Clause 34.01-1 - use of professional massage services

The subject site is located on the east side of Warrigal Road in an established commercial area of Oakleigh. The site is a narrow rectangular shaped allotment with a frontage of 5 metres and depth of 22.4 metres.

The site contains an existing single storey commercial building fronting Warrigal Road. The front façade is predominately glazed with a single door and an overhanging verandah. There are no car spaces on the site.

The internal layout of the building has a reception/waiting area at the front with three partitioned massage rooms centrally and WC and garage located at the rear of the building.

Angelo Kyriakou v Monash CC [2014] VCAT 1494

1. The application is struck out as misconceived under section 75(1) Victorian Civil and Administrative Tribunal Act 1998 for the following reasons:

1. The grounds of review relate only to car parking and the inadequacy of car parking within the immediate vicinity of the site. 2. Car parking is assessed under Clause 52.06 in the Monash Planning Scheme.

1. The use of therapeutic massage services is not a use set out in the table to clause 52.06-5. Car parking is therefore assessed in accordance with Clause 52.06-5A which provides:

Where a use of land is not specified in Table 1 or where a car parking requirement is not specified for the use in another provision of the planning scheme or in a schedule to the Parking Overlay, before a new use commences or the floor area or site area of the existing use is increased, car parking spaces must be provided to the satisfaction of the responsible authority.

1. The responsible authority assessed the car parking on the basis of similar applications for massage centres and calculated the rate based for a Place of Assembly. The responsible authority considered the appropriate rate of 0.3 spaces per person. Based on this assessment the responsible authority concluded 1 car space is required. As the previous shop use required 4 car spaces and no spaces were provided, the responsible authority considered 'the existing credits for the premises of 4 spaces, is in excess of the demand' and did not require any car spaces to be provided.
2. There is no permit trigger for car parking. There is therefore no ability for the Tribunal to review a decision when there is no permit trigger. There is no ground of review when a decision of the responsible authority is 'to the satisfaction of the responsible authority'.
3. Despite the applicant suggesting it was concerned at the different way the responsible authority had assessed the rate for the car parking and that the provision of car parking related to amenity, as there is no ability to review the responsible authority's decision which is to its satisfaction, the Tribunal has no jurisdiction to consider the application in this instance.
4. The application is misconceived.
5. The applicant's original objection to the responsible authority raised issues of the permit applicant operating a similar business to that of the applicant. The permit applicant submitted such an objection indicated 'the primary concern of the applicant is that the proposed use will be financially detrimental to the three existing operating massage businesses operated by the applicant.
6. The Tribunal previously in relation to the applicant's application for a permit to operate its massage business determined that it was appropriate to waive a total of nine car spaces, lack of car parking not being an issue within this commercial area.[2]
7. It was submitted the applicant only relied upon the issue of car parking when it lodged its application for review. There however appears to be an underlying premise. The applicant cannot therefore reap a benefit, and object to someone else, in the same situation, being accorded the same benefit. This is considered to be vexatious and an abuse of process.

1. The respondent/permit applicant seeks costs in the amount of $8,347.95, being costs associated with a planning consultant engaged by the permit applicant and Mr Peake's fees for advice and appearance.
2. The applicant submitted there should not be an order for costs and that each party bear their own costs in accordance with the provisions of section 109 _Victorian Civil and Administrative Tribunal Act 1998 (_VCAT Act) which provides 'subject to this Division, each party is to bear their own costs in the proceeding'.
3. Pursuant to section 75(2) VCAT Act 'if the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding'.
4. The respondent/permit applicant has been required to engage a town planner and a barrister to refute the application. The applicant was represented by a town planner and had the benefit of advice from that person. It was not refuted that clause 52.06-5A was the appropriate clause for the assessment of car parking and that this was 'to the satisfaction of the responsible authority'.
5. In the circumstances I consider that an amount of $3,000 is reasonable to be paid to the respondent as compensation.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Angelo Kyriakou v Monash CC [2014] VCAT 1494