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[2003] VCAT 1419
respondent. The request for review was disallowed. The Responsible Authority was directed to issue a permit, subject to amended plans and conditions concerning parking allocation and management, noise, waste,...
The Tribunal allowed the hotel-related uses to proceed, including converting five dwellings to serviced apartments and using small ground-floor rooms as a conference centre. It considered the rooms and conference use acceptable in this building, and treated operational concerns as matters that could be managed through permit conditions. It required parking to be divided between hotel users on the lower level and permanent dwelling occupants on the upper level. Pollard's review application was disallowed, and the Council was directed to issue the permit with conditions.
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In Pollard v Port Phillip CC [2003] VCAT 1419, Rod Pollard applied under section 82 of the Planning and Environment Act 1987 to review Port Phillip City Council's decision to grant a planning permit for a mixed hotel and residential building at 604 St Kilda Road, Melbourne. The permit related to four matters: use of part of the ground floor as a conference centre; conversion of five existing dwellings to serviced apartments; a reduction in parking associated with the uses; and revised parking arrangements, including liquor service in the conference centre ([1]).
No linked legislation citations have been extracted yet.
The building had a mixed history and layout. It was originally an office building, later refurbished for residential and hotel uses. At the time of the decision, lower levels were used for serviced apartments and hotel facilities, while upper levels had been set up and sold as conventional dwellings ([2], [9]–[12]). The two car parks were physically separate: the ground-level car park was accessed from St Kilda Road and had approximately 36 spaces, while the lower-level car park was accessed from Queens Lane and had approximately 40 spaces ([12]).
The proposal involved five identified dwellings, numbers 56, 72, 73, 83 and 84, being used as serviced apartments, and approximately 64 square metres of ground-floor space being used as a conference centre ([3]). The proposal also sought approval for a parking dispensation and a revised layout that broadly reflected the arrangements then on site ([3]). The judgment records that some of the uses might already have been operating, but does not establish that point conclusively ([9]).
Pollard raised concerns about commercial vehicles obstructing parking access, trolleys and luggage in residential corridors, damage to corridor walls, noise from hotel guests, room-service trays left in corridors and possible parking problems ([13]–[14]). He also referred to the original separation between hotel and residential areas and expressed concern that the conference rooms might instead become shops ([15]). The Tribunal inspected the building and car parks on 29 September 2003 ([6]).
The review was disallowed. The Council was directed to issue a permit subject to amended plans and conditions. Those conditions required plans showing the actual conference-centre area and 40 lower-level and 36 upper-level parking spaces; a parking-management plan; a management plan dealing with possible conflict between serviced apartments and dwellings; controls concerning noise, waste and deliveries; conference-centre operating hours; and restrictions on public-address systems (orders, conditions 1–11).
During the hearing, Sigma Hospitality Corporation Pty Ltd sought to replace Key Suites St Kilda Road Pty Ltd as the permit applicant because Sigma had taken over that company. No party objected, and the Tribunal made the substitution under clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 ([8]).
The decision is a site-specific merits determination, rather than a broad statement about all mixed hotel and residential buildings. The Tribunal examined the particular rooms, corridors, parking layout and relationship between uses at this building. Its reasons repeatedly connect the outcome to those features.
For the five dwellings proposed to become serviced apartments, the Tribunal inspected dwelling 83 and compared the upper-level rooms with suites on the lower levels ([18]). It considered the rooms suitable and of a superior standard, and noted that their rental cost meant they would not be let at the same occupancy rates as other rooms ([19]). It then considered the corridor concerns. The Tribunal did not dismiss those concerns, but concluded that the narrower corridors did not make the use unacceptable because management could address the problems through a condition requiring a management plan ([20]). It therefore found no planning-ground reason to refuse the use ([21]).
The conference-centre decision similarly turned on the characteristics of the proposed space. The Tribunal found the rooms small and isolated from the upper dwellings, with their use controlled through the manned hotel desk ([22]). It regarded the conference use as complementary to the hotel and restaurant already permitted and operating. It also considered that there was little prospect of the space becoming shops, contrary to Pollard's concern ([22]–[23]). The Tribunal accepted liquor service as part of the conference-centre use, noting that liquor would be served from the restaurant and for functions associated with the hotel ([24]–[25]). The permit nevertheless controlled the use through conditions, including specific operating hours and a restriction on public-address systems being audible outside the building or in the upper private dwellings (orders, conditions 10–11).
Parking was the central operational issue. The Tribunal considered the parking levels separate and distinct, and assigned them to different groups. The lower level was to serve the hotel, restaurant and conference centre; the upper level was to remain for permanent owners and occupiers of the dwellings ([27], [30]–[31]). The Tribunal accepted that 40 lower-level spaces were adequate for the hotel-related uses, including the restaurant and conference rooms ([27], [30]). It also considered that conference-centre users would be hotel guests or people from local offices and agreed that no additional specific spaces were needed for the conference rooms ([28]).
The distinction between planning approval and the building's survey or subdivision arrangements is important to the reasoning. The Tribunal noted that the parking layout might not conform to the survey plan and stated that the Body Corporate should arrange a re-survey and re-allocation if needed. It considered that correction was not a matter for the Tribunal in this review ([26], [29]). That observation does not remove the permit's parking conditions. The final orders required amended plans showing 40 spaces at the lower level and 36 at the upper level, marking-out of parking and access lanes, a parking-management plan, and continuation of the upper-level allocation in the plan of subdivision (orders, conditions 1(b), 3–5).
The overall method was to approve uses the Tribunal found acceptable while imposing conditions directed to identified practical risks. The management-plan condition addressed conflicts between serviced apartments and dwellings, including linen, corridor security, shared lift areas, laundry trolleys and food trays (order, condition 8). Other conditions addressed noise, waste, hours and public-address systems (order, conditions 6–11).
The judgment identifies the statutory basis for the review as section 82 of the Planning and Environment Act 1987 ([1]). It does not set out the text of that section or formulate a general legal test for section 82 reviews. Its reasoning should therefore be read as a decision applying the review jurisdiction to the facts and planning controls described in the reasons, not as a comprehensive account of the statutory test.
Before this decision, the site already had a sequence of planning approvals. The judgment records approvals for conversion of office floors to dwellings, serviced apartments, and a restaurant, as well as a refused application to change lower-level serviced apartments to dwellings ([9]). It also records that a Design and Development Overlay applied, but says no external alterations were proposed and the overlay was not applicable to the proposal ([4]). The judgment treats the permit question as concerning use, parking and operational arrangements.
The Tribunal's decision altered the practical position by directing the Council to issue a permit for the proposed uses, subject to amended plans and conditions. The reasons make three site-specific determinations: the five dwellings could be used as serviced apartments; the ground-floor rooms could be used as conference rooms, including the associated liquor service; and the car parks should serve distinct groups of users ([21]–[31]). The order conditions then formalised those arrangements.
The decision does not purport to change the general law governing parking, mixed uses, amenity or management plans. Nor does it state that a management plan will always cure operational effects, or that a particular number of parking spaces is generally adequate. The 40-space assessment was expressly about this hotel's combined uses at this site ([27], [30]). The judgment likewise does not establish a general rule about liquor service or conference-centre hours. Those matters were dealt with in the context of the specific rooms, their relationship to the hotel and the conditions imposed.
No later legislation, judgments or commentary are included in the supplied text. It is therefore not possible, on this record, to describe a verified change in the law after the decision or to say whether later courts have adopted, limited or distinguished its reasoning.
At [20], the Tribunal said: “The use is satisfactory and the narrower corridors do not appear an impediment with the concerns raised by Mr Pollard being able to be handled by management in a condition relating to a management plan.” In plain English, the Tribunal considered corridor-related problems real enough to address, but not a reason to refuse the proposed use. It thought a management plan could deal with them.
At [21], it concluded: “There are no reasons on planning grounds to refuse to allow the upper levels of dwellings to be used as residential hotel suites and the Tribunal will permit the use.” This is the clearest statement of the Tribunal's conclusion about the five dwellings. It is expressly a planning assessment of this proposal, not a statement that any dwelling may be converted to hotel use.
At [22], the Tribunal described the conference rooms as “quite small” and considered them isolated from the upper dwellings and controllable through the manned hotel desk. This explains why the Tribunal saw the proposed use as compatible with the building's residential component. The supporting permit conditions included operating hours and a limit on public-address systems being audible outside the building or in upper private dwellings (order, conditions 10–11).
At [27], the Tribunal said the parking levels “should remain separate and distinct” and that the upper level should be retained for permanent dwelling occupants. It considered 40 spaces on the lower level adequate for hotel-related uses. Read with [30]–[31], this is a practical allocation intended to prevent confusion or conflict between hotel users and residents. The order translated the conclusion into plan and management requirements (order, conditions 1(b), 4–5).
At [29], the Tribunal stated that certain parking requirements in the Council's notice were not the subject of the application and could not be enforced because of an existing survey plan. It added that the Body Corporate had to resolve the difference between actual parking spaces and the survey plan. The significance is limited: the Tribunal separated matters it considered within the permit review from the separate issue of the site's survey and allocation arrangements.
The decision is most relevant as a factual comparison where a planning dispute concerns a building with distinct hotel and residential components, separate parking areas, and proposed use of existing dwellings as serviced apartments. Potentially comparable features include a modest conference facility within an established hotel, separation between that facility and private residential areas, and operational concerns that can be identified and addressed through permit conditions.
The judgment also offers a useful comparison where the central dispute is how to allocate parking between permanent residents and hotel users. Here, the physical separation of the two car parks, their different access points, and the Tribunal's inspection informed the conclusion. A materially different layout, different parking capacity or evidence of different operational demands may make the comparison less persuasive. The judgment itself does not supply a general formula for calculating parking adequacy.
For amenity issues, the case is relevant where complaints concern shared corridors, trolleys, linen, trays, noise or security in a mixed-use building. The Tribunal's response depended on its view that the specific problems could be managed and on conditions directed to those issues. A comparison should therefore consider what evidence exists about the likely effects, whether spaces are actually shared, how users move through the building, and what the relevant permit conditions say.
The decision is less directly informative where the dispute concerns external building works, streetscape effects, or a different planning control. The Tribunal noted that no external alterations were proposed and that the Design and Development Overlay was not applicable to the proposal ([4]). It also does not decide the separate legal status of the Body Corporate's survey or subdivision arrangements; it expressly treated their correction as outside the permit review ([26], [29]).
These are indicators for comparing facts, not a test stated by the Tribunal. The judgment provides no basis to conclude that a later tribunal must reach the same result in a different case.
The supplied judgment contains no citations to later decisions, and the materials provided do not include subsequent judicial treatment. Accordingly, it is not possible to say from this source whether a later court or tribunal followed, applied, distinguished, criticised or otherwise treated Pollard.
The judgment itself refers to a number of earlier permit applications for the same site, but those are part of the planning history, not later treatment of this decision ([9]). It mentions prior approvals and a refused application, without setting out the reasoning in those matters. Those references should not be described as authorities that Pollard applied.
The judgment also identifies section 82 of the Planning and Environment Act 1987 and clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 ([1], [8]). It does not cite other judgments or develop a precedent-based analysis. A reliable account of subsequent treatment would require sources beyond the judgment supplied here.
The decision leaves several matters unresolved on its face. First, it does not explain the detailed method by which the 40 lower-level spaces were assessed as adequate. It records the Tribunal's conclusion, but not a detailed traffic or demand analysis ([27], [30]). It also does not explain in detail why the proposed conference-centre users would not create additional parking demand, beyond recording the operator's position and agreeing with it ([28]).
Second, the decision refers to the Body Corporate's survey plan and the discrepancy between the actual layout and that plan, but does not determine the legal or practical steps required to correct it ([26], [29]). The permit conditions deal with marked spaces, allocations and management, while the reasons distinguish those matters from the survey-plan issue.
Third, the Tribunal considered that the management plan could address corridor and shared-area concerns, but the reasons do not assess a completed management plan. Instead, condition 8 required one to be prepared within one month of the permit's issue and to the responsible authority's satisfaction. The condition listed examples, including linen storage, corridor and lift security, laundry trolleys and food trays, while allowing other matters to be included (order, condition 8). How the plan would work in practice is not addressed in the decision.
Fourth, the reasons do not quantify likely noise or other amenity impacts. The conditions require compliance with specified noise requirements and restrict conference-centre hours and audible public-address systems (order, conditions 6, 9–11). The judgment does not report monitoring results or resolve how compliance would be assessed in any later dispute.
Finally, the decision is expressly tied to the proposal, building and operational arrangements before the Tribunal. It does not decide what result would follow if the conference rooms were larger, located closer to private dwellings, operated at different hours, or served by parking arrangements that were not physically separate. Those remain factual questions beyond what this judgment answers.
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Key Suites St Kilda Road Pty Ltd, Body Corporate 414694K Plan 3 and substituted to Sigma Hospitality Corporation P/L
The request to review the decision of the Responsible Authority to grant a permit for use of part ground level floor space for a conference centre, convert existing dwellings (No's 56, 72, 73, 83 & 84) to serviced apartments, reduce car parking associated with the conference centre and serviced apartments, allow liquor to be consumed in the conference centre and re-configure the car parking levels in accordance with the endorsed plans is disallowed. The Responsible Authority is directed to issue a permit with the following conditions -
1. Before the development and use starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the submitted plans but modified to show:
(a) The actual and correct extent of the area of the ground floor to be used as the conference centre (generally 65m2 in area).
(b) The car parking areas shall be marked out to provide 40 spaces at the lower level and 36 spaces at the upper (dwelling occupants) level.
2. The various uses as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Within 1 month of the issue of this permit, the areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be marked out to the satisfaction of the Responsible Authority.
Parking areas and access lanes must be kept available for those purposes at all times.
4. A parking management plan shall be prepared to show the use and control of parking for hotel staff and guests, who are to use the lower car park level only.
5. The car parking allocation used in any Plan of Subdivision for this development shall remain the same at the upper level in terms of total number as provided for when the dwellings were sold.
6. The use of the site shall not cause nuisance or be detrimental to the amenity of the neighbourhood by the emission of noise. In this regard the emission of noise shall comply with the provisions of the Environment Protection Authority.
7. Protection shall be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.
8. Within one month of the issue of this permit, a Management Plan to the satisfaction of the Responsible Authority shall be prepared indicating how matters of potential conflict between the serviced apartments and dwellings are to be appropriately managed and resolved. Such matters may include, but are not limited to, (i) linen storage/retrieval in corridors, (ii) security of corridors where serviced apartments and dwellings exist on the same floor, (iii) security of any lift lobby/foyer shared by serviced apartments and dwellings, (iv) the control and use of laundry trolleys in corridors and the prompt removal of food trays.
9. The amenity of the area, including properties neighbouring the subject site and the individual dwellings within the subject building, must not be detrimentally affected by the use or development through the:
a) Transport of materials, good or commodities to or from the land.
b) Emission of noise, artificial light, vibration, smell, fumes, smoke, steam, waste water or waste products.
Noise emissions must at all times comply with Australian Standards AS 1055 and As 2107.
10. The conference center allowed by this permit must only operate between the following hours:
11. No form of public address system as part of any of the uses allowed by this permit shall be audible from outside of the building nor in the upper private residential dwellings.
12. This permit will expire if one of the following circumstances applies:
(a) The development is not started within 2 years of the date of the permit.
(b) The development is not completed within 2 years of the date of commencement of works.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
1. This application is brought under Section 82 of the Planning and Environment Act 1987 to review a decision of the Responsible Authority to grant a permit for use of part ground level floor space for a conference centre, convert existing dwellings (No's 56, 72, 73, 83 & 84) to serviced apartments, reduce car parking associated with the conference centre and serviced apartments, allow liquor to be consumed in the conference centre and re-configure the car parking levels in accordance with the endorsed plans at 604 St Kilda Road, Melbourne.
"The subject site is on the west side of St Kilda Road, Melbourne. It is about 65m south-east east of Lorne Street. The site is rectangular and has an area of just over 2,00m2. St Kilda Road itself is a wide boulevard with parallel parking lanes, multiple traffic lanes (8) and busy tram routes in the centre of the reserve. Further detailed description of St Kilda Road is not considered necessary due largely to (i) general familiarity and (ii) lack of direct relevance to this appeal, as no buildings and works affecting streetscape character are noted. The site also has frontage to Queens Lane, being a busy yet narrow rear street. In recent years, its use has become one of local feeder `street' to the many car parks which have direct access to it.
St Kilda Road in the vicinity of the site contains generally multi storey residential and office buildings of generally 8 to 15 storeys in height. Most building stock dates from the mid 1970's to the present day.
The site is currently occupied by a ten storey building, partly used for a serviced apartment complex and partly as `conventional' residential dwellings. A restaurant and conference facility also exist. The building was constructed in the 1960's solely as an office building, but in the last five years or so, has seen the office use replaced with residential uses. The site contains two levels of car parking accessed from bothy road frontages with the ground level accessed only from St Kilda Road and the `lower ground' level accessed only from Queens Lane. Both car park levels are secured by gates and/or doors."
3. The proposal, also from Mr Beard's submission is:
"It is noted that certain of the proposed uses are actually now existing. However, setting aside matters of retrospectivity, the proposal is described as follows. The proposal involves conversion of current dwellings 56, 72, 73, 83 & 84 into serviced apartments (two bedrooms each) along with utilising approximately 64m2 of office storage space for a conference centre/place of assembly. No hours of operation were specified for this facility at the time of application. The application also proposes a car parking dispensation in relation to both the conference centre and the conversion of dwellings into serviced apartments. According to the applicant's traffic report, a dispensation of 32 car spaces is being sought for the conference centre (based on 105m2) and no specific dispensation is being sought for the serviced apartments as such use does not appear in the table to Clause 52.06.
The proposal also involves a Respondent-arrangement of the two car parking levels so as to effectively supersede all previous approved plans and obtain the maximum number of useable car spaces. The proposed car park layout is to align with that which currently appears on the ground, with some very minor differences. The proposed car park layout would allow for at least 46 workable spaces at ground level accessed from St Kilda Road and at least 41 at lower ground level accessed from Queens Lane. These maximum numbers would require some additional spaces to be marked on the ground (3 at ground, 4 at lower ground) together with potential Respondent-location of current rubbish bin areas. The applicant's most recent planning consultant advised that the maximum number of workable car spaces would be sought and the above numbers (based on a site inspection) reflect this. Assessment of this will follow later in this submission. It is also proposed to allow liquor to be served in the conference centre."
4. The subject land is zoned Business 5 under the Port Phillip Planning Scheme and is affected by Design and Development Overlay 4-3. A permit is required for the use of the Conference Rooms as they are considered a `Place of Assembly', for car parking dispensation and the use of the residential units as hotel suites all associated with the Ramada Hotel. It is noted that there are no external alterations proposed and the DDO is not applicable.
"I wish to appeal this decision on the basis of the objection I lodged and more specifically on the non-achievability of the parking outcomes detailed in the proposed permit conditions by the City of Port Phillip.
I have spoken to the Planner, James Livingstone, employed by the applicant, and there appears to be no plan of the proposed parking arrangements that I can view to understand whether my concerns regarding the proposal is justified."
6. The Tribunal considered it necessary to inspect the building and carparking arrangements prior to preparing this decision. This was carried out on the afternoon of Monday 29 September 2003.
7. It is to be recorded that at the inspection with the Body Corporate Manager M/s Tegg, she had an envelope with a written submission from Mr Pollard to be given to the Tribunal, however as the hearing of submissions had concluded the previous Friday, the additional submission could not be accepted. Mr Pollard made an excellent verbal submission at the hearing and all matters he raised were noted in writing and taken into account on the inspection.
8. Mr Mark Woodbridge, Managing Director of Sigma Hospitality Corporation Pty Ltd advised that his Company had taken over Key Suites St Kilda Road Pty Ltd and he sought the substitution of his Company's name as the permit applicant. There was no objection and the Company name substituted in accordance with the provisions of Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
9. Mr Beard detailed background history for the benefit of the Tribunal, which stated:
"Various permits have been issued in recent years. In addition, an application for change from serviced apartment to dwellings (at levels 1-4) was refused. The key background applications are as follows:
* 368/98. Allowed staged development converting office floorspace at levels 5-10 into 38 dwellings. Required 53 resident and 8 visitor parking spaces. Approved 14th May, 1998.
* 660/98. Allowed stage two of the change (levels 1-4) from office to 44 serviced apartments and provision of 91 car spaces. Approved 15th June, 1998.
* 1287/2000. Allowed food and drink premises (62 seat restaurant), required 86 car parking spaces. Approved 9th January, 2001.
* Application 31.2000, for change of levels 1-4 to dwellings from 44 serviced apartments, refused 29th March, 2000.
Currently the site is being used for some of the uses sought by this application, namely the conference centre and a largely Respondent-configured car parking layout. It has not been established beyond doubt, but it appears also that the 5 dwellings sought to be converted to serviced apartments are already operating as such. Therefore, there is certainly (and perhaps wholly) a retrospective nature of this matter."
10. The building on the subject land is a mix of serviced apartments and suites on floors 1-4 now operating as the Ramada Hotel/Suites with the levels beyond the fourth floor set up and sold as dwelling units when the building was refurbished in the 1990's.
11. The background detailed above includes the approval to operate the restaurant/café at ground floor level associated with the hotel.
12. Car parking is set at two separate levels with ground floor level of approximately 36 spaces entered off St Kilda Road for the dwelling occupants and the lower level of approximately 40 cars entered off Queens Lane for hotel guests. The car parks are not interconnected.
13. Mr Pollard is an owner/occupier of a dwelling on the eighth level and owns two other investment dwellings on the fifth floor. He detailed a number of concerns some of which relate to the previous operator of the serviced apartments rental suites.
* Noise from hotel/suite guests in the dwelling area
15. Mr Pollard considered the serviced apartments should not be operating as an hotel and that the proposed conference rooms were to be and should be shops. In addition, he referred to publicity material prepared for and presented at the time of sale of the dwellings within the building that clearly showed a separation between the serviced apartments (floors 1-4) and the upper dwellings (floors 5 up). The separate foyer and key lifts confirm the original concept intention of the building.
16. It is obvious that the original concept has needed adjustment in that the hotel exists with a pleasant restaurant, however from the inspection the carpark is operating separately, but as stated by Mr Beard, not as originally laid out on the plan of survey/subdivision.
17. The carparking plan submitted with this application is close to what exists on site and what can practically be parked in the spaces available. There are a number of matters requiring a decision and after considering all aspects of the proposal, the Tribunal comments on each with a reason for each decision.
18. Application is made to use dwelling units 56, 72, 73, 83 and 84 as hotel suites. The Tribunal inspected the eighth floor and dwelling 83. The suites at the lower level were also inspected and the different width of corridors noted.
19. The Tribunal is satisfied that the dwelling rooms are suitable for this use and as a superior standard to the lower levels, offer an improved or alternative to hotel patrons. Because of the rental cost they will not be let at the same occupancy rates as other rooms.
20. The use is satisfactory and the narrower corridors do not appear an impediment with the concerns raised by Mr Pollard being able to be handled by management in a condition relating to a management plan.
21. There are no reasons on planning grounds to refuse to allow the upper levels of dwellings to be used as residential hotel suites and the Tribunal will permit the use.
22. The proposed two rooms to be used as conference rooms were also inspected and due to their isolation from the upper dwellings and control through the manned hotel desk, the Tribunal sees no reason to refuse to allow their use for that purpose. The rooms are quite small and the use is seen as complementary to the hotel and restaurant already permitted and operating.
23. Mr Pollard mentioned the two rooms as being future shops, however because of their location and the hotel use of the apartments, there is little if any chance of the space ever being used as shops.
24. The Tribunal will permit the use of the space as conference rooms and having stated that the use of the area for the serving of liquor as well which is seen as a part of the use of these type of facilities these days.
25. It is noted that the liquor will only be served from the restaurant and to functions associated with the hotel.
26. In relation to car parking, the two levels of car parking were inspected and if the current layout is not in conformity with the survey plan, the Body Corporate should arrange a re-survey and re-allocation to the dwellings. That is not a matter for this Tribunal, however it must be corrected.
27. In terms of car parking use, the two levels should remain separate and distinct and the upper level retained for permanent owners/occupiers of the dwellings only. The lower level should be used exclusively by the hotel and in this regard, the Tribunal believes that the 40 car spaces available at this level are adequate for the hotel, restaurant and conference room uses.
28. The conference rooms as stated by Mr Woodbridge will be used by hotel guests and/or local offices where there is no need for specific additional car spaces. The Tribunal agrees with Mr Woodbridge on this.
29. The conditions listed in the Notice of Decision to grant a permit dated the 23rd April 2003 included requirements for car parking that are not the subject of this application nor can they be enforceable because of an existing survey plan. There is no doubt the Body Corporate has problems and it is for them to sort out the difference in actual parking spaces available against the survey plan.
30. In terms of hotel car parking use and requirements, the Tribunal sees the lower level of car parking as available for the hotel and the 40 spaces there satisfy use requirements for all aspects of the hotel occupancy including the restaurant and conference rooms.
31. The upper level car park as stated earlier should be retained exclusively for permanent owners/occupiers of the upper dwellings so that no confusion or conflict can occur between the two types building users.
32. The conditions have been altered to an extent that the complete list is included in the decision above. The Responsible Authority will be directed to issue a permit for the matters sought and listed earlier.
Pollard
Port Phillip CC [2003] VCAT 1419
The request for review was disallowed. The Responsible Authority was directed to issue a permit, subject to amended plans and conditions concerning parking allocation and management, noise, waste, management of shared areas, conference-centre hours, public-address systems and permit expiry.