1. The decision of the responsible authority in relation to permit application no. P46/2010 is set aside. A permit is granted in relation to land at 2-6 Centreway Mordialloc. The permit will allow
   • To construct buildings and works on this site and to use for a hotel on land designated as within a Special Building Overlay and a Heritage Overlay, with a waiver of car parking requirements pursuant to clause 52.06 of the planning scheme generally in accordance with the endorsed plans and subject to the conditions contained in Appendix A.

Mr Peter Soding, town planning consultant, Tixxis Pty Ltd.

To construct buildings and works on this site and use for a hotel on land designated as within a Special Building Overlay and a Heritage Overlay, with a waiver of car parking requirements pursuant to clause 52.06 of the planning scheme.

Application under Section 77 of the Planning and Environment Act 1987.

Design and Development Overlay Schedule 10 - Mordialloc Activity Centre (DDO10).

The site is located on the north east corner of Centreway and Beach Road Mordialloc. It comprises of three lots and has an area of 659 square metres.

The site is currently used as a hotel, the Bay Hotel. The site currently provides a total of six on site car spaces.

The surrounding area is diverse with residential dwellings, the foreshore reserve and the Centreway shopping centre.

Eddie Barron Construction PL v Pakenham CC (1990/04167) [1990] VICCAT 3 (14 November 1990)

1. In December 2009, the Kingston City Council determined to refuse to grant a planning permit for the proposed works on the site for use as a hotel and waiver of car parking and bicycle requirements. The proposal was refused on several grounds including objection to the proposed waiver of car parking requirements, detrimental impact on the amenity of the neighbourhood, over development of the site and number of patrons is excessive. It is a decision that the permit applicant requested be reviewed by the Tribunal. The decision of the Council was supported by a number of objectors.
2. The matter was subject to a Tribunal mediation where it was resolved that:

The matters the Tribunal will consider at the merits hearing are limited to the provision of car parking. Council's draft permit conditions (as provided to the Tribunal by letter dated 1 October 2010), with the exception of Condition 3, are not to be contested.

1. Condition 3 of the draft permit conditions as identified above reads:

Prior to the commencement of works the Owner of the land must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to provide for a car parking contribution for the provision of 10 car parking spaces within a public car park in Mordialloc, to be constructed by Council. All costs associated with the Agreement will be borne by the owner.

1. Therefore, this matter before me relates to the matter of car parking. At the commencement of the hearing, Mr Soding, submitted that Council is not pursuing the draft condition 3 above, but rather a more simple one which would require:
   • The provision of 6 car spaces to be provided to the satisfaction of the Responsible Authority.

1. This is a confined matter before me. Essentially the question is whether it is appropriate to waive 6 car spaces and should the loss of the 6 spaces on site be replaced off site?
2. It was put to me by Mr Soding that Council was not opposed to the waiver of car spaces as required under clause 52.06 but the issue is the reduction or loss of the on site 6 car spaces. Put in simple terms, Mr Soding submitted that these 6 spaces need to be replaced by car parking within the public realm and paid for (in some form) by the permit applicant.
3. As it is today, the site provides accommodation for 6 long term car spaces. It is acknowledged that these spaces provide long term parking for staff. Photographs tendered detailed the use of the spaces and this was not disputed by the permit applicant.
4. Mr Soding submitted that the request for 6 spaces to be provided within the public realm is supported by planning policy. The local planning policy framework particularly at clause 22.14[2] establishes precinct policies. It is policy of Precinct 2 Centreway Gateway to:

Encourage the development of additional car park areas.

1. The policy reference is the Mordialloc Pride of the Bay: A Structure Plan for the Future of Mordialloc, 2004. This document makes several references to the Centreway Precinct including:

Traffic and parking elements are designed to increase the overall number of vehicle parking spaces for the precinct, while facilitating vehicular access to core retail activities within the centre.

1. Parking initiatives within the document include the reconstruction of Centreway to provide 90 degree angle parking along the street and construct a car park deck north of Centreway. This latter option requires the acquisition of properties, which Mr Soding advised, had occurred. The timing of this latter project was highlighted as priority 3: medium, 2005-2020. I further note that the document details the implementation of this document[3] will be through the development of controls incorporated into the Kingston Planning Scheme and a range of public and private sector projects.
2. Mr Larkins submitted that the loss of the 6 on site car spaces could be absorbed in the existing public car park within the surrounding area. Through evidence by Mr DeYoung, it was put to me that it is appropriate to waive the 6 car spaces and there is adequate existing off site car parking to cater for the 6 car spaces in the 85th percentile of time throughout the year.
3. In evidence, Mr DeYoung submitted that in providing car parking you do not cater for the 100th percentile or the peak times of the year. That is you do not provide enough car parking for Christmas time at Chadstone. In this case, you do not provide enough car parking for a sunny 40 degree day where the number of beach goers is 'not the norm' because for 85 percent of the time, there would be too much parking.
4. His parking surveys indicated vacant car spaces. It needs to be noted that as Mr Soding highlighted, the survey times do not correspond with the peak time of the hotel and that no further surveys had been undertaken. Mr DeYoung submitted that in his opinion, the survey times did however correspond with the peak times of uses in the surrounding area and in any case, at the 9.00pm peak time of the hotel, there would be available car parking.
5. In considering the waiver and loss of the car parking spaces, Mr Soding was of the view that clause 52.06 is of little assistance as it is silent on the issue of the loss of spaces. Mr DeYoung however offered the view that it is back to basic principles when considering this issue and I can be guided by the decision guidelines. The decision guidelines do offer some assistance it that it describes issues for consideration including any relevant parking precinct plan, the availability of car parking in the locality, an empirical assessment of car parking demand and any credit that can be allowed.
6. I have considered the submissions and evidence before me and find that the loss of 6 car spaces in this locality is reasonable as they can be provided for within the existing car parks within the surrounding area.
7. The strategic work that Council has undertaken in relation to the Mordialloc Pride of the Bay: A Structure Plan for the Future of Mordialloc, 2004 strategy and the identification of future car parking options should be commended. However the requirement for 6 car spaces to be provided to the satisfaction of the responsible authority is an unacceptable condition. Mr Soding detailed that there are many options to provide these 6 car spaces ranging from line marking to a contribution to a new deck car park. However, at this stage, there was no detail provided as to what or how Council wanted the 6 car spaces provided. There is no car parking precinct plan or development contributions plan detailing the requirement and cost involved.
8. Mr Larkins submitted that to impose such a condition, it needs to meet 4 criteria as set out in the Eddie Baron[4] case and in this case, he submitted, it does not. In Eddie Baron, the Tribunal considered that four criteria emerge as being essential if a money payment in the form of a development levy is to be validly imposed as a planning permit condition. It was identified that the 4 criteria include need, equity, accountability and nexus. I am persuaded by Mr Larkins that the current condition does not demonstrate that the criteria as identified have been met. I am persuaded that whilst Council has identified in a reference document further car parking to be provided in the surrounding area, it has not identified how it is to be provided, how a development contribution is to work and how it is to be implemented within the planning scheme.
9. I have concerns with Council's submission that there is no development contributions plan and/or parking precinct plan for Mordialloc to ensure that funds are to be collected in a fair and equitable manner. I further have concerns as to how Council is accountable in implementing its car parking options as identified in the Pride of the Bay strategy document. In the absence of proper analysis of the option in how Council want 6 car spaces provided, what is being sought for by Council is a signed blank cheque from the permit applicant. This is clearly unacceptable.
10. I am persuaded by the evidence of Mr DeYoung that the 6 spaces can be accommodated within the surrounding locality in all but the peak time or extreme cases of being in a beach locality i.e. 40 degree day when all and sundry are at the beach. I note that the public parking, in some cases requires payment and that some car parks allow for long term parking.

1. Having regard to the above, I will order that condition 3 be deleted. The decision of the responsible authority will be set aside and a permit issued subject to conditions.

To construct buildings and works on this site and to use for a hotel on land designated as within a Special Building Overlay and a Heritage Overlay, with a waiver of car parking requirements pursuant to clause 52.06 of the planning scheme in accordance with the endorsed plans.

1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans submitted with the application, but modified to show:
   • (a) the provision of a full colour, finishes and building materials schedule (including samples) for all external elevations of the proposed building;
   • (b) the provision of an amended management plan outlining the following information:
     • (i) Amplified music;
     • (ii) Car parking;
     • (iii) Amenity of the neighbourhood;
     • (iv) Complaints/incident reporting;
     • (v) Liquor licensing/responsible service of alcohol;
     • (vi) Minors;
     • (vii) Signage;
     • (viii) Video surveillance;
     • (ix) Hours of operation;
     • (x) Patron numbers;
     • (xi) Queuing of patrons;
     • (xii) Emergency access;
     • (xiii) Discrimination;
     • (xiv) Health;
     • (xv) Maintenance/cleanliness;
     • (xvi) Security against theft/break-ins;
     • (xvii) Essential services;
     • (xviii) House rules;
     • (xix) Smoking.
   • (c) The provision of a security camera on the south-east side of the building overlooking the right-of-way to the rear of the site;
   • (d) The relocation of the existing air conditioning units to the roof above the cool room/kitchen with these air conditioning units screened in accordance with the recommendations of the acoustic report prepared by Burton Acoustic Group dated 1 February 2010;
   • (e) The location and height of the acoustic walls as recommended in the acoustic report prepared by Burton Acoustic Group dated 1 February 2010 clearly shown on the elevations.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Conditions required by Melbourne Water:
   • (a) No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses;
   • (b) Unless otherwise agreed in writing by Melbourne Water, finished Store Room, Cool Room and Keg Room floor levels must be a minimum of 300mm above the applicable flood level;
   • (c) Prior to development, amended plans showing existing and proposed floor levels to Australian Height Datum (AHD) must be submitted to Council and Melbourne Water addressing Melbourne Water's conditions.
4. The development and/or use of the site must not cause nuisance or be detrimental to the amenity of the neighbourhood by the emission of noise. In this regard the emission of noise must comply with the provisions of the Environment Protection Authority.
5. The "Permissable Noise Levels" as established in accordance with the State Environment Protection Policy No. N-1 must not be exceeded.
6. The requirements of the State Environment Protection Policy no. N-2 (Control of Music Noise from Public Premises) must be complied with at all times.
7. The applicant must prepare a Management Plan detailing how the operators of the hotel will deal with issues related to noise, anti social behaviour on the site and in the surrounding streets, with this Plan is to include contact details (telephone numbers) of management on duty at any one time, with this plan to be endorsed as part of the planning permit, to the satisfaction of the Responsible Authority.
8. Without the prior written consent of the Responsible Authority no form of public address system or sound amplification equipment must be used in the outdoor bar area so as to be audible outside the premises.
9. The closing hours of the outdoor bar area must be restricted to 11.00pm.
10. Unless with the written consent of the responsible authority, no more than 367 number of patrons are allowed on the premise at any one time.
11. The amenity of the area must not be detrimentally affected by the development through the:
    • (a) Appearance of any building, works or materials.
    • (b) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
    • (c) Presence of vermin.
12. Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.
13. No goods or packaging materials must be stored or left exposed outside the building so as to be visible to the public from a road or other public place.
14. The proposed building addition must be constructed and thereafter maintained in materials, styles and colours compatible with the existing building, to the satisfaction of the Responsible Authority.
15. All external surfaces of the building elevations must be finished in accordance with the schedule on the endorsed plans and maintained in good condition to Council satisfaction.
16. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
17. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
    • The development and/or use is not started within 2 years from date of permit issue.
    • The development is not completed within 4 years from date of permit issue.
18. In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

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

[2] Clause 22.04 Mordialloc Activity Centre Policy

[3] Mordialloc Pride of the Bay: A Structure Plan for the Future of Mordialloc, 2004

[4] Eddie Baron Constructions v Shire of Pakenham 6 AATR 10.