VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P306/2024
	
CATCHWORDS	
Interim enforcement application – section 120 Planning and Environment Act 1987 (Vic) – gym – patron numbers exceeding condition of permit – car parking – detriment to amenity – undertakings – request to amend permit 	

Applicant / Responsible Authority	Monash City Council	
Respondents	Derrimut 247 Gym (VIC) Pty Ltd	
	Maricom Pty Ltd (ACN 158 519 807)	
SUBJECT LAND	1686 Dandenong Road
OAKLEIGH EAST  VIC  3166	
HEARING TYPE	Hearing	

DATE OF HEARING	8 May 2024	
DATE OF ORDER	15 May 2024	
CITATION	Monash CC v Derrimut 247 Gym (VIC) Pty Ltd [2024] VCAT 455	

Order
Interim enforcement order refused
1	The application for an interim enforcement order pursuant to section 120 of the Planning and Environment Act 1987 (Vic) is refused.
Record of undertakings
2	The Tribunal records the following undertakings given to it by Peter Kargas, Operations Manager for the First Respondent to apply on an ongoing basis until discharged by the Tribunal: 
I, Peter Kargas, on behalf of Derrimut 247 Gym (Vic) Pty Ltd undertake to the following measures until such time as Monash City Council’s (Council) final enforcement application is heard and determined: 
1	Continue the employment of two security guards to monitor capacity and legal parking arrangements at the Subject Land between 5:00pm – 9:00pm on Monday to Friday.  
2	Continue to direct the staff to continue to make no fewer than three manual patron counts at the Subject Land during peak periods and to supply the result of those counts to Council upon request. 
3	Continue to direct the staff to place parking diagrams throughout the gym, on the TV screens and on the gym’s social media. 
4	Continue to implement the draft Traffic and Patron Management Plan (which is currently being revised in response to Council’s response for further information), which includes but is not limited to:  
a) 	Include information showing the car parking areas available to patrons of the gym upon joining the gym. This is to include a map of the car parking areas. 
b) 	All members will be advised upon joining the gym to keep noise levels to a minimum when moving between the gym and car parking areas. 
c) 	Communicate parking policies and issues to patrons through email newsletters, social media and signage updates as required.
d) 	Include a section within patrons’ contracts to ensure that they are aware of the car parking areas available to the gym and their responsibility to park legally and within the correct car parking areas.
5 	Use my best endeavours to secure legally binding entitlements to use the car parking on common property when those spaces are not in use by other tenancies of the owners corporation that includes the Subject Land.  
6	Not allow any more than 295 patrons to be present within the gym at any one time on weekdays between 7am and 6pm. 
7	Not allow any more than 365 patrons to be present within the gym at any one time on weekdays from 6pm to 7pm. 
8	Not allow any more than 440 patrons to be present within the gym at any one time on weekdays from 7pm-7am and on weekends.  
Costs 
3	Costs are reserved.
Amendment, withdrawal or consolidation of proceedings
4	Leave is granted to the responsible authority to amend its application for enforcement order pursuant to section 114 of the Planning and Environment Act 1987 (Vic) in the current proceeding by 28 May 2024.  
5	By 28 May 2024, the responsible authority must advise the Tribunal and the respondent whether it wishes to progress or discontinue this proceeding relative to Application No. P1561/2023 in respect of the same land and subject matter, including whether it wishes to reallocate both fixtures in that proceeding to the current proceeding.  

Dalia Cook
Member	
Appearances
For Monash City Council	Jason Kane of Counsel instructed by Hall & Wilcox	
For Derrimut 247 Gym (VIC) Pty Ltd	Alex Gelber of Counsel instructed by Norton Rose Fulbright	
For Maricom Pty Ltd (ACN 158 519 807)	No appearance	
 
Reasons 
Background
1	The land has the benefit of a planning permit allowing a change of use to a restricted recreation facility (gym) which was granted in 2022.  
2	A condition of the permit - condition 4 - limits patron numbers to a maximum of 180 at any one time, except with the further written consent of the responsible authority. 
3	It appears from the application and assessment documentation that the patron numbers fixed under the permit were referable to the number of car parking spaces that were available for use by patrons of the facility, at a rate of 0.3 per patron.  
4	However, I was advised that the physical capacity of the premises is far larger, as confirmed by the certificate of occupancy.  
5	Late last year, Monash City Council (‘Council’) received a number of complaints from nearby businesses and residents which led to investigations about patron numbers at the premises.  They were recorded by Council officers at a maximum of approximately 440 at any one time. 
6	Council lodged an application for interim enforcement order (P1561/2023) seeking compliance with the patron number requirement in condition 4.  It withdrew that application before hearing on the basis of an undertaking given to it by the gym operator that it would employ security staff at peak times to manage members and parking. 
7	However, these measures were not put in place by the gym operator and Council subsequently lodged a fresh application for interim enforcement order in 2024, being the current proceeding.  Once again, it sought both an interim and final order limiting patron numbers at the gym to 180 at any one time unless increased by Council. 
8	In the meantime, the permit holder lodged an application with Council for secondary consent to increase patron numbers under the permit condition, but Council did not accept this as an appropriate mechanism.  
9	The permit holder then lodged an application to amend the permit under section 72 of the Planning and Environment Act 1987 (Vic) (‘PE Act’), to increase parking provision (including by using nearby land for parking for the gym) with consequential increases in patron numbers.  
10	I was advised that Council recently made a request for further information in respect of the s72 application, which falls due by 6 June 2024.  It is likely the amendment application will be advertised to nearby owners and occupiers. At this stage, Council estimates to make a decision on the request to increase parking provision and patron numbers in late August/early September. 
11	At the first hearing of this interim enforcement application in early April, parties agreed to adjourn the hearing.  
12	In the circumstances, I was only prepared to agree to such adjournment if the operations manager of the gym (Peter Kargas) gave undertakings to ensure that reasonable measures were in place to manage patrons in the interim. These are recorded in my earlier reasons. 
The current proceeding
13	Council now seeks an interim enforcement order from the Tribunal to require condition 4 to be complied with.  
Summary of party positions 
Council
14	Council submitted there are public policy grounds for the Tribunal to require the permit holder to comply with a condition it has accepted.  It suggested this should be given priority over the possibility the condition may be amended to allow increased patrons, adopting reasoning of the Tribunal in Stonnington CC v Blue Emporium Ltd & Ors.  
15	It was also concerned about the potential risk of harm associated with increased patrons through parking, traffic congestion and other disturbances to neighbours.  This was considered heightened if patron numbers were uncapped and could continue to increase between now and the resolution of the application for final enforcement order.  
16	Council relied on written submissions and the affidavit of a Council officer indicating that patron numbers exceeded 180 on two recent occasions.  It also relied on some older complaints and enquiries to Council which had been redacted (dating from late 2023 to early 2024). 
17	Council submitted that it was not seeking an order requiring the business to cease, it was merely asking for it to operate in accordance with its conditions.  
The respondent
18	The respondent did not contest the fact there has been and continues to be a breach of condition 4.  
19	However, it submitted that the Tribunal should decline to make an interim enforcement order in the exercise of its discretion in circumstances where:
•	there is no urgent case or immediate risk of harm;
•	there are ongoing measures in place to reduce impacts of additional patrons, noting that Mr Kargas’ undertakings on behalf of the respondent would be maintained and supplemented; and 
•	the question of whether a ‘final’ order should be made is more suitably considered in a full hearing, including in the context of the amendment application which would formalise the availability of additional parking facilities. 
Binding undertakings to the Tribunal
20	As I explained at the hearing, a formal undertaking to the Tribunal is binding on the person giving it and non-compliance could constitute contempt.  
21	In this instance, the undertakings to date have been recorded in orders made in the proceeding.  
22	In many ways, a detailed undertaking by an ongoing operator that restricts the use of land can have an equivalent effect to an interim enforcement order, although it tends to be offered by consent and does not formally attach to the land. 
23	In this instance, I am satisfied that there is a very high likelihood the same operator will continue at the premises until a final determination by the Tribunal. 
24	I spent time during the resumed hearing with parties exploring the potential for further undertakings to be made to provide for a suitable ‘holding position’ until agreement is reached or a full merits hearing for the application for enforcement order is held. 
25	In my view, the Tribunal needs to approach the making of an interim enforcement order in exactly the same terms as the final order in the proceeding with some caution, especially since the Tribunal would not have the benefit of complete submissions and evidence before it. 
26	I explored this as a potential practical alternative in the event I may decline to make an interim enforcement order in the same terms as the enforcement order sought.  
27	In response, Mr Kargas confirmed his commitment to the previous undertakings, and supplemented them at the resumed hearing.
28	I also queried whether it may be appropriate for the operator to give an undertaking to cap patron numbers during peak times, albeit at a figure above 180.  
29	Provisional undertakings 6 and 7, to cap patron numbers, were considered unnecessary by the respondent and were only offered if the Tribunal called for it.  
30	Mr Gelber explained the maximum numbers offered were loosely calculated on the basis of off street car parking spaces said to be available to the gym after peak hours, as well as on street parking.  
31	It also appears to me that they were principally intended to maintain (actual) existing patron numbers as an interim measure if required.  
32	Council submitted that the further undertakings should be rejected in favour of an interim enforcement order reducing patron numbers to 180, since there were no guarantees of additional lawful parking availability and there would still be capacity for any additional patrons to cause detriment to commercial and residential neighbours.  
33	It also pointed out that the patron numbers in the updated undertaking were higher than sought in the amendment application. 
34	The respondent originally replied that the lower numbers would only be achievable once other management measures were implemented as part of the amended permit sought.  
35	I provided a further opportunity to the respondent to either provide an updated undertaking to cap maximum patron numbers in line with the permit amendment application to Council, or to make submissions as to why the Tribunal should not consider this as an alternative form of order. 
36	Solicitors for the respondent then confirmed Mr Kargas would give an undertaking to cap maximum patron numbers in line with the permit amendment application to Council. 
Tribunal assessment
37	In determining applications for interim enforcement order, case law refers to similar factors to interim injunction proceedings.  This approach was supported by the parties.  
Serious question to be tried
38	The first question is whether there is a serious issue to be tried, which involves consideration of the jurisdiction of the Tribunal, whether there is a prima facie breach of the permit and the probability of the application for enforcement order ultimately being successful.  
39	The respondent did not deny there was a serious issue to be tried.  It did not contest the fact there was an ongoing breach of condition 4.  
40	The Tribunal clearly has jurisdiction in the current proceeding since there is clear evidence of non-compliance with the permit.  
41	As to the likelihood of a final order being made in the terms sought in the application under section 114 of the PE Act, it is highly likely a final order would require compliance with the maximum patron number condition if the permit was not amended.   
42	However, I accept Mr Gelber’s submission for the respondent that it is not certain that such an order would be made, given the amendment application before Council and the earliest opportunity for a full hearing. 
43	If the primary consideration in fixing maximum patron numbers remains parking availability, it is clear that there are a number of sites that have been secured by the operator or are in the process of being formalised to notably add to the supply of off-street parking for use by the gym at peak times.  
44	However, the success of the amendment application relative to the enforcement application seeking to preserve the status quo will depend in part on its timing and outcome.  
Balance of convenience 
45	I have also considered where the balance of convenience lies, including ‘what would the effect of not making the interim order be’?  Should an undertaking for damages be given?  Overall, which course of action carries the lesser potential for injustice pending final orders? 
46	In some ways, this is a challenging case because of the obvious and ongoing breaches of condition 4 relating to maximum patron numbers.  
47	It appears there is a fundamental problem of oversubscription – with over 14,000 current members despite a permit limitation of 180 patrons at any one time.   
48	On the respondent’s own evidence, there were a maximum of 437 patrons counted in the premises at peak hour the night before the resumed hearing.  This is not an unusual trend for this premises, although average numbers are clearly less.  
49	This is a problem of the respondent’s own making, relative to the permission it applied for and was granted.  
50	However, there is no evidence at the present time that an excess of patron numbers inside the facility is causing any detriment to neighbouring properties.  
51	Whereas, at the time the first interim application was lodged by Council, there was uncontested evidence of disturbance to nearby businesses, to people using common property and public land in the vicinity and in terms of unacceptable traffic and parking impacts.  
52	By contrast, at the date of the resumed hearing, all evidence relied on by Council indicated that all vehicles associated with the gym were parked lawfully.  There was no evidence of any other disturbance, notwithstanding actual patron numbers as high as 437 the evening before the hearing.  
53	Mr Kargas gave evidence he was not aware of any complaints made to the business about gym operations in recent months.  
54	Likewise, Council did not identify any relevant complaints or enquiries in recent months, as distinct from the vast majority of complaints referred to in the earlier proceeding which were made in late 2023, and a smaller percentage in early 2024.  
55	There had also been a number of recorded ‘enquiries’ to Council in late 2023 and early 2024, such as requests to consider additional traffic management measures such as ‘no standing’ signs to ease parking concerns around businesses and residences.  Council did not identify any similar enquiries in recent months.  
56	I find that the evidence in this resumed hearing indicates a marked change from the situation when the first interim application for enforcement order was lodged.  
57	I agree with submissions for the respondent that this tends to indicate that the undertakings, which include regular security guards and additional management measures, have been effective in the past few weeks to prevent detriment to the nearby area.  
58	Likewise, while I need to be careful about the motivations behind an untested statutory declaration tendered on behalf of the respondent, it appears that the gym’s relationship with the adjacent child care centre has improved.  
59	The child care centre now explained it has been able to wind back management measures on their premises.  It was also prepared to work with the gym to give it access to its allocated parking after hours. 
60	It is possible that if the use was not restricted to 180 patrons pending a final determination and was not suitably controlled that some of the earlier negative behaviours may re-emerge, such as unlawful parking, poor patron behaviour outside the premises or the like.   
61	This would have the potential to cause disturbance to the operations of nearby businesses and the amenity of local residents, noting that the premises operates within an Industrial 1 Zone on the periphery of a residential zone to its south west. 
62	One practical challenge for the gym operator is that when it sought to restrict patron numbers in the past, this led to unruly behaviour by some patrons on common property or in the public domain as confirmed in evidence by Mr Kargas, including to neighbours and staff.  Documents filed on behalf of Council referred to at least one attendance by Victoria Police. 
63	It is highly feasible that patron behaviour outside the gym may itself lead to disruption if paying members were turned away on arrival because of the numbers constraint (180) associated with an interim order as sought.  This would necessitate a very significant reduction in the number of patrons compared with those who actually attend.  
64	While security guards could assist with managing maximum numbers, it would introduce capacity for detriment on public or common land if not managed carefully as part of broader management changes within the gym and a fulsome review of its overall membership model and operation.  
65	I accept that an interim order could potentially risk the gym’s reputation and cause financial loss, including potential action for breach of contract, if the gym was required to enforce the 180 patron limit at this stage.  However, the respondent did not produce evidence to quantify these potential effects. 
66	The question is whether these potential effects are reasonable as a consequence of seeking to remedy the alleged harm from the breach of permit, or to meet public policy objectives to comply with planning permissions.  
67	Another question is whether the updated undertakings offered would be sufficient to control the effects of additional patrons until the compulsory conference or final hearing.  
68	They are in the nature of bespoke orders I would otherwise have made if not offered by the respondent.  
69	A further complicating consideration in this proceeding is the weight to be given to the amendment application before Council.  
70	On its face, there appears to me to be a reasonably high probability the respondent could obtain support for a meaningful increase in patron numbers under the permit if additional car parking was provided as proposed.  
71	Mr Kargas’ affidavit indicates the company has secured a lease of nearby land with capacity for parking 75 additional vehicles.  The permit application has been amended to include this and potentially other land. 
72	However, the outcome of this amendment application is not certain and the uplifted numbers are unknown, as are the more detailed patron and parking management measures that would be required to support this.  
73	Another consideration is that Council was not prepared to offer an undertaking as to damages, although I note its submissions that there is precedent to waive this in cases with a relevant statutory duty and public interest.   This is not ultimately determinative of the current proceeding. 
74	I accept that public confidence in the planning system is a high priority in an enforcement proceeding, as is the need to reinforce expectations for permit holders that it is important to adhere to conditions of current permits.  
75	However, in all the circumstances, given the updated undertakings made to the Tribunal, I am not persuaded that an interim enforcement order is required at this stage to direct the respondent to limit patrons to 180 at one time.  
76	I consider the expanded undertakings now made to the Tribunal to be generally equivalent to the type of order I would otherwise be inclined to make in an interim enforcement proceeding of this nature.  
77	It would require supplementary and layered management measures to seek to reduce the impacts of the additional patrons on the surrounding area.  It would also provide measurable requirements and a commitment to progressing options for additional car parking on common property which appear to be viable.  
78	I consider that expanded undertakings (as now offered) not to exceed an absolute maximum cap of patron numbers are vital.  In the absence of this, even with the other undertakings in place, there is still capacity for patron numbers to increase if unchecked between now and the final resolution of the proceeding.  
79	Accepting an undertaking of this nature should not be taken as the Tribunal condoning any breach of the current permit as it stands, nor should it be taken to pre-empt the outcome of the amendment application.  
80	However, it appears such an arrangement is a suitable and achievable interim arrangement in circumstances where there are demonstrated measures in place to reduce the risk of detriment to the neighbourhood to an acceptable level.  
81	It would also enable the merits of the amendment application to be properly considered by Council.  
82	Fundamentally though, I consider that it is not reasonable for the respondent’s expanded undertaking to seek to retain larger numbers of patrons at the facility currently, compared with what it is ultimately seeking in its amendment application (with the assumed benefit of all parking facilities and updated management measures).  
83	I consider that a performance-based requirement limiting maximum patrons by way of undertaking is acceptable in principle given the range of other measures to be implemented via the undertakings.  They are not substantially below actual maximum patron counts required by the current undertaking.  
84	However, in the face of an obvious breach of the permit condition, it is incumbent on the business to find effective solutions to ensure that patron numbers will not meaningfully increase between now and the final resolution of this proceeding.  
85	It is time for management to turn its mind to what it could do to effectively implement further measures to make the maintenance of a cap on patron numbers viable now and into the future. 
86	For example, this could potentially involve an expanded booking system, a temporary block or limitation on the purchase of new memberships, an automated entry/exit or patron counting system, a protocol to be developed and communicated to staff and members how a one-in, one-out queuing system may work at peak times or the like.  
Conclusion 
87	In the context of the interim enforcement proceeding, provided the updated undertakings are met, I continue there will be a notably reduced risk of detriment to the public as a result of any non-compliance with patron numbers.  
88	This would provide an effective ‘holding position’ until a final determination is made or consent position reached.  
89	Having regard to all these considerations, on the facts as they currently stand, I conclude that the lower risk of injustice in the event I was found to be wrong is in favour of the Tribunal accepting updated undertakings without making the interim enforcement order sought.  
90	For these reasons, the application for interim enforcement order is refused at the present time.  
General observation
91	Enforcement proceedings such as this involve costs to parties and to the state. 
92	I encourage the parties to think seriously at this stage about options for a consent order (even a self-executing one or with delayed implementation), especially in circumstances where the breaches of the condition are not contested.  
93	From experience, it may be possible for parties to agree to a final enforcement order with terms similar to the undertakings, on the basis that the respondent will comply with any conditions relating to patron numbers once the current amendment application is determined. 
94	Council would need to determine whether such an arrangement may be sufficient for its purposes, in light of its obligations as responsible authority to both enforce and administer the planning scheme. 

Dalia Cook
Member