VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST

/ vcat reference No. P918/2016
Permit no. TPA/44164

CATCHWORDS

Section 80 of the Planning & Environment Act 1987; Monash Planning Scheme;
Number of restaurant seats: parking impacts; residential amenity
APPLICANT / Fat Shing Wu
RESPONSIBLE AUTHORITY / Monash City Council
SUBJECT LAND / 79 Mackie Road, Mulgrave
WHERE HELD / Melbourne
BEFORE / Tracy Watson, Member
HEARING TYPE / Hearing
DATE OF HEARING / 31 October 2016
DATE OF ORDER / 15 November 2016
CITATION / Wu v Monash CC [2016] VCAT 1889

Order

1  The decision of the Responsible Authority is varied.

2  The Tribunal directs that Permit No. TPA/44164 must contain the conditions set out in the permit issued by the Responsible Authority on 31 May 2016 with the following modification:

(a)  Condition 1(a) is deleted.

3  The Responsible Authority is directed to issue a modified permit in accordance with this order.

Tracy Watson
Member

APPEARANCES

For Applicant / Blanche Manuel, town planner.
Ms Manuel called expert evidence from Brett Young, traffic engineer.
For Responsible Authority / David de Giovanni, town planner

INFORMATION

Description of Proposal / This is a retrospective application for a 39-seat restaurant.
Nature of Proceeding / Application under Section 80 of the Planning and Environment Act 1987 – to review condition 1(a) in the permit.
Zone and Overlays / Clause 34.01 – Commercial 1 Zone
No overlays apply to the subject site
Permit Requirements / There is no permit trigger for the restaurant use.
Clause 52.06-3 – The only permit trigger relates to a reduction in the number of on-site car spaces provided.
Relevant Scheme, policies and provisions / Includes Clauses 11, 17, 18, 21.02, 21.05, 21.06, 21.08, 22.03, 34.01, 52.06 and 65.
Land Description / The subject site forms part of a small strip of local shops located on the northern side of Mackie Road, and comprising a total of five businesses. The subject site is developed with a single storey building and two rear at-grade car spaces. The subject site is rectangular in shape with a frontage of 6.0 metres and a depth of 30.48 metres, yielding an overall site area of 185m2.

REASONS[1]

What is this proceeding about?

1  Monash City Council issued a permit allowing a reduction in car parking associated with a restaurant use in May 2016. The planning permit includes a number of conditions, including condition no. 1(a) which requires the submission of amended plans with:

A reduction in the number of seats in the ‘Sitting Area’ to show a maximum of 25 restaurant seats.

2  The plans lodged with the permit application show a 39-seat restaurant. This is a retrospective application, and the existing restaurant is currently operating with a 39-seat capacity. There is an existing planning permit which allows the premises to accommodate 18 seats.

3  The permit applicant has lodged an application for review with the Tribunal seeking the deletion of Condition no. 1(a) from the permit.

4  I note that the restrictions and requirements of the two Covenants (D041291 and D043516) which apply to the subject site have been satisfied and neither of these Covenants are breached by the proposal.

5  Based on the hearing process and all the relevant associated documentation, I consider that the key issue relates to the parking impacts of the proposed increase in the number of seats and its effect on residential amenity.

6  The Tribunal must decide whether Condition 1(a) of the permit should be retained, modified or deleted. Having considered all submissions and the expert evidence, together with the applicable policies and provisions of the Monash Planning Scheme, I have decided to delete Condition 1(a). My reasons follow.

Will a 39-seat restaurant unreasonably impact on parking and the residential amenity of the area?

7  The Council’s position was that requiring a maximum of 25 seats in this existing restaurant is reasonable in order to:

·  Achieve an equitable sharing of the existing on-street commercial car spaces between each of the businesses in the centre.

·  Minimise the use of existing on-street parking located in front of residential properties by the restaurant patrons.

·  Avoid an inappropriate intensification of the centre.

8  It was the Council’s position that an increase in the number of seats in the existing restaurant will result in an intensification of this small centre contrary to its very modest role and function, which is not identified as a neighbourhood centre by the planning scheme.

9  The subject site along with the four other business premises in this centre are zoned Commercial 1. One of the key purposes of the Commercial 1 Zone at Clause 34.01 of the planning scheme is, “To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.” A restaurant use does not require a planning permit under the zone provisions, and the only permit trigger for this proposal relates to a reduction in the number of on-site car spaces provided. By approving a 25-seat restaurant, the Council has supported some reduction, however it has not supported the additional five-space reduction associated with a 39-seat restaurant, as compared to a 25-seat restaurant.

10  The proposal does not include an increase in the floor area of the restaurant, nor does it propose to change the modest operating hours of this existing restaurant. I do not consider that an increase in the amount of seating provided from the approved 25 seats to 39 seats will have any impact on the role and function of this modest-sized centre. A 39-seat restaurant, in a single fronted/ single storey building, is appropriate for a small-scale commercial strip, and is consistent with its commercial zoning and policy settings.

11  There are 19 on-street public car spaces which abut the existing centre, located along either Mackie Road or Medoro Grove.

12  The Council arrived at its position of supporting a 25-seat restaurant by applying a methodology whereby: each of the six shopfronts was allocated an equal share of the existing 19 spaces (that is, 3 spaces each); and the existing 2 on-site car spaces of the subject site, along with its parking credits, were taken into account.

13  I disagree with this methodology as Clause 52.06-6 of the planning scheme clearly sets out the matters to be considered by the decision-maker when deciding if it is appropriate to reduce the number of on-site car spaces provided. These matters do not refer to the notion of an ‘equitable’ sharing of public car spaces by each of the abutting commercial premises.

14  It was also Council’s position that currently at peak periods, the parking demand generated by the existing commercial centre exceeds the supply of 19 on-street spaces directly abutting the existing businesses, and that consequently there is existing overflow parking into the residential areas. It was the Council’s position that the extent of further overflow parking should be minimised in order to protect residential amenity.

15  Finally, Council submitted that the proposed 52-seat restaurant at no. 71 Mackie Road (which currently operates as a milk bar) should be considered in any analysis of the parking impacts of the proposal on the subject site. I disagree with this as there is still considerable uncertainty about the ultimate use and development of no. 71 Mackie Road. This is because the current permit application relating to 71 Mackie Road is before the Supreme Court in relation to a covenant issue.

16  I consider that the key purposes of the car parking provision at Clause 52.06 of the planning scheme are:

To ensure the provision of an appropriate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality.

To ensure that car parking does not adversely affect the amenity of the locality.

17  The existing commercial centre is surrounded by residential properties which are located in the General Residential Zone. I note that the notification of the planning application resulted in no objections from residents being lodged with the Council.

18  Mr Young prepared traffic evidence in relation to this matter, and I agree with his analysis and conclusions. His expert evidence statement included car parking surveys undertaken on Friday 29 April 2016 and Saturday 30 April 2016 from 11am to 10pm along both sides of Mackie Road (between Springvale Road and Wattle Grove) and along both sides of Medoro Grove (between Mackie Road and the court-bowl). In these areas there is an existing supply of 58 on-street car spaces, including the 19 spaces located directly in front of the existing businesses. This survey showed that, at the 7.00pm peak time on the Friday, 45% of these existing on-street spaces were occupied, and that at the 6.45pm peak time on the Saturday, 32% of these existing spaces were occupied. In other words, the expert traffic evidence is that the parking demand generated by a 39-seat restaurant can be readily accommodated by the existing nearby on-street car spaces.

19  I do not consider that cars parking in front of the existing nearby residential properties in order to access the restaurant will result in any unreasonable residential amenity impacts. The permitted hours of operation of the restaurant is limited to a 10pm closing time, Wednesdays to Sundays. Importantly, all of the nearby residences provide ample on-site car parking due to their typically long driveways accessing rear garages. This means that the existing residents (and their visitors) do not rely on the public on-street parking. Whilst it is not determinative (as I need to reach my own conclusions about the proposal), I do consider it noteworthy that no objections were received by the Council from residents.

20  I therefore find that the reduction in car parking associated with a 39-seat restaurant (compared to the Council approved 25-seat restaurant) will not result in any unreasonable residential amenity impacts as a consequence of utilising the existing on-street car spaces located in front of nearby residences.

Conclusion

21  For the reasons explained above, the decision of the Responsible Authority is varied by deleting Condition 1(a) from the permit.

Tracy Watson
Member
VCAT Reference No. P918/2016 / Page 6 of 6

[1] I have considered the written and oral submissions of all the parties that appeared, the written and oral traffic evidence, and all of the exhibits tendered by the parties. I do not recite or refer to all of the contents of those documents in these reasons.