a) Allocation of an appropriate number of car spaces on the land to tenancies, with no general (i.e. Unallocated, shared or visitor) car parking spaces to the satisfaction of the Responsible Authority. A limited amount of general spaces may be accepted if sufficient evidence is provided demonstrating excess parking supply above peak temporal demand of all respective uses; > > b) The car spaces that are allocated to each tenancy must be clearly signposted and line marked, with clear delineation between each tenancy's car spaces; > > c) The occupants of a tenancy must ensure that vehicles attending that tenancy are parked within that tenancy's allocated car parking area relating to the tenancy; and > > d) No reallocation of car spaces as amongst tenancies may be undertaken without the prior written consent of the Council.

3. Prior to the occupation of the development, the owner must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 and must make application to the Registrar of Titles to have the agreement registered on the title to the land under Section 181 of the Planning and Environment Act 1987, which provides that;

a) The use of the land must only be for the purpose of a warehouse, motor repairs, trade supplies and food and drink premises in accordance with the endorsed plans, as defined under the Wyndham Planning Scheme, unless with the prior written consent of the Responsible Authority. > > b) The total number of food and drink premises tenancies approved under this permit must not exceed one (1). > > c) The owner or occupier of a lot on the Subject Land must ensure that vehicles are parked within the car spaces that are allocated to that lot on the endorsed plans, and without limitation the owner or occupier of a lot on the Subject Land must ensure that no vehicles are parked within the public road reserve. > > d) The owner and occupier must implement the Car Parking Management Plan that is required under condition 20 of this Permit. > > e) The owner must provide a copy of this permit and the Section 173 agreement to all future purchasers and lessees of the land. > > f) The owner must ensure ongoing compliance with the Section 173 Agreement.

The owner must pay the costs (including Council's costs) of the preparation, drafting, finalisation, signing and recording of the agreement. A copy of Title showing the Dealing number as issued by the Office of Titles must be provided to the Responsible Authority.

1. Drawing from these conditions, and the grounds advanced by the applicant, the issues or questions for determination are:
   1. Should the car parking on the review site be allocated to each tenancy, and if not, is a Car Parking Management Plan required?
   2. Is there a need for a Section 173 Agreement on the land?
2. The Tribunal must decide whether permit conditions should be retained, amended or deleted. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Wyndham Planning Scheme, I have decided to vary the Council's decision, and direct the deletion of the contested permit conditions. My reasons follow.

1. The car parking dispute between the parties is in relation to whether the car parking that is provided on the review site should be allocated to each individual tenancy, or operate as a communal pool of car parking.
2. The Council submits that the car parking should be allocated to each individual tenancy, so as to avoid the scenario whereby one tenancy creates an unreasonable demand for car parking, to the detriment of the other tenancies on the review site and their access to car parking.
3. The Council submitted some case studies of parking problems experienced in similar industrial developments. These case studies identified parking problems occurring in developments which had allocated car parking, and those which had unallocated car parking. Further, in the developments with allocated car parking, the aerial photography submitted by Council demonstrates that in the case studies provided, some car spaces remain vacant on the respective sites, while some cars are either parked illegally outside of the marked car spaces, or on the street. These are undesirable outcomes that can be overcome by not allocating the car parking to individual tenancies.
4. At the hearing a scenario was presented whereby one tenancy has an unexpectantly large demand for car parking, and forces other tenancies to park off site. This was presented as a scenario that argues for the allocation of car parking. However, as explored during the course of the hearing, even where the car parking supply is allocated, this scenario would result in car parking off site. The only difference is that where car parking is allocated, off-site car parking would occur before the on site resource is fully utilised. Whereas in the event of unallocated car parking, the on site resource can be completely utilised, before an off-site demand is generated. As such, even in this scenario, I am persuaded that the applicant's preference to not allocate car parking in this context is the preferred approach.
5. The Council also submits that there is a history in close proximity to the review site of one or more tenancies operating as a vehicle repair business, and using unallocated car parking to repair motor vehicles. To the extent that this scenario is put by the Council as an argument in favour of the allocation of car parking on the review site, this scenario is already separately addressed by Condition 19 on the planning permit, which would require vehicles being serviced to be stored in a building.
6. The evidence of Mr Stone is that car parking should be allocated to each tenancy. Mr Stone provides the following reason for this opinion in his written evidence statement.

It is my opinion that the allocation of the bulk of car parking to individual tenancies is preferred in this context, to preserve the provision of some dedicated car parking for each tenancy.[3]

1. I am not persuaded that the preservation of car parking for each tenancy is an outcome that should be preferred over the efficient use of a car parking resource through the provision of unallocated car parking. Indeed, the Council's submission and case studies has shown that the preservation of car parking for individual tenancies in similar developments, leads to inefficiency in car parking usage, and overflow car parking in public streets and illegal car parking on site while other car parking spaces remain vacant. Further, the case studies and submissions provided by Council demonstrate that the allocation of car parking to individual tenancies and preservation of dedicated car parking for each tenancy, is either more likely, or just as likely to result in car parking problems, as reliance on an unallocated communal car parking pool.
2. Orally, Mr Stone also supports the allocation of car parking on the basis of the convenience associated with having car parking spaces available close to each tenancy. While I appreciate the convenience associated with being able to park immediately in front of own's own workplace, the layout of the approved industrial development does not necessarily allow that to occur, even if allocated car parking were to be employed. Further, the proportions of the review site are not so significant, that even the furthest car parking space from one of the tenancies would be so inconvenient as to represent an unreasonable supply of car parking. For these reasons I am not persuaded by the evidence of Mr Stone, and his reason for supporting the allocation of car parking.
3. I also note that the industrial development to the immediate south of the review site comprise essentially an earlier stage of the industrial development that is now proposed for the review site, by the same developer. Those earlier stages are now complete, are developed with all car parking unallocated. As is the evidence of Mr Furness, and is evident on aerial photography, this has not resulted in any parking problems on that adjacent site. I have not been persuaded by the Council why the particular attributes of the review site demand the allocation of car parking, when unallocated car parking appears to be working very effectively on this adjacent site comprising the earlier stages of this industrial development.
4. In contrast, it is the evidence of Mr Furness that a more efficient use of the car parking supply can occur if the car parking is not allocated. I am persuaded by this evidence, and adopt the following reasons and analysis as set out in Mr Furness' written statement to support the provision of unallocated car parking on the review site.

In my experience with commercial and industrial developments, the rigid allocation of on-site car spaces to individual tenancies or uses often leads to inefficient utilisation of the carpark and can contribute to parking issues. When car parking is assigned rather than shared, spaces may remain unused during off-peak periods for one tenant, while another tenant may simultaneously experience a peak in demand and have insufficient parking. This variance between supply and demand across allocated areas prevents the carpark from operating efficiently as a shared resource.

While the empirical analysis concentrated on 85th percentile demands, the car parking of individual warehouse tenancies varied. Table 7 shows that parking demands by any individual warehouse tenancies varied from:

• a minimum of 0.13 car spaces per 100m2
• an average of 0.63 car spaces per 100m2
• a maximum of 2.2 car spaces per 100m2

The case study data submitted by Impact and presented in my evidence statement for 43 Bonview Circuit, Truganina is generally based on developments where on-site car parking is shared between uses, without fixed allocations. This shared arrangement allows for a natural balancing of demand, and allows for different tenancies to have:

• staggered or alternating peak operating times,
• provide flexibility as some businesses will naturally require more car parking, and some will require less.

This shared, flexible parking model is what created the reduced on-site parking demand observed in the survey data. Allocating parking spaces would negate these efficiencies.

Imposing this condition is more likely to result in on-street parking in Perpetual Street, with overflow demand by individual tenancies able to easily share the on-site parking. Council's conditions appear to be designed to avoid creating on-street parking demand and in my view Condition 20 is counter-productive to this objective.[4]

1. For these reasons I will not require allocated car parking on the review site, and so will allow the deletion of Conditions 1(f), 20, and 21(c) & (d). Of these conditions, Condition 20 can be deleted in its entirety as the only issues sought to be addressed by the Car Parking Management Plan condition, relate to the allocation of car parking to each tenancy.

SECTION 173 AGREEMENT

1. The Council submits that the condition requiring a Section 173 Agreement is appropriate and needed for the following reasons:
   1. Without parts (a) and (b) of Condition 21, the use of land may be converted to other as-of-right land uses under the zone, which may create additional car parking demands on the review site.
   2. To bring the content of the Car Park Management Plan to the attention of future tenants.
2. In my analysis above I have already found that as there is no need for allocated car parking, it follows that there is no need for a Car Parking Management Plan, given the drafting of Condition 20. This effectively deals with one of the reasons for the Section 173 Agreement condition as advanced by Council.
3. Further, while Condition 21(c) as drafted intends to limit the ability for users of the review site to park on the public streets, at the hearing the Council confirmed that this was not its intention, and that the second part of Condition 21(c) should be deleted.
4. That leaves just one reason for the Condition as drafted by Council seeking a Section 173 Agreement. The Council is concerned by the potential car parking implication, arising from a change of land use. This is covered by Conditions 21(a) and (b). I am not persuaded that this condition is required in order to achieve a reasonable and appropriate planning outcome on the review site. I make this finding for the following four reasons.
5. Firstly, the potential for other land uses to be introduced onto the review site is already regulated by Condition 14 on the planning permit, as set out below. I have not been persuaded by the Council's submissions that there is a need to replicate the effect of Condition 14, in a Section 173 Agreement.
   1. Other than with the prior written approval of the Responsible Authority; the buildings hereby approved and shown on the endorsed plans for the purpose of a warehouse or motor repair must only be used in accordance with the warehouse and motor repair land use definitions contained within Clause 73.03 of the Wyndham Planning Scheme.
6. Secondly, I have also not been persuaded that the normal operation of the Wyndham Planning Scheme, that is the ability for new uses to be introduced subject to the table of uses in the zone, and the application of Clause 52.06 of the Wyndham Planning Scheme, should be set aside for a different and more rigorous regime on the review site. That is, the provisions of the Wyndham Planning Scheme have already determined that certain land uses are as of right in this zone, and a certain extent of additional car parking demands should be waived when a change of land use is proposed. I have not been persuaded by the Council's submissions why the review site is so different that it should have a different set of controls and mechanisms, to those that apply to the remainder of the municipality under the Wyndham Planning Scheme.
7. Thirdly, to the extent that the Council's concern may materialise, these concerns are best addressed by having a communal pool of carparking, where there is maximum flexibility for all of the car parking resource to be used and efficiency in the use of the car parking. The efficient use of the approved car parking resource on the review site is an outcome that is consistent with one of the purposes of Clause 52.06 of the Wyndham Planning Scheme, which is set out below.

To promote the efficient use of car parking spaces through the consolidation of car parking facilities.

1. Fourthly, Condition 21(a) as drafted by Council would limit the potential for the tenancies approved for the review site to be utilised for a range of uses that are not core industrial land uses, and which often operate after normal business hours. These may include a place of assembly, a place of worship, or an education centre. In the decision of Thuliwal Transport Pty Ltd v Wyndham CC [2023] VCAT 1135 I found that a dance school was an appropriate use of land in an earlier stage of this industrial development. Given this finding, it follows that I consider that this type of land use should not be prohibited from the review site by way of a Section 173 Agreement, but rather should be able to be considered on its merits, as guided by the Wyndham Planning Scheme. I also note that the Council made no submissions at this hearing that such non-industrial land uses are inappropriate to be considered for the review site.
2. During the course of the written and oral submissions there was also much focus on whether a Section 173 Agreement is required to ensure certain outcomes on the land, having regard to the principles identified in the decision of Benedetti v Moonee Valley City Council [2005] VSC 434. As I have already determined that these conditions are not required on their merits as I do not support the allocation of car parking on the review site, or the further restriction of future alternative land uses on the review site, I do not need to also address the legal arguments around the enforceability of conditions in the absence of a Section 173 Agreement.
3. For these reasons I have not been persuaded by the Council that it is appropriate to restrict the future use of the land, beyond the limitations and requirements placed upon the land by the Wyndham Planning Scheme, and will therefore direct the deletion of Condition 21 in its entirety.

1. For the reasons given above, the decision of the responsible authority is varied, and the contested conditions are to be deleted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Noting that, at the commencement of the hearing, the applicant amended their application for review to withdraw their review of Condition 6(b).

[3] Taken from page 9 of Mr Stone's evidence statement dated 25 June 2025.

[4] Taken from pages 24 and 25 of Mr Furness's evidence statement dated 26 June 2025.