The decision of the Responsible Authority in relation to Planning Permit Application No. 610/2006 is set aside. No permit is granted.

Mr John Cicero, Solicitor of Best Hooper Solicitors who called Mr Jason Walsh to give expert traffic and parking evidence

1 This case is about alterations and additions to an existing two storey building to provide two new levels and additional ground floor area. The top three levels are to be used for 13 dwellings and the ground floor level used for four shops. The application includes waiver of all on-site carparking provision.

2 Port Phillip Council determined to grant a permit and objectors have sought a review of that decision under Section 82 of the Planning and Environment Act 1987 (the 'Act'). The key issue of this case is whether it is appropriate to allow a new development of 13 dwellings with no provision for carparking. I have found that there is insufficient policy support for a complete waiver of carparking provision.

3 The review site is located on the south east corner of Carlisle and William Streets, Balaclava. The site has an area of 368 square metres and is nearly square in shape.

4 A two storey brick building occupies most of the site comprising five shops at ground level (four facing Carlisle Street and one facing William Street). A yoga studio occupies the upper level and is accessed via stairs from an entry off William Street. There is no on-site carparking provided.

5 The surrounding area along Carlisle Street is retail and commercial in nature comprising shops and restaurants at ground level and a mix of commercial, office and residential uses at upper level. The built form along the street comprises both single and double storey buildings. Opposite the site on the north side of Carlisle Street is a car wash and patrol station.

6 To the south, facing William Street, are industrial and commercial uses, some with open carparking areas. Further south are residential properties.

7 Balaclava Station is some 100m to the west, a tram runs along Carlisle Street and the Chapel Street tram route is close by.

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Alter and extend the ground floor shops and create four shops facing Carlisle Street and an additional retail floor area of 56m2 (a total retail floor area of 311m2).

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Retention of the entry to upper levels from William Street.

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The shop front currently facing William Street converted to a shared storage area for garbage, scooters and bicycles associated with the residential use.

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Extension of the first floor area and conversion to seven one bedroom dwellings.

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Construction of second floor to comprise six one bedroom dwellings, three of which have a mezzanine bedroom provided in a new third level.

9 The new second level is to be setback 1.75m from the street frontages and will be partially obscured by the parapet of the existing building. The new third level covers a relatively small area and is setback in excess of 5m from any boundary. An atrium is sited south of the mezzanine level and will provide a central light well over the stair and passage access to each dwelling. The glazed roof of this atrium extends over the William Street façade providing a distinctive entry feature to the dwellings.

10 The review site is zoned Business 1 under the Port Phillip Planning Scheme (the 'Scheme'). No permit is required under the zone provisions for use of the land for a shop. Use of land for a dwelling is as of right provided that any frontage at ground level must not exceed 2 metres. It is noted that the apartment entry lobby has a frontage to William Street of 2.1m which would trigger a permit for use.[1] A permit is required for buildings and works under Clause 34.01-4 and decision guidelines are provided.

11 The site is within Heritage Overlay pursuant to Clause 43.01 of the Scheme. A permit is required to construct a building, carry out works or externally alter a building under this Overlay. The Schedule to the Overlay includes the site within Heritage Overlay HO7 identified as St Kilda, Elwood, Balaclava, Ripponlea and includes the area generally bounded by Carlisle Street to the north, Glenhuntly Road to the south, Hotham Street to the east and Mitford Street and Broadway to the west. External paint controls apply under this Schedule. Decision guidelines are provided at Clause 43.01-4.

12 A Special Building Overlay applies to the site pursuant to Clause 44.05. A permit is required for construction of a building or to construct or carry out works and referral to Melbourne Water is required. The application was referred to this authority which raised no objection to the grant of a permit subject to insertion of conditions in a permit, if issued. The inclusion of the conditions was not in contention at the hearing.

13 Clause 52.06 of the Scheme sets out carparking requirements. It provides that a new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land. Based on the requirements of the car parking table at Clause 52.06-5 a total of 31 car spaces are required and none are provided as part of the application. A permit may be granted to reduce or waive the number of car spaces required and decision guidelines are provided.

14 Requirements for bicycle facilities are set out at Clause 52.34. The proposal incorporates 9 bicycle spaces in a lockable compound and this provision meets the requirements under this clause.

15 Clause 65 of the Scheme is a relevant consideration.

16 Various parts of the State Planning Policy Framework have been considered in my assessment including Clauses 11, 12, 14, 15.11, 15.12, 16, 17, 18 and 19. Clauses 21, 22.02, 22.04, 22.06 and 22.09 are the relevant parts of the Local Planning Policy Framework.

17 The parties and the witness at the hearing relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I inspected the review site and environs following the hearing.

18 At the commencement of the hearing Mr Cicero made application to change the permit applicant from Mr George Gavdos to Xan-Gav Proprietary Limited. There was no objection to this request and leave was granted as requested under Section 127 of the Victorian Civil and Administrative Tribunal Act 1998.

19 Based on the issues identified by the parties, or arising from submissions presented to me, there are a number of matters to be addressed with car parking being the key and determinative issue. Before turning to that key issue I make findings on the following matters:

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Increased density;

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Affordability;

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Heritage issues;

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Amenity; and

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Loss of existing use.

20 There is a strong thrust in the Scheme supporting increased provision of housing and higher densities in activity centres. State policy [2] aims to facilitate sustainable development that takes full advantage of existing settlement patterns, and investment in transport and other facilities. Concentration of new development is encouraged at activity centres to provide a focus for high quality development, activity and living for the whole community. Increased densities in activity centres are also supported to achieve greater use of public transport and contribute to a more sustainable transport system. Other State policy provisions support the theme of encouraging increased densities to help consolidate urban areas and encourage public transport use.

21 Local policy[3] also encourages medium density housing on sites with proximity to public transport routes. A range of housing types to meet the diverse needs of Port Phillip's community is supported. A strategy to maintain and enhance the current diversity of housing stock is specifically identified for East St Kilda. The inclusion of residential land use in close proximity to retail centres is nominated as on objective in relation to retail land use to support strong economic activity, environmentally sustainable living and maximum use of public transport infrastructure.

22 The review site is within an area identified in Melbourne 2030 as one of the five 'Major Activity Centres' in Port Phillip. Its proximity to public transport is excellent with a railway station within 100m, several tram routes along Carlisle Street and the nearby Chapel Street and the Port Phillip Community Bus which includes Carlisle Street in several routes. I find there is strong policy support for housing on this site and at a higher density than might be contemplated elsewhere.

23 Ms Marshall submitted that the provision of dwellings without carparking will result in a reduced price for the dwellings and will thus meet policy aims to increase supply of well located, affordable housing in activity centres.[4]

24 Mr Hoffmann argued that there was no evidence to suggest that the small size of the dwellings and lack of on-site parking would translate into affordable dwellings.

25 Mr Cicero conceded that the issue of affordability is debatable.

26 I was provided with no expert evidence on this matter. Whilst I accept that a dwelling without a car space will cost less than a dwelling with a car space, this does not provide me with sufficient basis to find that the proposal will contribute to the objective of providing reasonable access to low cost housing for low income households.

27 The Heritage Overlay applicable to the site triggers the need for a permit for buildings and works. Having considered the relevant matters in the Scheme in relation to heritage[5], I am satisfied that the proposed development will be respectful of the heritage values of the existing building and surrounds. I have noted the following matters in reaching that finding:

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The new second level proposed will be recessed from the first floor and be significantly concealed by the existing parapet.

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The new third level has a small footprint and is substantially setback from any boundary (minium 5m) and will have limited visibility

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The distinctive oval window on the angled corner is to be retained. New windows are proposed but detailing is appropriate to a building of the Federation period.

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The glazed roofing extending from the roof down to the residential entry from William Street is a striking element and will be appropriately distinguishable from the original parts of the building.

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I was advised by Ms Marshall that Council's Heritage Adviser and Urban Designer fully support the proposed design.

28 Compliance of the proposal with heritage policy and controls was not in contention at the hearing. However Mr Cicero submitted that provision of carparking on site, whilst possible with access off William Street, would be at the expense of the heritage fabric by puncturing the ground level appearance of the site. I am not persuaded by this argument for two reasons.

29 Firstly, I note that the plans before me propose a roller entry from William Street to the common bicycle garage/ store area. I do not consider that entry to a carparking area would be significantly different in appearance to this presentation.

30 Secondly, the William Street elevation of the review site adjoins shops which are highly coloured and conspicuous whilst further south and opposite, are industrial style buildings. I note that Council's Urban Designer and Heritage Advisor indicated that the ground floor shop front areas on the review site have been substantially altered from their original detailing and show little evidence of remnant fabric. I was not provided with expert heritage evidence to persuade me that the ground floor façade of the building or the surrounding built form would be detrimentally affected in heritage terms by the provision of a vehicle access point. I do accept however that the relatively small size of the site means the provision of carparking on site would seriously limit the viability of redevelopment and I also acknowledge the disadvantages of a new crossover for pedestrian useage in a retail area.

31 I find that the dwellings are designed to provide an acceptable level of amenity for future residents. Natural light is provided to all dwellings via orientation to either Carlisle or William Streets or to internal atriums. Private open space is provided by way of balconies or courtyards to seven of the dwellings. Whilst the remaining six dwellings have no private open space they are provided with direct outlook to the street from living room windows. Internal privacy is protected by use of highlight window to bedrooms and there are no external overlooking issues.

32 The existing upper level of the building is currently used for a yoga studio and loss of the centre as a consequence of the proposed development was raised as a ground of review. I understand community concern about loss of an existing service but such loss can be influenced by many factors well beyond the scope of planning policy and control. Market demand and supply and personal decisions by private operators are just some of those factors. The Scheme provides no control over retention of an occupancy, either existing or proposed, and I do not find this ground of review substantiated.

33 As stated above, the full waiver of the car spaces required under the Scheme is the pivotal issue in this case. Clause 52.06-1 specifically contemplates waiving of the car parking requirements and provides a number of decision guidelines to be considered in determining whether a waiver is appropriate. Also relevant are the decision guidelines of Clause 65 which include the proviso that because a permit can be granted, does not imply that a permit should, or will be granted.

34 Ms Marshall submitted that Council has dealt with the key issue of car parking in an appropriate and sensible way. She argued that the decision to waive car parking was supported by key policy as follows:

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The objective of Clause 12.08 Better transport links is to create a more sustainable transport system by integrating land use and transport. The proposal increases densities in close proximity to public transport thereby achieving greater use of that service, maximising the use of existing infrastructure and improving the viability of the public transport operation. This is supported by local policy at Clause 21.05 Retail Land Use and Clause 22.02 Retail Centres Policy which, amongst other things, encourage residential land uses in close proximity to retail centres to support strong economic activity, environmentally sustainable living and maximum use of public transport infrastructure.

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Support for reduced dependence on car use and increased use of walking and cycling is extensive in the Scheme including at Clauses 12, 16, 17, and 18. Clause 21.05-11 Traffic and Transport identifies that there is considerable scope to increase transport efficiency including measures to reduce car dependency and encourage the use of environmentally friendly forms of transport such as walking, cycling, public transport and car pools.

35 Ms Marshall drew my attention to a recently released report 'Consultant Discussion Paper - Sustainable Transport Policy and Parking Rates' prepared by Ratio Consultants for Port Phillip Council in November 2006 ('Ratio report'). This report deals with how Council may best incorporate a sustainable transport policy into the Port Phillip Planning Scheme. The report, amongst other things, concludes that empirical parking rates are generally lower than those set out in Clause 52.06 of the Scheme and application of these lower rates will prevent excessive provision of carparking and hence excessive promotion of private car ownership and use. Recommendations include reduced parking provision rates for selected residential and office developments so as to restrain the level of reliance on private cars for the dominant home-to-office commuting behaviour. Conditions which would need to be met for developments to qualify for this lower 'sustainable' parking rate are listed.

36 Ms Marshall pointed out Condition 12 on the Notice of Decision to Grant a Permit which requires purchasers of the dwellings to made aware that there is no car space provided, that the dwelling will not be eligible for Council resident parking permits and provide information about car share schemes. She submitted that this condition is an important component of Council's approval and ensures that future occupiers of the dwellings will be under no misapprehension as to the position in relation to carparking.

37 Mr Walsh, in evidence, advised that there is limited unrestricted on-street parking in the vicinity of the site and observations of the parking show little availability of these spaces during the day or evening. This finding, he advised, is confirmed by the 'William Street, Balaclava Car Parking Impact Report' prepared by Council's Sustainable Transport Unit in 2006. Mr Walsh and Mr Cicero both submitted that the carparking conditions and heavy demand for car parking in the vicinity of the site will act as a disincentive for future residents of the dwellings to own a vehicle.

38 On the evidence of Mr Walsh, the development generates a requirement for 31 car spaces comprising 26 spaces for the dwellings and 5 for the additional floor area. Mr Cicero submitted that the number of car spaces to be waived should correctly be considered as less based on the following:

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The additional retail floor area, although generating a requirement for 5 car spaces, will be divided between 4 tenancies and is unlikely to generate additional demand for carparking compared with the existing five retail tenancies.

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Although 2 car spaces per dwelling are required under Clause 52.06-5, the rates under ResCode (Clause 55.03-11) have consistently been applied by the Tribunal and would result in a requirement for 16 car spaces (1 per dwelling and 3 visitor spaces).

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In activity centres it is reasonable to rely on street parking for visitors cars.

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Based on 2001 Census figures 34% of occupiers of one bedroom dwellings in the St Kilda region will not own a car.

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Acceptance of the above would result in a requirement for 9 car spaces.

39 Mr Cicero further submitted that a cultural shift is required in the community to encourage increased use of public transport and decreased use of private cars and one of the ways this can be achieved is by making it inconvenient for cars to be used. Depriving residents and visitors of the option of having cars, he argued, is all part of a Parking Limitation Policy which must have as its end result an increase in use of public transport and alternative means of personal transport. He argued that Port Philip Council should be applauded for embracing the policy outcome sought for housing in activity centres and facilitating that outcome by not requiring provision of on site carparking.

40 It was Mr Hofmann's submission that Council's response to require no carparking for new development in an area at saturation point for on-street carparking is inappropriate and not supported by policy. He argued that policy encouraged a reduction in, rather than elimination of, motor car trips. Whilst acknowledging that there needs to be a balancing of objectives, he submitted that parking must be considered and waiving of all parking for a development of the magnitude proposed is not acceptable.

41 Mr Hofmann, for the applicants for review, submitted that the need to include Condition 12 suggests that Council anticipates car ownership and assumptions that car owners are not attracted to the development are not correct. He submitted that there was no identified housing need for car space free development.

42 Both Mr Cicero and Ms Marshall drew my attention to previous decisions of this Tribunal which they argued supported the Council decision to approve this application. I will discuss these later.

43 I agree with the submissions that there is strong policy support for increased density of residential development in close proximity to public transport. I find that the review site has excellent proximity to public transport and the proposal will contribute to the aims of integration of land use and public transport and this is appropriate for sustainable development. I accept that there is a limited amount of, and high demand for, on-street parking in the vicinity of the site and note that this situation was not disputed by any party. However, I am not persuaded that these findings justify the waiving of the total carparking requirement for a significantly increased amount of floor area for residential use. I reach that position having regard to the following matters.

44 The strategic base provided in the State Planning Policy Framework provides clear direction for a shift to more sustainable transport useage, gives increased priority to modes of transport other than the car and seeks to reduce the number of motorised trips by concentrating activities in highly accessible locations. I find that the strategic base, whilst allowing consideration of carpark free developments, does not provide specific support for such an approach.

45 The Local Policy Framework provides no specific guidance in relation to carpark free developments. The objectives relating to traffic and transport in the MSS concurrently encourage provision of adequate parking facilities and increasing the use of environmentally friendly forms of transport. I accept that Council is seeking ways to advance sustainable transport objectives which could result in development of local policy which specifically addresses the issue of carpark free development. However, the applicable law in determining a proceeding is the law in force when the hearing is determined and I must therefore have regard to the Scheme as it currently exists. The Scheme aims to address carparking demand whilst at the same time encourage use of transport other than the car. I find that a waiver of all required car spaces when the development is likely to generate some demand for carparking, cannot be justified in the context of those dual policy aims.

46 Mr Cicero's referred to a parking limitation policy and argued that the lack of carparking provision was part of such a policy and furthered planning objectives relating to encouragement for increased use of other forms of transport. However, there is no parking limitation policy that I could be referred to within the Scheme. Instead, the Scheme contains, amongst other things, encouragement for provision of on-site carparking and actively discourages new development which may result in adverse amenity impacts arising from increased carparking demand.

47 I was not provided with any empirical evidence to demonstrate that zero on-site parking and limited availability of on-street parking results in residents not owning cars. I agree that the absence of on site carparking and the poor availability of on-street parking may well discourage car ownership (as would the proposed Condition 12 of the permit) but I do not accept that these circumstances prevent it. A survey of 2 apartment developments with zero onsite parking was undertaken as part of the Ratio report and showed that 6 of the 8 households which responded had at least one car which was parked on street or in carparks nearby. Acknowledging the limited nature of this survey, it would suggest that lack of on-site parking does not equate with lack of car ownership. In the context of on-street parking at saturation levels, this creates implications for amenity of existing residents and other users of on-street parking.

48 I accept Mr Cicero's submission that a requirement for 31 car spaces for the proposal is excessive. In particular, I am persuaded by Mr Walsh's evidence that the proposed increase in retail floor area is unlikely to generate any additional parking demand as the retail frontage and number of tenancies will be reduced. I also accept that the requirement for 2 car spaces per dwelling for 1 bedroom dwellings is unreasonable and agree that the ResCode requirement of 1 car space per dwelling is reasonable. Mr Walsh, on questioning, indicated that the visitor carparking likely to be generated by the development would be commensurate with the demand for carparking generated by the Yoga School. Allowing for the reduction in carparking requirement based on the above there remains a 13 car space requirement. This is a significant, and in my view unacceptable, number to be waived in the context of saturated on-street parking and the survey information in the Ratio report which indicates that the majority of zero on site parking apartments have cars.

49 In the Port Phillip municipality there are many sites capable of redevelopment with excellent proximity to public transport and within activity centres. In the absence of a parking limitation policy or other local policy providing guidance to car park free development, I find that approval of this proposal will represent a premature decision without policy support and create an inappropriate precedent for future proposals. Mr Walsh, on questioning, agreed that decisions on waiving of carparking would be better made on a locational based policy, rather than on an application by application basis.

50 The decision guidelines of Clause 52.06 require consideration of a number of matters to justify reduction or waiving of car parking requirements. These guidelines do not distinguish between decision criteria for determining that a reduced number of car spaces are required and the decision criteria for deciding whether or not the required car spaces should be provided. The evidence provided by Mr Walsh does not conclude that the development will generate no demand for car parking, but rather that the existing difficulty in parking on street will create a disincentive to car ownership. Whilst I accept justification for a reduced carparking requirement (for reasons outlined above), I am not persuaded that there is sufficient justification for waiving of carparking for a significantly increased floor area (additional floor area proposed is in excess of 500 square metres) in the absence of specific policy support or empirical evidence showing that the development will not generate additional parking demand.

51 I was referred to a previous decision of the Tribunal in Conti v Port Phillip CC [6] to approve development and use of the first floor of an existing building for 8 dwellings and the waiver of carparking requirements at 159-163 Carlisle Street, Balaclava. Ms Marshall submitted that the starting point for consideration to waiving car parking in this case should be informed by the existing position as occurred in Conti. That existing position is that no car parking spaces have ever been provided previously on the site; the existing building occupies the entire site; and it is impractical, from a heritage point of view, to demolish part of the building to provide carparking facilities without significant impact on ground floor users.

52 I do not agree that the starting point for assessment of the case before me is identical to the Conti case. I also find that the basis for the Tribunal decision in that case is predicated on different circumstances which limit comparison and reliance for precedent. The distinguishing matters I find are as follows:

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The proposal in Conti related to use of the existing first floor and did not incorporate significantly increased floor area. Eight dwellings were proposed. The case before me proposes use of the existing first floor and two new floors (albeit the top one quite small) and additional retail floor area and incorporates 13 dwellings. This creates a significantly different starting point in terms of the extent of car parking sought to be waived.

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The traffic evidence given in Conti and accepted by the Tribunal was that the 8 dwellings would be expected to generate a peak demand of four car spaces and that this demand could be accommodated in locations within walking distance of the review site. Mr Walsh, in giving traffic evidence on the current proposal, advised that there is little unrestricted parking available in the area and this is confirmed by a parking assessment undertaken by Council.[7] Mr Walsh agreed, on questioning, that there is nothing in his expert evidence to say that this development will not generate parking demand. This creates a different situation to that considered in Conti where the evidence was that there was capacity for on-street parking to meet anticipated demand.

53 Mr Cicero referred me to another decision of the Tribunal in Bisagno V Darebin CC [8] to approve the development of 12 dwellings in the Preston Activity Centre with no provision of on site carparking. I have considered that decision and find it has limited relevance to the current case due to the following circumstances:

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The Tribunal considered that the substantial 'car parking credit' (for 70-80 spaces) associated with the previous use of the site for a billiard parlour should be carried forward.

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Expert traffic evidence provided noted that there are unrestricted car spaces within 250m of the review site and opportunity for parking close by, outside of restriction times (between 4.30pm and 10.30am).

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The Local Planning Policy context considered in that case is different, as acknowledged by Mr Cicero.

54 I agree with Mr Cicero that there needs to be a huge cultural shift in the community to encourage use of public transport and that Port Phillip City Council is committed to pursuing mechanisms to achieve more sustainable transport. However the Scheme as it currently exists does not provide specific policy support in relation to waiving of carparking to achieve the aims of sustainable development. In the absence of that specific support and having regard to the significant increase in floor area proposed and amount of car parking sought to be waived, I am not persuaded that the proposal should be supported.

55 I note that the Ratio report includes recommendations that reduced parking provisions rates should be permitted for selected residential developments so as to restrain the level of reliance on private cars. It may be that the Ratio report leads Council to undertake further strategic work on this issue and, via the appropriate planning processes, results in a local policy to address the issues of appropriate conditions and criteria for waiving of car parking. If and when this occurs the outcome may be different.

56 At present the weight of policy in the planning scheme coupled with evidence as to demand leads me to the conclusion that the proposal does not represent an acceptable outcome in terms of the policies and decision guidelines of the Port Phillip Planning Scheme. For the reasons I have set out above, I will direct that no permit is granted.

[1] Ms Marshall submitted that there were two views on interpretation of the Section 1 requirement. Firstly, that an entrance is not frontage and the proposal would meet the Section 1 requirement for use as a dwelling and thus not be subject to a permit. The other view is that an entrance does constitute frontage and the use then becomes subject to a permit under Section 2 of the Zone provisions. I am of the view that the entry and lobby does constitute frontage and as it exceeds 2m in width, a permit for use is required.

[2] Clauses 12.01 A more compact city particularly 12.01-2 relating to Housing;

12.07 A greener city; 12.08 Better transport links; Clause 16 Housing; 18 Infrastructure.

[3] Clauses 21.05-1 Residential Land Use, 21.05-10 Retail Land Use, 22.02 Retail Centres Policy, 22.09 Housing,

[4] Clauses 12.06 A fairer city & 22.09 Housing

[5] Clauses 12.05-2 A great place to be, 15.11 Heritage, 21.05-5 Heritage Conservation, 22.04 Port Phillip Heritage Policy, 43.01 Heritage Overlay

[6] Conti v Port Phillip CC [2003] VCAT 1765 (25 November 2003)

[7] William Street, Balaclava Car Parking Impact report prepared by Council's Sustainable Transport Unit in June 2006.

[8] Bisagno v Darebin CC [2001] VCAT 2234 5 December 2001