[2005] VCAT 733

The decision of the responsible authority in relation to planning permit application No P558/05 is varied.

It is directed that a permit is granted and the responsible authority is directed to issue a permit for the land at 72-84 Upper Heidelberg Road and 1-5 Kiernan Avenue, Ivanhoe VIC 3079

The permit will allow a mixed use development comprising the development of the land (buildings and works) for the purpose of a multi-level building incorporating retail (including supermarket), basement car parking and residential apartments, use of the land for dwellings (residential apartments), a reduction in the standard car parking requirements, vegetation removal, removal of easements and provision of business identification signs.

It is directed that the permit contain the conditions set out in the Notice of Decision to grant a permit issued by the responsible authority on 22 November 2004 modified as follows:

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In condition 1 the following paragraphs are added

(o) provision of a garbage chutes in the northern tower;

(p) Bicycle parking and associated shower and change facilities in accordance with clause 53.34 of the planning scheme;

The works shall not commence until arrangements to the satisfaction of the responsible authority have been made for lawful access over that part of County Lane necessary to provide access to the car parking area accessed from that Lane.

Costs reserved.

Liberty to apply.

Mr H McM Wright QC with him Mr P Chiappi of Counsel instructed by Rigby Cooke, Solicitors.

Mr C Canavan QC with him Mr A Finanzio of Counsel instructed by Ebsworth and Ebsworth, Lawyers

1 Seacrest Pty Ltd and Brastsk Pty Ltd (S & B), the owners of the Ivanhoe Plaza Shopping Plaza (which has a large Coles Supermarket as its major tenant) has appealed[1] against Banyule City Council's (Council) decision to grant a permit[2] to N K Investments One Pty Ltd (NK) to use and develop the land at 72-84 Upper Heidelberg Road and 1-5 Kiernan Avenue, Ivanhoe for the purpose of a mixed use development comprising the development of the land (buildings and works) for the purpose of a multi-level building incorporating retail (including supermarket), basement car parking and residential apartments, use of the land for dwellings (residential apartments), a reduction in the standard car parking requirements, vegetation removal, removal of easements and provision of business identification signs.

2 The application for permit was lodged with the Council on 20 July 2004. Following the giving of notice of the application a number of objections were received. The application was also referred[3] to Yarra Valley Water and VicRoads which made no objection subject to conditions being contained in the permit. The application for review was lodged with the Tribunal on 10 December 2004.

3 No other objector lodged a Statement of Grounds.

4 The current proposal is very similar to a development permitted by permit P205/02 which was issued following a decision of the Tribunal constituted by us.[4] The overall building height is identical, the building footprint similar and the arrangement of the apartments over 4 levels and in 2 separate towers remains consistent. Council's submission identified the primary differences which include

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the introduction of a supermarket at ground level instead of individual specialty shops,

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an increased loading bay area associated with the supermarket,

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a reduction in the number of apartments,

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an increase in the number of off street car spaces, and

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a new access to the parking area for residents from the rear laneway (Country Lane) requiring removal of a small number of elm trees.

5 S & B were parties to the previous proceedings but withdrew when the proposal was amended to delete the supermarket. Their grounds for this application for review related to the reintroduction of the supermarket into the development and its consequences.

6 Those parties or their representatives that attended the hearing as well as the persons called to give evidence tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the Tribunal's file.

7 The following persons gave expert evidence:

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for S & B: Mr Andrew Biacsi as to planning and Mr D Grogan as to traffic.

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For NK: Ms Roz Hansen as to planning and Ms D Donald as to traffic.

8 The hearing of this proceeding occupied 3 days.

9 Mr Wright as a preliminary matter requested NK produce the licence documentation for the access to the rear of the site over Country Lane. He submitted that the Tribunal should be satisfied that the licence is sufficient to allow access sufficient for the development. His client had been informed that there was a limitation on the number of cars that could use the easement under the arrangement.

10 Mr Canavan responded that as this is essentially a commercial objection and as the license documents were confidential NK did not wish to produce them but was willing to accept a condition on the permit requiring that the Council be satisfied there was an access entitlement.

11 We agree with Mr Canavan's submission that the matter should be dealt with by a permit condition and that no production of the document is required at this stage.

12 The site comprised several large vacant lots fronting Upper Heidelberg Road and facing Kiernan Avenue. It slopes from Upper Heidelberg Road, plateaus out two thirds of the way into the site before sloping steeply towards a private lane at the rear, Country Lane, running between the site and the Hurstbridge- Melbourne railway embankment. There is poor quality vegetation on the site and elm trees on the steep section at the rear. There are no restrictive covenants on the title, but part is subject to a Section 173 Agreement requiring the developer to transfer car parking spaces to the council and comply with 2002 Urban Design Guidelines. The site and the locality and details of these arrangements are described in Council's submissions and the witness reports of Mr Biacsi & Ms Hansen.

13 The proposal in summary is for a multi - level mixed use development comprising :

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A supermarket (3465m2) and specialty retail (205m2) at ground level,

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70 apartments over 4 levels above the retail level,

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Basement car park containing 214 car spaces over three levels.

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Associated vegetation removal, removal of easement and display of advertising signs.

14 The proposal is described in detail in Council's submissions and in Mr Biacsi's witness statements.

15 The site is zoned Business 1. Its use for "shop and dwelling" are section 1, permit not required uses. The use of the land for a supermarket is an as of right use, but a permit is required to construct a building or construct or carry out works.

16 The land is affected by three overlays:

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Design and Development Overlay Schedule 7 (DDO7);

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Environmental Significance Overlay Schedule 4 (ESO4); and

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Vegetation Protection Overlay Schedule 3 (VPO3).

17 The decision guidelines of DDO7 require the Council and the Tribunal to have regard to the 2002 Urban Design Guidelines for Ivanhoe Shopping Centre adopted by Council on 8 April 2002.

18 Various clauses of the State Planning Policy Framework, the Municipal Strategic Statement and the Local Planning Policy Framework were referred to in the submissions of the parties and have been considered by us.

19 The triggers requiring a permit are:

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Under clause 34.01-4 for buildings and works in the Business 1 Zone;

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Development within 5 metres of the canopy drip line of the significant trees at the rear of the site under clause 42.01 ESO4;

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For buildings and works under clause 43.02-2 and schedule 7 DDO having regard to the 2002 Urban Design Guidelines.

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Removal of trees at the rear under clause 42.01-2 and clause 3.0, schedule 4 ESO and clause 42.02-2 and clause 3.0, schedule 3 of the VPO;

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Under clause 52.02 for the removal of easements;

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Under clause 52.05 for advertising signs associated with the supermarket as the total area of business signage exceeds 8 sq m and the internally illuminated component exceeds 1.5 sq m. Under clause 34.01-6 the land is in Category 1 (Business Areas - Minimum Limitation);

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Under clause 52.06 for reduction or waiver of car parking requirements.

20 Mr Wright raised the same question of law that was raised in the previous proceedings. The decision on the question of law in the previous proceedings was determined by Senior Member Horsfall (then Deputy President) on 26 June 2003[5].

21 The question of law was whether the s 173 agreement dated 14 July 2000 between the Council and ACS Property Developments Pty Ltd registered on the title of part of the subject land No W925304T was a registered restrictive covenant within the meaning of s 61(4) PE Act. In support of his arguments he reiterated by reference the arguments of Mr Morris QC (now His Honour Mr Justice Morris, the President of this Tribunal) which were set out in the decision. Mr Canavan likewise reiterated by reference the arguments of himself and Mr Finanzio in the previous matter and also on the decision and reasons given by me that neither the s 173 agreement nor any of the covenants forming part of it is a registered restrictive covenant within the meaning of s 61(4) PE Act.

22 Mr Wright did not raise the other question of law dealt with in the previous proceedings, and the parties appear to have proceeded in this matter on the basis that the reference to the Urban Design Guidelines in the s 173 agreement is to be read as a reference to the 2002 Urban Design Guidelines, and we note that in DDO7 the reference to them has been amended accordingly.

23 I have considered the question, the previous decision and the authorities and reached the same conclusion as I did then, namely that neither the s 173 agreement nor any of the covenants contained in it is a registered restrictive covenant within the meaning of s 61(4) PE Act. I adopt as my reasons for that decision the reasons set out in paragraphs 34 - 41 of the previous decision.

24 Following the argument on the question of law Mr Canavan sought leave to amend the permit application to include an application for a permit to amend the section 173 agreement by deleting paragraphs 3.1(1), 3.1(2), 3.1(5) and deleting the words in paragraphs 3.1(4) commencing "provided that" to the end of paragraph 3.1(4).

25 The application was made without prejudice to the primary submission that the section 173 agreement is not a registered restrictive covenant.

26 Leave was given to NK to amend the application and by our order dated 9 March 2005 a direction was given that notice of the application to amend the s 173 agreement be advertised by placing a notice on the land and publishing a notice on the newspaper.

27 At the conclusion of the hearing we reserved our decision on the application for review (except the application to amend the section 173 agreement which remained unheard and undetermined); on the basis that depending on our decision it may be unnecessary to determine the amendment application.

28 Liberty to apply for further consideration of the amendment application was given after the Tribunal's decision on the balance of the matter.

29 We understand that the application was advertised in accordance with the Tribunal's directions.

30 A letter was received from Mrs Robyn Roberts of 53 Waterdale Road, Ivanhoe who wished to be heard if the amendment application proceeds.

31 Mr Wright did not canvass the issues of:

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the meaning of the words in the s 173 agreement generally in compliance with;

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whether under s 62(1)(aa) PE Act the Tribunal could in deciding that a permit should issue, include a condition that the permit is not to come into effect until the s 173 agreement is removed or varied; or

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the effect of an amendment to the s 173 agreement being negotiated between the Council and NK.

32 NK's solicitors by letter of 15 April 2005 sent to the tribunal and to the S & B's solicitors a draft s 173 agreement agreed on by NK and Council.

33 It recites that Council and NK have agreed to end the existing agreement, subject to execution of the new agreement, in order to include the Kiernan Avenue land and acknowledge the changed circumstances since the existing agreement was entered into. Its operative provisions (apart from the usual boilerplate) are that NK agrees to construct the 35 public car parking spaces in accordance with the planning permit for the development, transfer them to Council before the use and development commences, to provide unrestricted access to them, and that the existing agreement will end on signing of the new agreement. These transactions are to be registered on the titles.

34 NK would no doubt contend that once the new agreement is entered into and the existing agreement is brought to an end, any argument that the proposal is prohibited by virtue of the existing agreement being a registered restrictive covenant and it not complying with the existing agreement and the Guidelines falls away, and pursuit of the amendment application becomes unnecessary, but no argument has been put to us on these issues and we make no comment. Also we have not been asked to delay our decision until the new agreement is signed or to include a permit condition under s 62(1)(aa) PE Act.

35 At the end of the hearing Mr Canavan applied for costs, on the basis of a submission that S & B's application for review was a commercial application. He foreshadowed an application under s150 (4) PE Act. The issue was reserved for further argument depending on the decision on the merits.

36 The principle issues in dispute in this matter can be summarised as follows;

i

Is the grant of a permit for a supermarket on the review site premature, given the lack of a structure plan for the activity centre?

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Are the functional and design aspects of the proposal adequate?

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Is sufficient car parking provided and does the layout and design of the car park meet acceptable standards for a functional and safe car park for the proposed use?

38 It was Mr Wrights submission that the proposal to include a supermarket in the development is premature given that a structure plan has not been prepared for this centre as is required under the Melbourne 2030 strategy, and that until a structure plan is prepared, the Tribunal cannot be confident that the review site represents the most suitable site for the provision of a supermarket. It was further submitted that the grant of a permit for a supermarket, a use which has a pre-eminent role in influencing the functioning and structure of an activity centre, would compromise the outcomes of a subsequent structure plan, potentially to the detriment of the centre.

39 Mr Wright relied on a report of the Advisory Committee established pursuant to Section 151 of the Act in relation to a call in of a VCAT Application for Review (P2333/2004) concerning a nine storey residential development in a neighbourhood activity centre in Wheelers Hill in the City of Monash.

40 The Advisory Committee recommended against the grant of a permit, partly on the basis that the proposal was premature in the absence of a structure plan for the centre, and in doing so made the following pertinent observations:

5. Notwithstanding strategic support for the proposal, the Advisory Committee has concluded the proposal is premature because of its location on a key site in the neighbourhood activity centre at Wheelers Hill. The proposal itself, the form of development and its location on a significant landmark site does not present the Advisory Committee with real concerns. It is the location of the subject site within a neighbourhood activity centre that lacks a structure plan, or the benefit of fixed rail or suitable established bus services, or an integrated planning solution, that causes the Advisory Committee to question the appropriateness of the proposal at this stage............

9. The imperative of current Government planning philosophy is that strategic planning for activity centres is important and that development proposals should not be considered in isolation or out of context with surrounding areas, or without public transport support. The Advisory Committee has found the scale of development proposed within the Wheelers Hill Neighbourhood Activity Centre is premature in the absence of a structure plan that seeks to define the extent and future limitations of the centre. Any structure plan must address public transport issues.

41 The Advisory Committee also formed the view that the grant of a permit would in effect set the strategic planning agenda for this and other sites in that centre, and that his would be an undesirable outcome.

42 Mr Wright appropriately acknowledged that the Advisory Committee report is not binding on the Tribunal. In addition to this, we note that the Advisory Committee was particularly concerned about the lack of public transport available to the Wheelers Hill Activity Centre and concluded that a development of the scale and density proposed is not appropriate until such time as public transport services are adequately provided either on the ground or as part of a realistic implementation programme. The Committee concluded that "....providing this form of residential development without strong public transport support compromises some key Melbourne 2030 objectives".

43 We do not think that the issues confronting the Advisory Committee which was considering an application for a high density, nine storey residential development in a neighbourhood activity centre which is apparently poorly served by public transport, are relevant to the consideration of the proposal before us, which involves the location of a supermarket into a previously approved mixed use development in the Ivanhoe Shopping Centre. We note that the Ivanhoe Shopping Centre is very well served by public transport and, as we discuss below, this is an activity centre which has been subject to considerable strategic planning over a number of years.

44 Mr Wright also relied on the evidence of Ms Hansen in support of his submission. It was Ms Hansen's evidence that the review site is located at the southern extremity of the activity centre and is not the optimal site for a supermarket because of its separation from the retail core of the centre, further to the north along Upper Heidelberg Road. Ms Hansen also identified alternative sites within the centre which, in her view, could be more suitable for a supermarket in terms of the contribution that such a use would make to the viability and functioning of the centre. It was Ms Hansen's evidence that the Melbourne 2030 Strategy places an onus on the Council to prepare a structure plan for the centre and that the grant of a permit would be premature until such time as that work has been completed.

45 The importance of a structure plan was emphasised by Ms Hansen because in her view, the existing zoning pattern of the centre which places the review site in a Business 1 zone, is a reflection of the past and that a structure plan preparation process would have the advantage of putting aside the zoning, looking at the centre afresh, and providing a strategic framework for the future. In this context, it was Ms Hansen's evidence that the strategic planning for the centre which has been undertaken by the Council, and in particular the preparation of Urban Design Guidelines which were updated as recently as 2002, falls short of the outcomes expected of a structure plan as envisaged by Melbourne 2030 and the Department of Sustainability and Environment Practice Note on the preparation of structure plans for activity centres.

46 We do not agree with Mr Wright's submission or Ms Hansen's evidence on this matter. The preparation of a structure plan for this activity centre is not a requirement under the planning scheme and we do not think that in the circumstances of this case it ought to be regarded as a prerequisite for the grant of a permit for the proposed development.

47 We agree with Mr Canavan that in determining whether or not this proposal could be considered premature due to the lack of a structure plan, this is a matter which has been recently and comprehensively addressed by the Tribunal in Golden Ridge Investments Pty Ltd v Whitehorse City Council (Mitcham Towers)[6]. In that matter the Tribunal constituted by Morris J, Senior Member Marsden and Member Read, commented on the role of structure plans under Melbourne 2030 in the following terms;

Melbourne 2030 envisages that local councils will review the purpose and function of individual centres and revise planning policies accordingly. It identifies a role for structure planning. This is simply a name for strategic planning which gives direction to the scale and location of development within a centre. Melbourne 2030 notes that careful structure planning will provide a basis for supporting more intensive and varied development without compromising the amenity of surrounding land uses............

We have no doubt that the preparation of a structure plan for an activity centre can encourage appropriate development and promote more certain outcomes. But such a process is unlikely to be a panacea that will avoid the need to make difficult, and sometimes controversial, choices in response to particular development applications. How often have decision makers awaited some new report or study, in the hope that it will provide guidance and certainty, to have those hopes dashed when the report or study is published? Procrastination can be pointless, as well as unfair to affected landowners. We also suspect that too much might be expected of structure planning. Major development decisions concerning residential development are likely to be in the hands of the private sector, and will be motivated by opportunity and profit, not the content of a structure plan which, at best, can only vary the limits placed on development opportunities, not require them to be taken up.

48 The Tribunal in Golden Ridge also referred to the following observations of Sir James Gobbo in Harrod Hughes & Associates Pty Ltd v City of Melbourne[7]:

Tribunals should in my opinion be wary of undervaluing their own acknowledged expertise, experience and common sense in favour of possible future executive or legislative directions, at any rate where there is no policy or proposed amendment in place. It would be the worst of all worlds to have a situation where there was both a mass of detailed directions that inhibit discretion and also an abdication of discretion.

49 There may very well be circumstances in which it could be demonstrated that the grant of a permit for a particular proposal may be premature pending the completion of structure or strategic planning for a locality. The issues addressed by the Advisory Committee for the nine storey residential development at Wheelers Hill referred to previously, serves to highlight circumstances where a major development ought not to be approved until such time as a structure plan is completed. As we have stated above however, we do not think those circumstances apply in the consideration of this application.

50 It is conceivable that such circumstances might also arise where there is a paucity of policy or strategic direction provided by the planning scheme to assist in the exercise of discretion in the consideration of a planning permit application but we do not think this is the case here. In addition to the provisions of the State and Local Planning Policy Frameworks which encourage the concentration of major retail, commercial, administrative, entertainment and cultural developments into activity centres[8], the activity centre is affected by a Design and Development Overlay (DDO7) which requires regard to be had to the "Urban Design Guidelines for Ivanhoe Shopping Centre" adopted by Banyule City Council on 8 April 2002 when considering applications to use, develop or subdivide land in the centre. In terms of suitable land uses the Guidelines encourage uses in this part of the centre which provide active shopfront facades to Upper Heidelberg Road. The Council has also prepared and adopted a Business Plan for the Ivanhoe shopping Centre which is a reference document under Clause 22.05 of the planning scheme. The Business Plan laments the lack of an additional supermarket in the activity centre and identifies this as a weakness which impinges on the centre's ability to meet community needs.

51 This is not an activity centre about which it can be said that its development suffers from a lack of clear strategic and policy direction. The reverse is in fact true and it is apparent that the Council has undertaken considerable strategic planning in an effort to provide direction and certainty with respect to the future development of the centre. We were not referred to any material contained within the planning scheme which leads us to question whether the inclusion of a supermarket into the development of this site would be consistent with the strategic direction of the planning scheme.

52 There is ample information contained in the planning scheme to enable us to exercise the discretion available, noting of course that we do not have to exercise a discretion with respect to the use of the land as a supermarket, because that is a use for which no permit is required.

53 With respect to Ms Hansens' evidence that more suitable sites for a supermarket are available within the centre, we make two observations. Firstly, we disagree that the sites identified by Ms Hansen are any more suitable than the review site and, based on our own observations, we are of the view that they are in all likelihood less suitable because of a range of development constraints impacting on those sites which do not affect the review site. Secondly, there is a long and consistent line of Tribunal decisions which have established that the appropriateness or otherwise of alternative sites for the proposed use, is irrelevant to the exercise of discretion. The Tribunal constituted by Deputy President McNamara and Senior Member Monk has recently undertaken a comprehensive consideration of this principle and reaffirmed it in Mees & Ors v M-Trams and Melbourne City Council[9].

54 For these reasons we are of the view that the submission that the grant of a permit is premature pending the completion of a structure plan cannot be sustained.

55 Ms Hansen was also critical of aspects of the design response for the development. It was Ms Hansen's evidence that the proposal has a poor interface with Country Lane to the rear and that the overall design which was approved by the Tribunal in the previous Application for Review, has been compromised by the incorporation of the supermarket into the development. Ms Hansen's concerns focussed primarily on the retail frontage to Upper Heidelberg Road and the side street, the failure to take up the opportunity to provide a public space at the north east corner of the site, the inward focus of the development as a whole and the lack of street address to the apartment access.

56 As we stated previously the overall design, scale and form of the proposal is very similar to that approved by the Tribunal in the earlier Application for Review and authorised under permit P205/02. The design changes which have been incorporated into the current proposal are of a detailed nature only and are largely a result of the incorporation of the supermarket into the development. We have not been persuaded that these changes make any significant difference to the manner in which this development will integrate with the centre as a whole or with its immediate neighbours. In arriving at this conclusion we have been influenced by the evidence of Mr Biacsi who provided the following assessment of the urban design context for the site and the proposal's design response:

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An active retail frontage to Upper Heidelberg Road has been retained through the provision of two specialty shops at street level, around which the supermarket has been located.

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The interface with the side street (Kiernan Avenue) provides for a transparent, glazed façade treatment and in any event we note that opposite the review site on the northern side of Kiernan Avenue, there is a decked car park, a use and built form which presents very little opportunity for street level interaction in Kiernan Avenue with the review site.

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The provision of a larger public space at the Upper Heidelberg Road and Kiernan Avenue intersection would, in our view, make a very limited contribution to the viability or attractiveness of this centre, and could only be achieved at the expense of retail floor space.

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The interface with Country Lane is heavily influenced by the existence of the elevated railway line just beyond Country Lane and we think that the design response is appropriate to that context.

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Access to the apartments is consistent with the provisions of the planning scheme which encourages limited residential frontage to the street.

57 We had the benefit of evidence on traffic and car parking matters from Ms Donald and Mr Grogan.

58 It was Ms Donald's evidence that insufficient car parking is provided for the retail component of the development. Ms Donald was critical of the surveys undertaken by the applicant's consultant and concluded that the parking requirement had been underestimated by them. A number of layout and functional deficiencies were also identified by Ms Donald and it was her conclusion that there is a shortfall of 55 spaces.

59 We note that Ms Donald's evidence concerning the underestimation of parking requirements for the supermarket was largely based on criticisms of the surveys undertaken by Mr Grogan, and in particular a lack of comparability between the proposal and the centres included in Mr Grogan's surveys. Ms Donald's conclusions were also based on a single survey undertaken by her company in 2003 of a free standing supermarket in Ashwood which revealed a parking demand of between 4.6 and 5.5 spaces per 100 m2 , which compares with the peak parking demand identified by Mr Grogan's research of between 4.53 and 4.84 spaces per 100 m2.

60 Ms Donald acknowledged under cross examination that she had underestimated the floor area of the Ashwood centre and that therefore the pm parking calculation for that centre is 5.05 spaces per 100 m2 rather than the 5.5 spaces per 100 m2 referred to in her evidence.

61 We were not impressed by Ms Donald's evidence on this matter. The reliance in the evidence on a survey of a single supermarket to calculate a peak parking demand for another supermarket in a completely different locational context is, in our view, an unsatisfactory basis upon which to draw conclusions about the adequacy of car parking provision. Any disparity between the parking demand generated by the Ashwood centre and the proposed provision at the review site could be a function of any number of site specific factors, and it is for this reason that surveys ought to be undertaken at different locations and centres to generate a range of calculations, from which conclusions can be drawn.

62 For this reason we prefer Mr Grogan's evidence, notwithstanding the fact that we do acknowledge that the centres which were the subject of his surveys, may not be directly comparable with the development we are considering in this case. We agree with Mr Grogan that it is very difficult for surveys to isolate one particular component (eg a supermarket) from other uses in a centre, but we think that the subject proposal, being located within an existing shopping centre, has more in common with the centres surveyed by him, than the single supermarket surveyed by Ms Donald. We are satisfied that adequate car parking is proposed to be provided.

63 We are also of the view that the layout and access and egress arrangements of the car park to it are satisfactory. Ms Donald provided a very detailed criticism of aspects of the car parking layout but on close examination we find the issues raised by her to be minor and we have not been persuaded by it that there will need to be a reduction in the number of car parking spaces provided. We find the car parking spaces criticised can sill be retained and used in an acceptable manner. For example, issues related to the management of shopping trolley collection and waste collection are perfectly capable of being resolved by way of permit condition requiring the preparation and approval of management plans. This is typically the approach taken in the approval of developments of this type and scale and were not presented with any evidence that would persuade us that such an approach would be unsuccessful in this development.

64 Similarly, we note Ms Donald's acknowledgement that the design of the Upper Heidelberg Road and Kiernan Avenue intersection is ultimately a matter for Vic Roads and that subject to a suitable design, there is no traffic impediment to the approval of this development.

65 The final point we need to address is that relating to the location of 35 public parking spaces required to be provided on site as part of the s 173 agreement affecting the site. It was Mr Wright's submission and Ms Donald's evidence that the provision of these spaces as part of the overall provision of car parking is unsatisfactory and that in order for them to function as public parking available 24 hours per day, they ought to be set aside at a convenient and accessible location within the development.

66 We are satisfied that the 35 spaces have been provided in addition to that required to be provided to meet the parking requirements of the proposed uses. There is little to be gained in our view, in this Tribunal stipulating which of the parking spaces provided on site must be available to the public. This is best determined in the context of a range of management and functional requirements for the development as a whole and in our view, issues of where they are located within the development and the degree to which they are accessible to the public is a matter which is best resolved by the Council in consultation with the applicant.

67 Mr Wright submitted that the section 173 agreement requires car parking to be provided in accordance with clause 52.06 of the Banyule Planning Scheme and that compliance with this requirement would mean that 434 parking spaces should be provided on site. Clause 52.06 does not impose an absolute car parking requirement. To the contrary, the purpose of clause 52.06 is to ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality. To this end, the table at Clause 52.06-5 sets out the number of car spaces required for specified uses but a permit may be granted to reduce or to waive the number of car spaces required by the table. The decision guidelines at clause 52.06-1 require consideration of a range of matters in determining an application, including an empirical assessment of car parking demand. We agree with Mr Canavan that there is no rational basis for a requirement of 434 parking spaces on this site, a requirement which is 25% greater than that which even Ms Donald said is needed.

68 We were urged by Mr Wright to, in the event that were prepared to direct the issue of a permit, impose permit conditions reducing the floor area of the supermarket to that which would correlate with Ms Donald's evidence about the appropriateness of the car parking supply. This would in effect require a reduction in the retail floor area to 3,134 m2 of which 235 m2 would be designated for commercial floor space.

69 For the reasons we have outlined above, we do not think there is any sustainable basis upon which to impose such a requirement.

70 The permit will include the conditions contained in the Notice of Decision to Grant a Permit issued by the responsible authority with modifications which have regard to the submissions and evidence of the parties and the matters which arise from our reasons.

71 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be affirmed subject to minor permit condition changes and a permit issued in accordance with the attached Order.

[1] Application for review under S 82 Planning and Environment Act 1987 (PE Act) against s decision to grant a permit.

[4] Plentie Pty Ltd v Banyule CC [2003] VCAT 1432 (10 October 2003)

[5] Plentie Pty Ltd v Banyule SC [2003] VCAT 750 (26 June 2003)

[6] [2004] VCAT 1076 (7 September 2004

[7] [1992] 8 AATR 85

[8] Clauses 17.01 and 21.04-2 Banyule Planning Scheme

[9] [2004] VCAT 369