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[2001] VCAT 2326
respondent. The Council's decision was varied and a permit was directed to issue for a reduction of the scheme's off-street parking requirements and use of the ground floor as a restaurant and place of...
The Tribunal allowed the proposed restaurant expansion, subject to conditions, after finding that the likely extra weekday lunchtime parking demand was lower than the scheme's standard ratio suggested and that enough public parking was available nearby. It treated the expanded café as a restaurant and the library and meeting rooms as place-of-assembly uses. It did not require restaurant patrons to use the site's security-controlled rear car park, but required meeting-room parking arrangements to make that car park available for Sunday daytime meetings while preserving security controls.
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In Penhalluriack & Ors v Glen Eira CC [2001] VCAT 2326, the Victorian Civil and Administrative Tribunal reviewed Glen Eira City Council's decision to grant a planning permit for 306 Hawthorn Road, Caulfield. The permit applicants, S. & E. Goldman, operated Sheli's Café and Restaurant within the Beth Weizmann Community Centre. The proposal was to expand the existing 20-seat eating establishment to 70 seats, enlarge its floor area from 42 to 110 square metres, and reduce the adjacent Makor Library's floor area by 62 square metres [2], [22].
No linked legislation citations have been extracted yet.
The property was in a Business 2 Zone. Its three-storey building contained offices above the ground-floor meeting rooms, library and restaurant. A 36-space car park sat behind the building, accessible through a long, narrow driveway and a security boom gate. Thirty spaces were leased to office tenants, with other spaces allocated to the library, security and tradespeople; only three were spare [4], [6]–[9]. Security was a significant site consideration. The Tribunal recorded evidence that a government authority had classified the community centre as a high-risk Jewish/Israeli building outside the Israeli Embassy and consular offices [7].
Frank Penhalluriack and James Goode, among others, sought review. Penhalluriack operated hardware, building-supply and garden-centre businesses opposite the site. His businesses relied substantially on public parking, including a Council car park at Hawthorn Road and Pyne Street. Goode operated an adjoining nursing home [3], [5]. Their concerns included parking availability, traffic, effects on local businesses and residents, and the operation of the security gate [18], [46].
The Tribunal varied the Council's decision and directed a permit to issue for the restaurant and place-of-assembly uses, with a reduction in the scheme's parking requirements. Conditions limited hours and patron numbers, prohibited alcohol, restricted meeting-room functions, and addressed parking, noise and amenity. For meetings, the conditions required the boom gate to be kept up or an attendant to be present, and a sign advising of secure on-site visitor parking [Order, conditions 3–17]. The Tribunal reserved costs relating to the directions hearing, allowing 20 business days for an application [Order B], [77].
The first analytical step was to identify the relevant uses and permissions. The Tribunal explained that simply modifying the existing permit was not an appropriate route to the requested expansion. The earlier permit limited the café to 20 seats, and the existing-use provisions required compliance with conditions or restrictions attached to the use [23]–[24]. As the proposed internal alterations did not enlarge the building's floor area, the Tribunal found no separate buildings-and-works permit was required [25], [38].
The Tribunal classified the expanded eating establishment as a restaurant. The current scheme defined restaurant by reference to preparing and selling food and drink for consumption on the premises. The proposed 70-seat arrangement, with a kitchen and toilet facilities, fitted that classification. The evidence did not show substantial provision for takeaway service, such as a dedicated takeaway counter or drive-through. The Tribunal therefore regarded takeaway as ancillary, not a separate primary use [33]–[37]. It also classified the library and meeting rooms as a place of assembly [26], [38].
That classification mattered because Clause 52.06 specified parking ratios for both restaurants and places of assembly. Applying the restaurant ratio of 0.6 spaces per seat to 70 seats produced a nominal requirement of 42 spaces [28], [38], [40]. For the meeting rooms, a 120-person limit and a ratio of 0.3 spaces per seat produced a 36-space requirement, matching the number of spaces in the rear car park [41], [73].
The Tribunal did not treat the standard ratio as conclusive of actual demand. Clause 52.06-1 required consideration of matters including parking availability, public transport, shared parking, existing parking demand, local traffic management, amenity and empirical assessments [44]–[45]. Parking surveys showed vacancies in nearby public parking. Although the consultants' counts differed, the evidence supported the conclusion that spaces were available within a reasonable walking distance [53]–[55]. The Tribunal considered the competing evidence about longer stays, short-turnover retail parking, and a specialist kosher restaurant's potential catchment [56]–[63].
The key demand finding was that the expanded restaurant was likely to generate an additional six to ten spaces during weekday lunch, substantially fewer than the nominal ratio implied [64]. The Tribunal also considered that the existing 20-seat restaurant was a lawful use and that the application concerned a change to that use, not a wholly new demand baseline [66]. Given the available nearby public parking, it found no demonstrated basis to conclude that the additional demand would materially affect local traffic management or pedestrian amenity [64]–[66].
Security then shaped the conditions. The Tribunal accepted that requiring the centre to terminate existing leases or permit unrestricted access to the rear car park would undermine security arrangements [67]–[69]. Restaurant use was separate from the rest of the building, and the Tribunal concluded it was inappropriate to require restaurant patrons to use the secure car park when public parking was available elsewhere [69]. Sunday meetings presented a different situation: the Tribunal considered on-site parking should be available and advertised, with an attendant managing the gate, but did not require the gate to remain open [72]–[74].
The judgment describes a transition from the former planning scheme to the newer Victorian Planning Provisions framework. Under the former scheme, café and restaurant were separately defined, with differences including treatment of meals, refreshments, alcohol and entertainment. Under the new format scheme, the Tribunal found that the restaurant definition was broad enough to encompass the former café concept [30], [33]–[35]. The Tribunal's classification of Sheli's as a restaurant resolved which parking ratio applied.
The decision also explains why a proposal's activities do not alone determine its land-use category. The Tribunal quoted principles from A. Gasgone and Maria Vella v City of Whittlesea concerning identification of the purpose of a proposed use, the possibility of multiple distinct purposes, and whether a lesser activity is ancillary to a dominant use [32]. It applied that approach to takeaway sales and the on-premises restaurant activity [36]–[37].
On parking, the judgment applies Clause 52.06-1's stated decision guidelines to the evidence before it. The Tribunal considered both the scheme's parking ratios and empirical information about likely demand and available parking. The decision therefore illustrates a case-specific application of those guidelines, not a general replacement of the stated ratios. The judgment does not purport to change Clause 52.06 or establish a universal parking rate for restaurants.
The permit also shows how conditions addressed the practical tension between parking access and security. Meeting-room patrons were directed towards secure on-site parking, but the gate could still be managed by an attendant. Restaurant patrons were not required to use the rear car park. Those outcomes followed from the distinct use patterns and security evidence in this case [69], [72]–[74].
At [32], the Tribunal quoted the proposition that identifying a proposed use may reveal “more than one separate and distinct purpose”. In plain English, a site may have multiple planning uses even if activities occur within one business or building. The question is whether the activities serve distinct purposes and whether one is merely incidental to another.
At [37], the Tribunal found that the 70-seat layout and lack of substantial takeaway facilities made restaurant use the principal classification, with takeaway ancillary. This meant that the restaurant parking ratio applied. The conclusion was based on the planned facilities and evidence, rather than an unsupported assertion about the existing percentage of takeaway trade.
At [64], the Tribunal concluded that weekday lunchtime demand was “significantly less” than the scheme's 0.6 spaces per seat figure. In plain English, the Tribunal used evidence about real likely demand, not only the mathematical result of applying the standard ratio. It estimated the additional demand at six to ten spaces and compared that with vacancies in the locality.
At [69], it found that on-site parking for restaurant patrons was unnecessary and inappropriate. The reasoning joined two findings: public parking was available nearby, and opening the centre's secure car park to restaurant customers would conflict with security arrangements.
At [72], the Tribunal treated Sunday daytime meetings differently. It considered it logical to make the rear car park available for those meetings, with signs and an attendant, but declined to require the boom gate to remain open. The distinction reflected the meeting patrons' use of the centre and the presence of security personnel.
The decision is most relevant as an example where a planning authority or tribunal must classify a proposed use before applying a parking requirement. Here, expanding a small café into a 70-seat premises raised whether the new format scheme treated it as a restaurant, convenience restaurant or some combination of food-and-drink uses [28]–[38]. The analysis may be relevant where takeaway activity is asserted to be either ancillary or a separate use, although the result here turned on the particular floor plan and absence of substantial takeaway infrastructure.
The judgment is also relevant where a parking reduction request is supported by empirical surveys and the standard parking rate appears to overstate likely demand. The Tribunal considered survey counts, expert evidence, duration of parking stays, local business activity and the expected catchment [53]–[64]. Its finding was tied to this site and evidence; it does not establish that a six-to-ten-space estimate applies to other restaurants.
A further fact pattern involves a site where private or on-site parking is subject to security controls, while public parking is available nearby. The Tribunal balanced those matters rather than assuming that every shortfall against a scheme ratio had to be accommodated on the subject land [67]–[69]. The separate treatment of restaurant patrons and meeting attendees also shows the importance of differing hours, patterns of attendance and available site supervision [70]–[75].
Finally, the decision concerns an existing permitted use being materially expanded. The Tribunal considered the existing lawful 20-seat restaurant and the parking arrangements already authorised, while focusing on the additional effects of the proposed change [39], [66]. That context is important: the Tribunal did not assess the proposal as though all existing uses and parking circumstances were absent.
The supplied judgment contains no discussion of later cases applying, distinguishing, approving or questioning this decision. No later judicial treatment can therefore be described on the basis of the material provided.
Within the judgment itself, the Tribunal relied on A. Gasgone and Maria Vella v City of Whittlesea (1993) 11 AATR 175 for principles on characterising proposed uses and ancillary activities [32]. The Tribunal applied those principles to the restaurant and takeaway question [36]–[37]. The supplied text does not identify other precedents as having been considered.
The judgment does not determine how later versions of the Glen Eira Planning Scheme or subsequent changes to the planning framework might affect a similar application. Its analysis concerns the scheme and permit conditions before the Tribunal in 2001.
The Tribunal found there was sufficient public parking for the estimated weekday lunchtime increase, but the decision does not provide a general threshold for what counts as adequate availability, reasonable walking distance or acceptable parking turnover. Those conclusions depended on the evidence and locality in this case [53]–[65].
The Tribunal had no persuasive survey evidence about Sunday daytime public parking levels. It considered it reasonable, on the evidence available, to assume more parking would be available on Sunday than on weekdays [75]. The judgment therefore does not establish a measured Sunday parking-demand finding.
The decision also leaves the practical effectiveness of signs and attendant-managed access to the permit's operation. It states what conditions were imposed, but does not record later monitoring or enforcement outcomes. Nor does it report whether the reserved costs issue was ultimately pursued or resolved.
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Planning List; Glen Eira Planning Scheme; Business 2 Zone; Use of Restaurant and Place of Assembly (Library and Meeting Room/s); Clause 52.06 - Car Parking; Availability of Public Car Parking; Disincentive to Use On-site Parking Due to Security Boom Gate
Applicants Frank Penhalluriack, James Goode and others
Respondents Glen Eira City Council and S. & E. Goldman
Dates of Hearing 19, 20 and 31 July, and 25 and 26 September 2001
Medium Neutral Citation [2001] VCAT 2326
A. The decision of the responsible authority is varied. A permit is granted and directed to be issued in relation to planning permit application No. GE/PP-11789 for the land at 306 Hawthorn Road, Caulfield.
A reduction of the Scheme's requirements for off-street parking and the use of the ground floor of the existing building for the purpose of a restaurant and a place of assembly, (meeting rooms and library) in accordance with the endorsed plans.
1. The layout of the site and the size, design and location of the buildings and works hereby permitted, including the car park with 36 car spaces, must accord with the endorsed plan(s) and must not be altered or modified (whether or not in order to comply with any statue, statutory rule or for any other reason) without the consent of the Responsible Authority.
2. No new buildings or works may be erected and no existing buildings may be enlarged, rebuilt or extended without the consent of the Responsible Authority.
3. Unless otherwise permitted in writing by the Responsible Authority, and for a specific occasion only, the uses must only operate between the following hours:
b) library - 9.00 a.m. to 5.00 p.m. Monday to Friday and until 9.00 p.m. Wednesdays
and all persons must be off the premises and car park area by 11.00 p.m. except for staff who must leave by 11.30 p.m.
4. The maximum number of seats available to patrons permitted in the restaurant at any one time is as follows:
a) a maximum of 45 seats between the hours of 10.00 p.m. and 6.00 p.m. Monday to Friday; and
b) a maximum of 70 seats at all other times within the hours of operation approved by this permit.
5. No alcohol shall be served or consumed in the restaurant.
6. The restaurant must maintain a window display to the satisfaction of the Responsible Authority.
7. One car space must be set aside in the rear car park for use by library staff and three spaces must be set aside for use by restaurant staff. In the event of these spaces not being needed on any day for staff, they may be made available for use by visitors to the centre.
8. Unless with the prior consent of the Responsible Authority, and for a specific occasion only, no more than 120 people are permitted to occupy the meeting room/s at any one time.
9. Except with the prior written consent of the Responsible Authority the meeting room/s shall not be used between the hours of 9.00 a.m. to 5.00 p.m. Monday to Friday except by school groups arriving by foot or bus.
10. The meeting room/s must not be hired out or allowed to be used for private functions such as discos, wedding receptions or 21st birthdays.
11. When the meeting room/s are in use (other than by school children arriving by foot or by bus) the boom gate must be kept up or a parking attendant must be present at the gate and a sign to the satisfaction of the Responsible Authority must be placed at the front entrance advising about the existence of secure, on-site visitor parking for meetings patrons and encouraging use of those spaces.
12. The permit holders must use their best endeavours to ensure that patron car parking does not occur in residential streets or cause a nuisance to residents. To this end, the permit holder must outline parking availability on all invitations or pamphlets associated with the meeting room/s and library and encourage shared use of cars.
13. Off street parking must be provided and managed to the satisfaction of the Responsible Authority.
14. All external lighting to the rear car park shall be shielded to prevent loss of amenity to adjoining properties.
15. Noise from the use hereby permitted shall not exceed the standards prescribed in State Environment Protection Policy N-1 and N-2.
16. Noise emitted from the building hereby permitted must not exceed the background or ambient noise level plus 5dB(A) when measured at any residential property in accordance with Australian Standard 1055.
17. A sign must be clearly displayed at the entrance to the building requesting persons to enter and exit the site quietly due to the existence of the adjacent nursing home.
18. Unless the uses hereby permitted are commenced within two years of the date of this permit or any extension of such times granted pursuant to the provisions of the Planning and Environment Act, this permit shall lapse. The Responsible Authority may approve an extension of time if written request is made within three months of the expiry date.
B. The question of costs in relation to the directions hearing of 22 May 2001 is reserved on the basis that there will be no order for costs unless an application for costs is made within 20 business days from the date of this order.
For the applicant for review: Mr Jack Hammond QC with Mr Graeme Peake of counsel, instructed on the first three days by Julie Anne Laird, lawyer and on the final two days by Peter Arnheim, solicitor. Mr Hammond was not in attendance on the final two days.
For the responsible authority: Ms Adrianne Kellock town planning consultant with The Planning Group Vic Pty Ltd with, for part of the first day, Mr Tim Power of Freehills, lawyers.
For the respondent permit applicants: Mr Paul Chiappi of Arnold Bloch Leibler lawyers.
1. This was an application under Section 82 of the Planning and Environment Act 1987 (P & E Act) to review a decision by Glen Eira City Council to grant a permit (in Permit Application No. GE/PP-11789/1999) for the land at 306 Hawthorn Road, Caulfield.
2. In essence the permit application seeks approval for an existing 20 seat, kosher, eating establishment to be expanded to from 20 to 70 seats. This establishment, known as Shelis Café and Restaurant, occupies part of the ground floor of the Beth Weizmann Community Centre. Its expansion would result in a reduction to the floor area of a library that also occupies part of the ground floor of this building.
3. The central issue in this application for review concerns the impact that the expanded eating establishment might have on the availability of public car parking in the nearby area, which forms part of the fringe of the Glenhuntly Shopping Centre. One of the applicants for review, Mr Frank Penhalluriack, operates a substantial building supply, hardware and garden centre business opposite the subject land in Hawthorn Road. Except for 12 on-site spaces, Mr Penhalluriack's business relies entirely on public car parking, including a 48 space Council car park located on the north-east corner of Hawthorn Road and Pyne Street. The main entry to Mr Penhalluriack's hardware store opens onto this car park. The car park was constructed in the 1980s under a separate rate scheme.
4. The Beth Weizmann Community Centre is located on the west side of Hawthorn Road, on the northern fringe of the Glenhuntly Shopping Centre. The centre comprises a three storey building built partly to the front boundary but with its main offices' entry set back approximately 12.5m from the frontage. There is an open lot, 36 space car park located to the rear of the building. The subject land is quite deep, being 97.4m long, with the result that the car spaces closest to the main entry are, nevertheless, located some 63m back from Hawthorn Road.
5. The subject land is zoned Business 2 under the Glen Eira Planning Scheme. This is a zone where "offices and associated commercial uses" are encouraged. It differs, for example, from the more common shopping centre zoning, the Business 1 Zone, where the purpose is "to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses". This particular Business 2 Zone occupies a limited number of blocks on the west side of Hawthorn Road, north of Murray Street. South of Murray Street, the west side of Hawthorn Road, in common with Glenhuntly Road, is zoned Business 1. By contrast the east side of Hawthorn Road is zoned Residential 1. This zoning notwithstanding, southwards of Briggs Street a commercial character is achieved due to the presence of the Penhalluriack premises, the car park on the corner of Pyne Street and a 7-Eleven store on the south-east corner of Pyne Street and Hawthorn Road. On the west side of Hawthorn Road and abutting the subject land to the north there is an established nursing home run by another of the applicants for review, Mr Goode.
6. The two upper floors of the Beth Weizmann Community Centre are used for the purposes of offices and, as advised by Mr Chiappi, are tenanted by 15 Jewish community or welfare organisations. Mr Chiappi also confirmed that 30 of the 36 spaces in the rear car park are presently being leased to the various office tenants of the building. A further space is leased to the library, one is set aside for a security guard and another for tradesmen. This leaves three spaces spare.
7. Access to the car park is via a narrow, 52m long driveway. This driveway is two-way for approximately the first 7m it then reduces to a width of 2.9m. Within the two-way section there is an intercom and magnetic pass card activated, security boom gate. Mr Chiappi advised that the centre "provides a full-time security guard who monitors use of the car park and the entrance to the building during business hours and a front door attendant monitors use of the car park and entrance to the building at other times when the building is used for commercial purposes ". In a briefing paper to the Glen Eira Council, dated 15 September 1997, from Head of Security for the State Zionist Council of Victoria, it was stated:
"In a recent security report by a Government authority, it [the Beth Weizmann Community Centre] was classed as the highest risk Jewish/Israeli building outside the Israeli Embassy and consular offices."
8. The ground floor of the Beth Weizmann community centre is occupied by two meeting rooms - one larger than the other - and both capable of being combined to form one space with an area of approximately 260sq m. These rooms are used by various Jewish organisations, (including those represented within the offices above) for public meetings, seminars, lectures, social functions and the like.
9. To the front of the meeting rooms there is the Makor Library which once again caters to the Jewish community. It is open to the public and local schools as well as being available to occupants of the building.
10. To the front of the library and with large windows opening to Hawthorn Road, is Sheli's Café and Restaurant. As already noted this is a 20 seat, kosher eating establishment. It is unlicensed and at the present time has only a very limited food preparation area. Light meals and refreshments may be consumed on-site. They may also be purchased for off-premises consumption.
11. Use of the meeting rooms, library and café was authorised by Permit No. CAUL 6161, issued on 7 July 1992. The offices were constructed in about 1990, following the grant of a permit (CAUL 4394), issued on 27 November 1987. The land had been previously occupied by a dairy. As noted by Ms Kellock at page 9 of her submission, Permit No. CAUL 4394 contains 23 conditions - of relevance to the subject proceeding are the following:
"* Condition 2 (requiring staff to park on-site)
* Condition 3 (signs to be provided indicating provision of on-site visitor car parking)
* Condition 20 (provision of a security gate to prevent after hours access to rear car park)
* Condition 21 (35 car spaces to be provided on-site)"
12. Ms Kellock also confirmed that the plans endorsed to form part of that permit showed the inclusion of a boom gate at the driveway entry. This boom gate has some significance in this application.
13. Permit No. CAUL 6161, which issued following the Beth Weizmann Community Centre's decision to occupy the then completed but still vacant office building, included some 23 conditions. Again as précised by Ms Kellock, these conditions provide for the following:
"* Condition 4 (requiring staff to park on-site)
* Condition 5 (signs to be provided indicating provision of on-site visitor car parking)
* Condition 13 (meeting hall not to be hired out for private functions)
* Condition 14 (when meeting hall is in use the boom gate shall be kept up and a sign placed at the front entrance encouraging on-site visitor parking)
* Condition 15 (meeting hall limit of 120 in lieu of 200 requested)
* Condition 16 (signage to be erected at entrance encouraging use of Council car park when evening/weekend meetings being held)
* Condition 17 (meeting hall shall not be used during normal business hours except by school groups)
* Condition 18 (best endeavours to ensure patron car parking is not detrimental to surrounding residents)
* Condition 20 (sign to be provided at entrance requesting visitors to access site quietly due to neighbouring nursing home)"
14. It is pursuant to Permit CAUL 6161 that the ground floor uses of these premises currently operate. It should be noted that there were objections to Permit Application CAUL 6161, including from Mr Penhalluriack and from the owner of the adjoining nursing home, Mr Goode. Neither of these persons lodged an appeal in relation to the decision to grant a permit.
15. Throughout the period 1993 to 1996 and prior to development of his garden centre on the south-east corner of Hawthorn Road and Briggs Street, Mr Penhalluriack engaged in quite regular correspondence with both the Responsible Authority and the Beth Weizmann Community Centre, raising concerns about the availability of public car parking in the area and suggesting that the security boom gate was a disincentive for visitors to the centre to use the rear car park. Whilst enquiries and inspections were conducted by council officers, no enforcement action was ever deemed necessary. Neither was an enforcement order initiated by Mr Penhalluriack.
16. Following lodgement of the subject application in October 1999 and its formal notification process, which was not completed until August 2000, Mr Penhalluriack recommenced a regular line of correspondence with both the Council and the Beth Weizmann Centre. Starting with his objection to the grant of a permit, this correspondence focussed again on the issue of persons associated with the centre using publicly available car parking spaces when, from his inspection of the subject land, spaces could regularly be seen to be vacant within the centre's rear car park. Suggestions were made also by Mr Penhalluriack that breaches of the conditions of permit CAUL 6161 were taking place. These were investigated by Council officers. Certain breaches were identified and warnings given. Subsequently the officers were generally satisfied that the premises were being operated in accordance with the permit. A Planning Infringement Notice was however issued in the week prior to the commencement of the hearing of this application for review. The breach was in relation to more than 20 seats being occupied in the café.
17. The subject application for permit was considered by the Responsible Authority at its meeting on 18 December 2001. In accordance with the recommendations of its Planning Officer, the Responsible Authority resolved to grant a permit subject to conditions and a Notice of Determination to this effect issued on 27 December 2000. The permit conditions of the Notice of Decision are virtually identical to those applying to Permit No. CAUL 6161. The relevant exceptions are that patron numbers, between 12.00 p.m. and 2.00 p.m. Monday to Friday, are limited to 45 seats with a maximum of 70 seats at any other time permit. The permitted hours of operation, both proposed and existing, are 10.00 a.m. to 10.00 p.m. daily for the eating establishment, 9.00 a.m. to 5.00 p.m. Monday to Friday and until 9.00 p.m. Wednesdays for the library and 9.00 a.m. to 11.00 p.m. daily for the meeting hall. In the case of the meeting hall, use, "during normal business hours" other than by school groups arriving by foot or by bus, is not allowed except with the prior written consent of the Responsible Authority. The maximum number of persons to be accommodated in the meeting hall remains at 120 unless with the prior consent of the Responsible Authority.
18. The subject application for review was lodged with the Tribunal on 16th January 2001. The stated grounds for review were as follows:
"1. Proposed use is an over-development of the building;
3. Inadequate controls in respect of off-street parking;
4. Increased use of the building will put undue pressure on already inadequate on-street traffic and parking in the vicinity;
5. Council was not properly informed of all of the facts when it made the decision to grant the permit;
* To the safety and security of persons, institutions and property in the vicinity of the building, and including the building and its occupants.
* Loss of parking for local residents and their visitors, and for local businesses.
* Increased traffic and parking in Hawthorn Road and the adjacent residential streets.
* A failure to comply with the existing permit conditions in relation to the operation of the building, and specifically to the number of visitors, the time of their visits, the provision of off-street parking for both staff and visitors, and the hours of operation.
* The increase in activity at the restaurant, including deliveries and patronage from 10.00 a.m. until late at night."
19. The application for review was set down for hearing on 23rd May 2001. However on 22nd May 2001 an urgent directions hearing was set at the request of the permit applicant's planning consultant. The purpose of the directions hearing was to consider whether the reports of two expert witnesses to be called by the applicants for review and which contrary to VCAT Practice Note No. 2, were not going to be able to be circulated prior to the hearing, should be rejected by the Tribunal. Mr Peake, for the applicants for review, submitted that the delay in the supply of the expert reports was due to the applicants for review being unable to obtain relevant material, including material from the Responsible Authority.
20. The Tribunal adjourned the hearing, due to commence the following day. The matter was re-listed for a two rather than one day hearing commencing on 19 July and the Tribunal reserved the question of costs in relation to both the directions hearing and the adjourned hearing day.
21. There has been some confusion throughout the processing of this application and continuing through to the review stage, as to the precise permissions which are required in relation to the changes sought to be made to the use of the ground floor of this building.
22. The application for permit is simply expressed as "proposed alteration to coffee shop" and is made by the operators of Sheli's Café and Restaurant, Mr and Mrs Goldman. The plans accompanying the application show the "coffee shop" occupying part of the floor area presently occupied by the Makor Library, effectively increasing the floor area of the coffee shop by 62sq m, (from 42sq m to 110sq m) and its seating provision from 20 to 70 seats. Reciprocally, the area of the library is decreased by 62sq m from 196.4sq m to 134.4sq m. The expanded floor area of the coffee shop includes an additional toilet and a kitchen. The latter would have dimensions of 3.5m x 5.5m, giving an area of 19.25sq m. Whilst the word "proposed alterations to coffee shop" clearly explain the permit applicants intentions, the actual permissions required under the Planning Scheme are more complicated.
23. Condition No. 1 of Permit CAUL 6161 makes provision for the endorsed plans accompanying the application to be modified with the consent of the Responsible Authority. However, it is not open to the Responsible Authority to make such an amendment to achieve the outcome sought in this instance. This is because an effect of such modification would be to change the number of seats in the café. Condition 12 of Permit CAUL 6161 limits the number of seats to 20. The existing use provisions at Clause 63 of the Scheme allow a lawfully established use that pre-dates the Planning Scheme to continue to operate past the approval date of the new Planning Scheme (the Glen Eira new format scheme came into effect on 5th of August 1999) provided, among other things, that "any condition or restriction to which the use was subject continues to be met ...". The limitation on the number of seats would preclude the continued operation of this café under the existing use provisions of the scheme.
24. A minor amendment of the permit, using the provisions of Section 73 also seems highly improbable given that such an amendment can only be made if the Responsible Authority can be satisfied that the change would not cause an increase in detriment to any person. The avenue of an amendment of the permit pursuant to Section 87 of the Act, although open to be made, may also present difficulties. In all of these circumstances and, as noted by Ms Kellock, the most appropriate mechanism to achieve the permit applicant's desired outcome is to obtain a fresh permit under the provision of the new format scheme, namely a permit under Clause 31.01-2 to use land in the Business 2 Zone for a Section 2 use or uses.
25. As Ms Kellock also quite rightly pointed out, given that the alterations proposed to give effect to the change in use are internal only and do not result in an increase in the floor area of this building, no permit is required under the Business 2 Zone provisions for the construction of any buildings or works - Clause 62.02 makes clear this exemption.
26. A library and a public meeting room would both fall within the Planning Scheme's definition of place of assembly, namely "land where people congregate for religious or cultural activities, entertainment or meetings". Library is specifically listed as being included in the "nest" of place of assembly sub-uses. Public meeting room is not, but I find it logically located in place of assembly given the reference in that definition to meetings.
27. The Planning Scheme's land use term "food and drink premises" sits within the very wide group of land use terms headed "retail premises". Food and drink premises is itself a very wide land use term. It includes convenience restaurant, hotel, restaurant, take-away food premises and tavern.
28. In order to decide whether or to what extent a permit is required under the car parking provisions at Clause 52.06 of the Scheme, it is necessary to be precise about the appropriate land use term to be applied to Sheli's if expanded to 70 seats. If the use falls within the term "restaurant", a permit is required to reduce or waive the number of car spaces required by the table to that clause which, for a restaurant, is 0.6 spaces to each seat available to the public. For any other type of food and drink premises - other than hotel or tavern - there is no stated ratio for parking in the table to Clause 52.06. In such circumstances, the clause provides as follows:
"Where a use is not specified in the table at Clause 52.06-5, an adequate number of car spaces must be provided to the satisfaction of the Responsible Authority."
29. As it turns out I have come to the conclusion that the most appropriate categorisation of Sheli's, as expanded to 70 seats, is as a restaurant. This has made it unnecessary for me to consider the submissions provided at my direction in respect of the Tribunal's jurisdiction to determine whether or not an adequate number of car spaces is provided in the context of the proposed uses being unspecified in the table to Clause 52.06.
30. At the time Permit CAUL 6161 was issued, the former planning scheme included a specific definition for the use "café". At that time the principal difference between the definitions of café and restaurant was that in the case of a restaurant alcohol could be consumed and provision could be made for live entertainment by more than one person and for dancing. In both cases "meals" were to be served but in the case of a café reference was made to "refreshments" as well as meals being served.
31. In the report by SJB Planning, which accompanied Permit Application CAUL 6161, it was stated that the then proposed coffee shop "will provide take-away as well". This fact was acknowledged also in the officer's report to Council in relation to that application. Although it would have been open for the Council to approve both a café and a take-away food premises, the permit which issued in relation to the floor area occupied by Sheli's was for café only. I think it open to find that this was based on the assumption that the take-away component would be either trivial or at most ancillary to the primary or dominant purpose of café.
32. Clause 12 of the former planning scheme, now repeated at Clause 64 of the Victoria Planning Provisions (VPPS), provided and provides that if land is used for more than one use and one is not ancillary to the other, each use must comply with the scheme. As noted by Mr Hammond QC, the question of how to establish the real and substantial purpose of a proposed use and when some other activity conducted on the land might be regarded as either trivial or ancillary, was considered by the Supreme Court in A. Gasgone and Maria Vella v City of Whittlesea (1993) 11 AATR 175. At pages 89 to 90 Ashley J. sets out the following very useful principles to be applied when considering whether a use is ancillary or is a separate use in its own right:
"With respect to permit applications, the following principles, in my opinion, emerge from the cases to which I have been referred:
(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.
(2) Whilst that intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.
(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme, at least that is so where there is provision for innominate uses in the scheme.
(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.
(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is "Yes", and the dominant purpose is available as a right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is "No", each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.
(6) In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase "real and substantial" qualifying "use" will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between "purpose of use" and "use" in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of "innominate use". It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the "real and substantial" purpose of use test will be applicable in actual situations having the perceived potential to fall within paragraph (4) or (5) above."
33. With the advent of the new format planning scheme there is no longer a definition for "café". Restaurant is now defined as follows:
"Land used to prepare and sell food and drink, for consumption on the premises. It may include:
b) the supply of liquor other than in association with the serving of meals, provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time.
34. I am persuaded that what is now defined as restaurant can be said to encompass both restaurant and café as defined under the former Planning Scheme provisions. The distinction for example between meals and refreshments is no longer made and neither is there any restriction about alcohol. The words used are simply food and drink. I am not persuaded to accept Ms Kellock's suggestion of referring to this 70 seat version of Sheli's as simply a food and drink premises. Clearly this is too wide a land use term to cover the proposed use as there is no suggestion that Sheli's would be used for a hotel and tavern as well as a restaurant. Alternative categorisations for Shelis, as expanded to 70 seats, could be as both a restaurant and take-away food premises with the latter not being an ancillary activity. Alternatively, as suggested by Mr Chiappi, the term convenience restaurant may be a possible option. Convenience restaurant is defined as follows:
"Land used to prepare and sell food and drink for immediate consumption, where substantial provision is made for consumption both on and off the premises." (emphasis added)
35. I am persuaded by the views expressed by Mr Robertson, the Town Planner called to give evidence on behalf of the applicants for review, that the reference to "substantial" provision for off-premises consumption rules out Shelis as being a candidate for categorisation as a convenience restaurant. I agree with him also that the provision of 70 seats in an eating establishment with a kitchen and toilet facilities must ,on any measure, be held to fall within the meaning of restaurant, as defined.
36. This then leaves a final question of whether a 70 seat restaurant with some provision for take-away sales can be said to sit largely within the term restaurant, with the take-away component being either trivial or ancillary or whether the fit with restaurant is so awkward as to demand a completely separate categorisation - Mr Chiappi, for example, suggested a categorisation of café. For reasons I have already expressed, I am not persuaded that café is an appropriate use categorisation given the definition of restaurant. In any event it does not overcome the issue of take-away being a component of the use.
37. Relying on instructions from his client and without providing any evidence to prove his claim, Mr Chiappi submitted that at present the take-away component of this existing kosher eating establishment is between 20 and 30% of trade. This was not supported by Mr Penhalluriack's evidence, based on his observations when dining there on three occasions, that the take-away function was less than 10% of transactions. Both Mr Penhalluriack's observations and Mr Chiappi's unsubstantiated assertions have been of little assistance. In any case, both relate to the current use of the premises when clearly the proposed use represents a substantial change. Twenty to thirty percent of existing custom in a 20 seat operation becomes less of a proportion when factored against a 70 seat operation. I prefer in any case to adopt the view expressed by Mr Robertson that a premises set up with tables and chairs for 70 persons is clearly a restaurant. Given also the fact that no "substantial provision" is to be made for take-away services - for example a take-away counter or drive through facility - then, set against the provision to be made for on-premises consumption, the take-away element can at best be regarded as ancillary. In any event, if I were to find that the take-away aspect was a real and substantial purpose in its own right, this would not cause the restaurant aspect to go away. As such, the requirement for a permit to reduce the Scheme's requirements for car parking for a restaurant would be invoked in any event.
38. It follows from all that I have said above that firstly, there is no requirement for any permit to construct buildings and works. This means that the reference to "development" in the Notice of Decision to Grant a Permit is unnecessary. Secondly, the appropriate categorisation of the proposed use of the ground floor of this building is as a place of assembly (library and meeting room/s) and a restaurant. Finally, as both place of assembly and restaurant are land use terms that are listed in the table to Clause 52.06 and as only four on-site car spaces (the existing one for the library plus the three unused spaces) are to be made available, a permit is required pursuant to Clause 52.06-1 to reduce the required number of car spaces.
39. It was suggested by Mr Robertson that because these uses had already commenced, the permission pursuant to Clause 52.06-1 should relate only to the extended floor area of Shelis Café and Restaurant. I am not persuaded that this is a correct interpretation of Clause 52.06-1. The permissions sought in this case are to in effect replace the whole of the previous permit (CAUL 6161). This permit included permission to reduce the parking requirement. It follows therefore that as in the previous application, regard must be had in the subject application to the question of parking as a whole. This is not to suggest of course that the fact that the existing uses could lawfully continue under the parking arrangements presently authorised by Permit CAUL 6161, is not a relevant consideration.
40. Applying the Scheme's parking ratio of 0.6 car spaces per seat to a 70 seat restaurant gives a requirement of 42 spaces. The Notice of Decision restricts the number of seats within Shelis, between 12 noon. and 2.00 p.m. Mondays to Fridays, to 45 seats giving a requirement of 27 spaces. This is 15 spaces more than the 12 spaces already waived pursuant to Permit CAUL 6161.
41. In relation to the meeting room, the Notice of Decision limits the number of persons attending a meeting to 120, except with the prior consent of the Council. On this basis the required number of spaces at the stated place of assembly ratio of 0.3 spaces per seat, is 36 spaces.
42. The Notice of Decision limits use of the meeting rooms to outside of "normal business hours" unless by school groups arriving by foot or bus or otherwise with the consent of the Responsible Authority. It also requires, as presently provided for under Permit CAUL 6161, that "when the meeting hall is in use for evening functions, the boom gate shall be kept up and a sign shall be placed at the front entrance encouraging on-site visitor parking, to the satisfaction of the Responsible Authority".
43. The library, although falling within the nest of place of assembly terms and therefore generating a requirement of 0.3 spaces per seat or per square metre of net floor area, whichever is the greater, was not really in contest in this application for review. For the most part the library space is taken up by bookshelves and there was general agreement that the likely generation would be no more than one or two car spaces for the staff. I have noted already that one of the car spaces in the rear car park is leased to the Makor Library.
44. Clause 52.06-1 of the Scheme sets out specific matters to be taken into consideration when deciding about a permit application to reduce or waive the required number of car spaces for uses specified in the table to that clause. These guidelines are in addition to the more general guidelines at Clause 65 and those set out at Clause 32.02-2, in relation to changes of use within the Business 2 Zone.
45. The relevant guidelines for decision at Clause 52.06 are:
Before a requirement for car spaces is reduced or waived, the applicants must satisfy the responsible authority that the reduced provision is justified due to:
* the availability of car parking in the locality.
* the availability of public transport in the locality.
* any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.
* any car parking deficiency or surplus associated with the existing use of the land.
* any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirements.
46. Notwithstanding the seeming complexities of the nature of the permissions sought under this application for permit, the focus of submissions and evidence was entirely limited to the issue of car parking. The principal issue was whether or to what extent it was appropriate to waive a further 15 car spaces during the weekday lunch period and a further 30 spaces on Sunday (being a kosher restaurant there is no issue with Saturday trade). The applicants for review also sought to argue that in future, meetings on Sundays ought to be limited to after 6 p.m. in order to avoid conflict with Sunday trading at Mr Penhalluriack's various outlets. A particular focus of concern on the part of the applicants for review was the existence of the security boom gate. It was strenuously argued that this device acts as a disincentive to visitors associated with the centre or the restaurant, using the on-site car park. Surveys carried out on numerous occasions by Mr Penhalluriack, as demonstrated in the utilisation graphs tendered as Exhibits O13 and O16, demonstrate that throughout the day up to one-third of the 36 spaces in the rear car park can be vacant at any one time.
47. The occupancy rate of this car park during the lunch period, compared with Mr Ashton's surveyed rate of around 90% occupancy in the Pyne Street car park has clearly been a driver in the opposition to the subject application.
48. It was contended on behalf of the applicants for review that the various Penhalluriack enterprises are an important drawcard or "anchor" store for the adjacent commercial area. A reduction in the availability of public car parking could, it was suggested, jeopardise the viability of the hardware, building and garden supply centres, so impacting on the centre as a whole.
49. Referring to the local planning policy for commercial centres at Clause 22.04 of the Scheme, Mr Peake submitted in closing, that to jeopardise the viability of such an anchor store in an existing commercial centre would be contrary to the objectives of that policy which include:
"* To protect existing investment in the retail and commercial infrastructure.
* To ensure that new developments build upon this infrastructure to create a viable retail and commercial sector that has high standards in urban design and is an attractive location for shopping and other business functions.
* To assist centres achieve their potential and to support in creating attractive, functional and viable centres."
50. Having heard the evidence of Mr Penhalluriack I am not at all persuaded that the modest increase in demand for public parking spaces that may be generated by the proposed changes to the ground floor of this building is likely to have any substantial impact on the viability of the shopping centre as a whole or the Penhalluriack enterprises in particular.
51. It is understandable that as a businessman Mr Penhalluriack may be cautious about changes that may have repercussions for his business, particularly given the extent to which his business relies on public car parking spaces. Nevertheless, I do not believe that his evidence bears out his concern. For example, in his letter of 29 August 1994 to Ms Caplan, Executive Director of the State Zionist Council, which operates the Beth Weizmann Centre, Mr Penhalluriack expressed concern "at the number of cars being generated by your building and the various organisations sharing it". He went on to contend that "on occasions parking is now impossible not only in the car park adjoining my shop, but also right along the length of Murray Street, Pyne Street, Briggs Street and for hundreds of yards along Hawthorn Road." He then went on to draw the conclusion that "I will be out of business simply because there is no where for my customers to park".
52. Quite clearly Penhalluriacks have not gone out of business. Under cross-examination Mr Penhalluriack agreed that since 1992 - when the Beth Weizmann Centre and Sheli's first opened - his business had increased "substantially". Indeed the businesses has grown to now include a substantial garden centre, completed in the latter half of the 1990's and for which he found a need for only 12 off-street car spaces. I think it relevant also that Mr Penhalluriack, notwithstanding his publicly expressed concerns about a lack of availability of car spaces, admitted under cross-examination that he uses kerbside parking spaces located as close as possible "say within 50m" of his premises and is aware that his staff - which numbers 50 overall although not all would drive - are not actively discouraged from parking close to their place of employment, including within the longer-term spaces of the Council car park. In my view this is hardly the response of a businessman concerned about the availability of car spaces for his customers.
53. Three well known traffic engineering consultants have carried out parking availability surveys during the course of this application for permit and the subsequent application for review. Mr Jim Higgs of TTM Consulting conducted a survey on Thursday 4 May 2000 and prepared a report which was presented to the Council pursuant to Clause 52.06 of the Planning Scheme, to support the application for a reduction in the Scheme's parking requirement. Of 309 car spaces within five minutes walking distance of the subject land, between Glenhuntly Road to the south and Alfred Street and Sylverly Grove to the north, his survey revealed that there was never less than 155 car spaces available for use at either the kerb or within the Pyne Street car park. Even subtracting the spaces in residential streets, ie. using just Hawthorn Road and the Pyne Street car park which have a combined total of 119 spaces, the survey demonstrated that there were always more than 52 spaces vacant.
54. A survey conducted for the applicants for review on Tuesday 6 March 2001 by Greg Tucker and Associates, counted 100 spaces in the same stretch of Hawthorn Road plus the Pyne Street car park (in other words some 55 spaces less than that counted by Mr Higgs). Nevertheless at 12.30 the peak demand was for 94 car spaces giving six vacant spaces and by 1.00 p.m. the demand had reduced to 85 spaces giving 15 vacant spaces.
55. Mr Ashton, who was called to give evidence on behalf of the applicants for review, also conducted a survey. This took place during the day time on Thursday 21st June 2001. He estimated a total of 110 spaces in the Pyne Street car park plus Hawthorn Road between Glenhuntly Road and Sylverly Grove/Alfred Street. At 12.30 p.m. 77 of these spaces were utilised, leaving 33 vacant. By 1.00 p.m. the number was 78 spaces leaving 32 vacant.
56. Under cross-examination Mr Ashton did not disagree that for the most part there is a surplus of car parking within a short walk of the subject land. He was of the opinion however that the longer term nature of parking stays associated with a restaurant use, compared to the quicker turnaround which he said was generated by retail uses such as Penhalluriack's hardware and building supply outlet, could upset the "dynamic of the current parking patterns to the detriment of local businesses and residents". Put simply it was his view that if spaces were occupied for longer, in association with say a meeting or with a luncheon lasting more than one hour, this could reduce the availability of spaces for short-term use and with it the number of potential short-term, quick sales customers to other businesses. In his opinion a retail centre operates best at occupancy rates of 90%. If there were less than 10% of all spaces available at any one time the centre, in his opinion, would not operate in as desirable a manner.
57. Under cross-examination Mr Ashton agreed that the calculation of a shopping centre's parking occupancy rate depends on the area selected to comprise the pool of available spaces. To count in less well utilised spaces that are further afield means of course that persons may be required to use less convenient spaces which may act as a disincentive if they are relying on a very quick shopping trip. It may also prove a disincentive if the nature of the purchase is for heavy or bulky goods which cannot be carried any distance. In the latter case it is only the Penhalluriack business that might generate heavy and bulky purchases within close proximity to the subject site. I have been satisfied however, from the evidence of Mr Penhalluriack, that if necessary patrons may avail themselves of the drive through loading facility to pick-up such goods. In relation to the disincentive for customers desiring short turnaround trips, I am not persuaded that the proposed uses are necessarily more prone, as Mr Ashton put it, to "hogging car spaces" than many other existing activities within the centre - including Mr Penhalluriack's more recently introduced garden centre. On Mr Penhalluriack's own admission patrons of the garden centre take longer to select items for purchase and as an incentive for patrons to linger longer, while making their selection, the garden centre provides an espresso coffee bar.
58. In any case if Penhalluriacks is indeed to be regarded as the anchor store in this retail area, as argued by Mr Peake, an outcome must be for persons to "linger longer" in the centre as a whole. By logical extension this means that turnaround times will get longer, due to the effect of multiple trips.
59. If the applicants for review want to have it both ways; to maintain short-term parking spaces so Penhalluriacks can enjoy high volume sales and at the same time to suggest that as an anchor store Penhalluriack's premises role is to attract longer-term stays, then my rejection of this application is not necessarily the answer.
60. As I suggested to Mr Ashton, it seems to me that a more sensible solution might be to alter the parking restrictions applicable within the Council's Pyne Street car park. For example the number of four hour spaces, most likely being used by employees, could be reduced in favour of some half hour or less spaces. This could maintain a reserve of quick turnaround spaces to cater for that segment of the population unwilling to spend any but the minimum time at the centre. At the present time, there are 28, four hour spaces and 20 one hour spaces within the car park.
61. In Mr Ashton's opinion the number of car spaces likely to be generated over the lunchtime period by a 45 seat restaurant, in an established shopping centre, is close to the suggested 0.6 spaces per seat ratio of the Planning Scheme than the 0.3 spaces ratio suggested in the TTM Consultant's report that was considered by the Responsible Authority. As he put it the extra demand from the expansion to 45 seats would be closer to 15 spaces than the six spaces suggested by TTM. In reaching this conclusion he rejected TTM's use of the Inner Metropolitan Regional Association's (IMRA) study which demonstrates significantly lower parking rates for lunchtime trade in restaurants. He suggested that these studies were slanted in favour of precincts with a substantial office component, such as St Kilda Road. Having analysed the restaurants listed I am not at all persuaded that this is the case. Rather the premises surveyed are or were located for the most part in established strip shopping centres. Certainly these were mostly inner-urban centres, but I am not persuaded that they would differ markedly from the Glenhuntly Road Shopping centre. The IMRA Study shows about a one-third difference between daytime and evening parking generation rates for restaurants and I am satisfied that it is appropriate to give some weight to this study when considering the likely parking generation in the subject case.
62. Mr Ashton was also of the opinion that being a specialist kosher restaurant, there would be a greater propensity for persons to drive from all over Melbourne to attend luncheons at these premises, hence giving rise to a higher parking demand than might otherwise be the case. While I accept that this opinion has some foundation, it must be remembered that this is certainly not the only kosher restaurant in Melbourne and that those that exist are not too far removed, being mostly in St Kilda to the east.
63. I also accept, as evidenced by the letters of support tendered by Mr Chiappi, that there must be a very local catchment given the number of employees associated with locally based Jewish organisations or businesses, and indeed local residents who live or work nearby - Caulfield having one of the highest Jewish populations in Melbourne. Such persons may well be in the shopping centre for other reasons, it being their local centre or the place where they work, and will arrive by foot. In other words the restaurant provides a locally based venue for local residents and workers. It avoids the need for these persons to attend premises in St Kilda which would more likely generate the need for a car trip. I think it relevant also that these premises serve only light meals and refreshments and are not licensed. It could hardly be described as a regional drawcard for long lunches.
64. At Clause 52.06-1, included among the matters to be considered when deciding whether to reduce or waive the Scheme's car parking requirements, are "an empirical assessment of car parking demand, ... the availability of car parking in the locality, and ... the availability of public transport in the locality". I am satisfied that the number of car spaces likely to be generated during the weekday lunch period is likely to be significantly less than the 0.6 spaces per seat suggested in the Planning Scheme. Based on the material presented in this case, I find it likely that the additional demand would be somewhere between six and ten spaces. The surveys demonstrated that significantly more than this number of car spaces is presently available within a reasonable walking distance of the subject land. In relation to the allegedly different character of car space utilisation, associated with the restaurant, I was not persuaded by Mr Ashton's evidence that this is a proper criticism to direct towards this particular proposal. This is especially the case in the context of the argument of Penhalluriacks serving an anchor role and in the context of there being other uses, including Penhalluriacks, which are tending to encourage persons to stay longer. The better approach to this issue must be to review time limits in the public car park.
65. Other matters to have regard to at Clause 52.06-1, include local traffic management and local amenity, including pedestrian amenity. Notwithstanding Mrs Soo's observation of how parking numbers and the intensity of parking has changed in front of her dwelling (which is now sandwiched between the Penhalluriack garden centre and the hardware and building centres), I was not provided with any evidence which could persuade me to find that an additional demand for a further six to ten car spaces at lunch time would have any noticeable impact on pedestrian amenity or local traffic management. Certainly this was not a concern raised by Mr Ashton - an expert in this field.
66. Clause 52.06-1 also refers to "any other relevant matter". I have already said that I think it relevant to concentrate more on the likely generation of the additional seating - the parking surveys obviously include parking presently being generated by the restaurant. The fact is also that the existing 20 seat restaurant with no car parking is a lawful use that may continue. The subject application is focussed on the effects of a change to that use. In this context my having regard to such a change is generally consistent with another matter for consideration under Clause 52.06-1, namely "any credit which should be allowed for car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement".
67. I believe that another relevant matter to consider in this particular case, is the regrettable need to provide a high level of on-site security. To require all existing car space leases to be terminated and the car park left open for use on a first come first serve basis would entirely undermine the centre's security arrangements.
68. An alternative would be to provide for restaurant patrons to enter the car park via the security gate, make themselves known to the security guard and establish, from the guard whether any office staff were out and how long their spaces might remain vacant. Given that the peak restaurant usage times are during the day when the offices are operating and the security requirement is greatest, such an open door policy would, I accept, entirely undermine the security system presently in place.
69. If the evidence had confirmed that sufficient public parking was not available, within a reasonable distance of the subject land, to accommodate the estimated increase of six to ten car spaces I might have found it appropriate to refuse a permit to reduce the Scheme's requirement for parking. However, I have found otherwise. Accordingly, given the need for security in relation to the site and in view of the availability of parking elsewhere, I am persuaded that it is not necessary and indeed would be inappropriate to require parking - to be provided on-site for restaurant patrons.
70. This brings me to the other issue, that of meetings and restaurant use during the daytime on a Sunday. Except in the case of meetings attended by school children arriving by foot or by bus, Permit CAUL 6161 only authorises meetings that are "outside of normal business hours". Being a Jewish community building there is no Saturday ie. Sabbath use. However on Sunday, when Sunday trading occurs at Penhalluriack's enterprises, there is the potential for a meeting to take place when public parking for retail patrons is also in demand. As noted by Mr Peake this is "business hours" for Mr Penhalluriack albeit not as yet commonly understood as "normal business hours". Likewise, under Condition 1(b) of the Notice of Decision the restaurant may seat up to 70 persons for lunch on Sundays compared to 45 on other days of the week.
71. Under both Permit No. CAUL 6161 and Condition 15 of the Notice of Decision, the boom gate is required to be kept open but only during evening meetings and with a sign to be displayed at the front entrance "encouraging on-site visitor parking".
72. It was suggested that this encouragement be extended to during the day on a Sunday, notwithstanding the fact that the evidence showed some use of the car park by office users at those times. I find there is logic in requiring the rear car park to be available for use when meetings are held on a Sunday during the day and I think a sign encouraging visitor car parking on-site should be displayed. The evidence did not persuade me that the number of office car spaces in use on a Sunday should prevent this and because such meetings are held inside the building, security personnel are always engaged. This differs from the restaurant which is separated internally from the remainder of the building and has its own entrance. Security personnel are there, among other things, to vet arrivals and departures which, unlike with a restaurant, occur at reasonably fixed times. Provided there is an attendant present to raise and lower the boom gate and if necessary to vet patrons I think it reasonable to include a condition requiring parking on a Sunday but I think it unreasonable given the presence of the security guard and intercom to require the boom gate to remain open. It is not for this Tribunal or the Responsible Authority to tell the Beth Weizmann Centre how it should monitor attendances at such meetings. It makes no difference, if the vetting takes place at the boom gate or at the entry door. It was suggested by Mr Ashton and Mr Robinson - although neither purported to have any particular expertise in the area, that a boom gate could be a disincentive to persons seeking a car space. This would mean that their first choice would be the street or the car park opposite. I think this is not an unreasonable conclusion to draw however a further disincentive may be the 60m long driveway which makes it impossible for anyone at the entry to know whether the car park will prove to be full on their arrival - so necessitating a return trip to the street. A security guard with a security boom can assist in providing advice and in instilling confidence about space availability. There may be merit also in making a positive out of this potential negative and having the sign at the driveway entry advising of the existence of "secure" on-site parking and requiring the attendant to place a car park full sign out at the appropriate time.
73. I have already noted that the parking requirements for a 120 seat place of assembly is 36 spaces, ie. the number provided in the car park. One of the matters to be taken into account at Clause 52.06-1, when considering a reduction in the required number of car spaces is:
"Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces."
74. The limitation on meetings other than outside normal business hours, facilitates such a multiple use. I am reluctant to require measures such as the boom gate being open, which would undermine the security of this high risk venue. However, with appropriately worded signs, I am satisfied that an appropriate and safe outcome can be achieved. Of course, at the end of the day, if there are indeed public car parking spaces available in the vicinity - and there was no evidence presented in this case to say that they were not available on a Sunday - then it would be difficult to prevent their use, whether by meeting attendees or retail customers.
75. I was provided with no evidence in relation to public parking levels during the day on a Sunday - other than some selective and inconclusive photographs taken by Mr Penhalluriack. In the absence of such evidence I find it reasonable to assume that on a Sunday, when most businesses other than Penhalluriacks, are less active than during the week, that the availability of public parking in the area will be greater than on weekdays. Assuming that all 70 restaurant seats are taken up - an unlikely scenario I would suggest for every Sunday - and applying the Scheme's 0.6 ratio for the 50 additional seats now sought, a requirement of 30 spaces ensues. While I would accept that the prospect of persons arriving by foot from elsewhere within the centre is not in prospect on a Sunday (or at best unlikely), I agree that the likelihood of family groups and shared car usage would increase during the day on a Sunday. Accordingly I accept that the 0.6 ratio may be slightly too high. If it was at say 0.5 the likely demand reduces to 25 spaces. I am satisfied that even at 30 spaces the likelihood is that there will be spaces available within five minutes walk of the restaurant. To the extent that these may be within the Council car park and their use by restaurant patrons may force Penhalluriack customers to walk a little further, then as I have said already Penhalluriacks provides a bulky goods pick-up area. Furthermore for the fast turnaround customers the better solution is to introduce more short-term parking restrictions.
76. The wording of a number of the conditions in the notice of decision was also in issue particularly in relation to the extent to which certain of the restrictions could be altered with the consent of the Responsible Authority. In his witness statement Mr Robinson provided an amended form of the Notice of Decision which set out what he considered to be more appropriate terms. Many of his amendments take away the ability for Council to approve changes by way of secondary consents. They also target the boom gate, requiring it to be open to enable both restaurant and meeting patrons to access the rear car park. I agree that the conditions as drafted in the Notice of Decision are often repetitious, possibly due to the failure to set them out logically in groups of associated restrictions. Having regard to the submissions and evidence put to me in this case I have seen fit to amend a number of the conditions, to delete the more repetitious or unhelpful ones and I have sought to encapsulate my findings in relation to the boom gate, signs and use of the terms "restaurant" and "meeting room" rather than café and meeting hall. I also accept the submissions by Mr Hammond that the reference in Condition No. 14 to "satisfaction of the Responsible Authority" in relation to the meeting hall not being hired out for private functions such as discos, wedding receptions or 21st birthdays is grammatically awkward and somewhat meaningless. Clearly it would be inappropriate for the sort of private functions listed to be conducted on the premises, given the proximity of the nursing home next door. I see no need to put this matter in doubt. I have also extended the daytime period for the restaurant to 6.00 p.m. as this was specifically volunteered by Mr Chiappi on behalf of his clients.
77. A final matter is the question of costs in relation to the urgent directions hearing which took place on 22 May 2001 and which resulted in the hearing scheduled for 23 May being adjourned. The question of costs in relation to the directions hearing was reserved by me at the request of the parties towards the conclusion of the hearing. Should any party wish to pursue this matter, application should be made within 20 business days from the date of this order.
Penhalluriack & Ors
Glen Eira CC [2001] VCAT 2326
The Council's decision was varied and a permit was directed to issue for a reduction of the scheme's off-street parking requirements and use of the ground floor as a restaurant and place of assembly, in accordance with endorsed plans and conditions. The question of costs relating to the 22 May 2001 directions hearing was reserved ([Order]).