Residents Association, Ritchies Stores Pty Ltd, Teringal Investments Pty Ltd and David Rew Real Estate. Those parties or their representatives that attended the hearing tabled and spoke to written submissions.
19. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area.
20. The principal issues for consideration in respect of this application for review fall into three categories:
21. The proposed development of 9 shops with a total lettable floor area of 901m² will occupy slightly less than half the site are of 1829m². The remainder of the site is devoted to car parking and a loading bay.
22. One of the grounds for Council's refusal and a criticism made by some objectors was that the proposal represented an over development of the site. Putting to one side the issue of car parking, which will be addressed later in the decision, it is necessary to have regard to the other objectives of the planning scheme in the context of the site.
23. The intersection of Mount Eliza Way and Canadian Bay Road is in the midst of the Mount Eliza Shopping Centre. It is a very large and open signalised intersection that effectively fragments the shopping centre, creating a large break between the north and south sections. At the present time the subject site is a peninsular of vacant land further separating retail activities on the Canadian Bay Road frontage to the east, the Mount Eliza Way shops to the west and the Mount Eliza Village Centre adjoining the subject site to the south.
24. The proposed shops are a permitted use within the Business 1 Zone, the second objective of which is to encourage intensive development of business centres for retailing and other complementary commercial, entertainment and community uses. Under Clause 22.02-2 of the Local Planning Policies, Commercial Subdivisions and Siting, the first objective is to achieve orderly design and development in commercial areas by maintaining consistent standards for building in relation to siting, height and landscaping. In clause 22.02-3 it is policy that:
The design of new commercial development positively contribute to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties; and
Development should contribute to pedestrian amenity and safety by maintaining a continuous retail frontage.
25. In the Tribunal's view, the proposal will contribute to the realisation of these objectives and policies in the following ways:
* Developing a continuous retail frontage along Mount Eliza Way, the street with the most active retail frontage opposite and in Shop 1, carrying that frontage around the corner into Canadian Bay Road opposite Eliza Square.
* Extending the developed portion of the site north thereby reducing the gap between north and south elements of the shopping centre and providing a paved plaza leading to a pedestrian crossing.
* Locating the on-site car park on the Canadian Bay Road side of the site opposite the Eliza Square facility car park. Canadian Bay Road becomes a less active retail area here with a transition to residential use on the east side and the rear and service related aspects of the Ritchies Supermarket on the west side.
26. It is apparent that the irregular shape of the site, which tapers as it approaches the intersection, imposes its own set of constraints on what can be achieved in regard to design and the relative proportion of the site able to be devoted to retail space and car parking.
27. Although sections of the single storey shops are higher than the maximum wall height of 5.5m and building height of 6m provided under Schedule 1 to the Design and Development Overlay, the Tribunal regards the stepped elevation, following the slope of the land from Ritchies Supermarket down to the corner, an appropriate response to the site.
28. All objectors at the hearing were critical of what they saw as insufficient parking provisions in the proposal. This was various described as being:
* on-street parking already overtaxed at certain times in some parts of the centre;
* parking at a lesser ratio than that provided for in the planning scheme was regarded as a symptom of overdevelopment of the site.
29. The principal concerns in relation to traffic related to a likely conflict between vehicles entering and leaving the Safeway Supermarket car park and the Petrol Plus site, the subject site, and the driveway to the basement car park in the Mt Eliza Village Centre. As a consequence, a preference was expressed that there should be no on-street parking on the Canadian Bay Road frontage of the site.
30. Dr Breidahl, on behalf of the Ranelagh Residents' Association, drew attention to the importance of the `slip lane' allowing a left hand turn from Canadian Bay Road into Mount Eliza Way and the necessity for the redesigned configuration to work satisfactorily. It was suggested that the slip way and pedestrian crossing should be constructed prior to commencement of the proposed development. Such reconstruction is made necessary because the existing slip way and part of the service road linking it to the main south bound carriageway of Mount Eliza Way, form part of the land on the title of the site.
31. Based on parking accumulation surveys conducted on Friday 26 and Saturday 27 May, 2000. Mr Grogan demonstrated that 766 parking spaces were available for public use, 530 of which were located in a reduced area closest to the site. At the time of peak demand on Friday 1.30pm 123 (23%) of spaces in the reduced area remained vacant. At the time of the Saturday peak at 11.00am, 115 (22%) of spaces remained vacant. Mr Grogan acknowledged that a different result may be obtained during summer months although he observed that Mount Eliza is not a high volume tourist destination.
32. The planning scheme specifies a parking requirement of 8 car spaces to each 100 square metres of leasable floor area for unspecified `shop' uses. This equates to a parking requirement of 72 spaces. However, Mr Grogan observed that the definition of `shop' encompasses a wide range of retail uses that generate different parking demands. The scheme provides for the parking requirement to be adjusted in response to specified criteria, several of which are relevant to the subject proposal.
33. In relation to the adequacy of the proposed parking provision, Mr Grogan said:
Grogan Richards Pty Ltd has undertaken parking accumulation surveys at a number of strip shopping centres. These include surveys in outer and fringe suburban areas of Melbourne which revealed peak parking demand rates of 2.6 and 3.7 spaces per 100 square metres of retail floor area. The higher of these parking demand rates was recorded at a strip shopping centre that includes a Safeway supermarket, which increases the parking demand rate for the strip shopping centre as a whole.
On the basis of the results of these case studies, it is expected that the proposed retail development, which is essentially an extension of the existing Mt. Eliza 'strip' shopping centre, will generate an additional parking demand of no more than 4.0 spaces per 100sq m of retail floor area. For the proposed floor area of 900.9sq m, this equates to an additional parking demand at peak times of 36 spaces. This exceeds the effective parking supply of 35 spaces provided by the proposed development.
The availability of vacant parking spaces in close proximity of the site, as quantified in Section 1.5 of this report, demonstrates that the estimated parking 'shortfall' of one (1) space is readily accommodated within existing parking areas. Indeed, the surveys showed that a minimum of 176 parking spaces available for public use were vacant at all times during the busy shopping periods at Mt. Eliza on Friday afternoon and Saturday morning. Consequently, if it assumed that the time of the peak parking demand for the proposed development coincides with that of the peak parking demand for the Mt. Eliza Shopping centre as a whole, the number of vacant spaces will be reduced from 176 spaces to 175 spaces at that time.
Clearly, the parking demand expected to be generated by the proposed development can be accommodated either within the spaces provided as part of the development or within existing public parking spaces, without discernible impact on the availability of parking in the vicinity of the site.
34. In relation to the adequacy of the proposed parking provision, Mr Grogan said:
If it is assumed that parking in the on-site car park is time limited to 2 hours or less, to discourage all day parking, and that the average duration of stay within the car park is 40 minutes, approximately 33 vehicle movements per hour will be made both to and from the site at peak times. This level of traffic activity is significantly lower than that which was, presumably, generated by the previous use of the site as a petrol filling station.
The proposed development includes the relocation of the left turn 'slip lane' closer to the intersection of Mt.Eliza Way and Canadian Bay Road and the closure of a gap in the median of Mt. Eliza Way opposite the site. These measures will help to reduce the speed with which vehicles can use the left turn lane, reduce the number of vehicle conflict points in Mt. Eliza Way and contribute to an improved road safety environment in the vicinity of the site.
(a) At peak times, the proposed development may generate a parking demand that exceeds the proposed effective parking provision by up to 1 space. This shortfall can be accommodated within existing parking areas which are available for public use and located in close proximity of the site, without discernible impact on the availability of parking for patrons of existing facilities within the Mt. Eliza Shopping Centre.
(b) Traffic movements generated by the proposed development can be
accommodated on the local road network without impact on existing motorists in the area.
(c) Proposed road geometry changes including the relocation of the 'slip lane' for left turn movements from Canadian Bay Road to Mt. Eliza Way, and the closure of the median break in Mt. Eliza Way at the frontage of the site, will reduce the number of vehicle conflict points and contribute to a general improvement in the safety of the local road environment.
(d) The proposed development will improve the pedestrian environment in the vicinity of the site and contribute positively to the integration of the areas of the Mt. Eliza Shopping Centre on either side of Canadian Bay Road.
36. The Tribunal has adopted the evidence provided by Mr Grogan in relation to traffic and car parking issues.
37. The Tribunal has found that the proposal will result in the Mount Eliza Shopping Centre being enhanced by the development of an attractive group of 9 modern shops oriented to Mount Eliza Way. The glazed clock tower over the pedestrian accessway from the car park will provide a point of visual interest referencing the tower on the Mount Eliza Centre to the south.
38. The proposed landscaping in the form of the paved pedestrian plaza at the northern end of the site and on-street tree planting in Canadian Bay Road coupled with the on-site landscaping along the same frontage will further enhance the streetscape.
39. I have adopted the evidence of Ms Peterson in relation to the contribution of the proposal to streetscape character and in regard to compliance with both State and Local Planning Policies.
40. I also note that the Planning Officer's report recommended that the proposal be approved.
41. In summary, I have found that the proposed development at 87 Mount Eliza Way will make a positive contribution to the shopping centre in accordance with State and local planning policies. In view of the expert evidence I regard it as unlikely that any of the concerns raised by objectors will be realised.
42. Accordingly, the Tribunal will direct that a permit issue.
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Mount Eliza Retail Investments PL
Mornington Penn SC [2001] VCAT 263
The responsible authority's refusal was set aside. A permit was directed to be issued for nine single-storey shops, car parking, a clock tower, road-pavement alterations and associated works, including a dispensation from the standard car-parking provision, subject to the listed conditions.