VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P224/2024
permit application no. TPA/55136

Applicant	The Zythologist Pty Ltd	
Responsible Authority	Monash City Council	
Respondents	Ashley John Williams	
	Margaret Ann Buchanan	
SUBJECT LAND	84 Carlisle Crescent
HUGHESDALE  VIC  3166	
hearing type	Practice day hearing	
date of hearing	10 May 2024	
DATE OF ORDER	15 May 2024	
citation	The Zythologist Pty Ltd v Monash CC [2024] VCAT 459	

Order
1	Planning permission is not required pursuant to clause 52.06 of the Monash Planning Scheme as a permit is not required to reduce the required number of car parking spaces for a new use of an existing building if the requirements set out in clause 52.06-3 are met. I find that those requirements are met for this application.
2	If the council wishes to rely on revised grounds of refusal, it must file its revised grounds with the Tribunal and serve on all parties by 4:00 pm on 27 May 2024.
3	If any other party wishes to amend their statement of grounds for this application, they must file amended grounds with the Tribunal and serve on all other parties by 4:00 pm on 7 June 2024. 
4	The details set out in the Tribunal’s initiating order are changed.
The proceeding is listed for a compulsory conference and a hearing as detailed below.
The compulsory conference and hearing will be conducted at 20-22 Atherton Road, Oakleigh.
Details will be published on the Tribunal website late on the afternoon of the day prior to the hearing.
If there is any change to these details, the Tribunal will notify you.

Compulsory Conference:	
Date and time	28 June 2024
10.00am – 1.00pm 	

Conduct	In person	
Place 	VCAT Oakleigh, 20-22 Atherton Road, Oakleigh, VIC 3166	

Standard Cases Hearing:	
Date and time	18 and 19 September 2024
10.00am – 4.30pm 	

Conduct	In person	
Place 	VCAT Oakleigh, 20-22 Atherton Road, Oakleigh, VIC 3166	
Providing submissions and associated material before the hearing
5	No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
6	All expert evidence must be provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
7	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees
Compulsory conference
8	All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.
(Note: See more information in Appendix A of this order).
9	No later than 10 business days before the compulsory conference the applicant (permit applicant) must give all parties a copy of any amended plans it wants to discuss or rely upon at the compulsory conference.
10	No later than 5 business days before the compulsory conference the responsible authority must give the Tribunal and all parties a copy of draft permit conditions that may be discussed at the compulsory conference.  A copy of the conditions must be brought to the compulsory conference in electronic Word format.
11	Any document to be relied on for the compulsory conference that is provided to the Tribunal must be clearly marked “For Compulsory Conference”.

J Perlstein
Member

Appearances
For The Zythologist Pty Ltd	Mr Panos Nickas, solicitor, Nickas Legal Pty Ltd	
For Monash City Council	Mr Nick Sissons, solicitor, HWL Ebsworth Lawyers	
For Margaret Ann Buchanan	In person	
For Ashley John Williams	No appearance	

reasons
1	Application P224/2024 was filed with the Tribunal seeking review of the decision of the Monash City Council (‘council’) to refuse to grant a permit for use of the land at 84 Carlisle Crescent, Hughesdale to sell and consume liquor, use of the land for industry (brewery), display of business identification signs, buildings and works and a reduction of car parking.
2	The planning permissions sought are separately identified, as follows, in the council’s notice of refusal.

3	The third reason for refusal provided within the notice is:

4	The applicant for review submits that planning permission is not required to reduce the number of car parking spaces required under clause 52.06-5 of the Monash Planning Scheme (‘Scheme’). There is no dispute concerning the remaining permissions applying to this proposal, as set out in the notice of refusal.
5	A practice day hearing was scheduled for this application with the following purpose:
•	to consider the reasons that planning permission is required for the application under the Monash Planning Scheme;
•	to consider the relevance of the third stated reason on the Notice of Decision to Refuse to Grant a Permit issued by the Monash City Council on 27 December 2023, in circumstances where the applicant indicates that planning permission is not required under Clause 52.06 (Car Parking) of the Monash Planning Scheme;
•	to consider the future conduct of the proceeding. This may include a consideration of dates, duration, compulsory conference and/or venue.

6	The parties filed submissions in advance of the hearing. During the practice day hearing, there was detailed discussion concerning how to apply the requirements of clause 52.06 to this application. At the conclusion of the hearing I delivered an oral decision, finding that planning permission was not required for this application pursuant to clause 52.06 of the Scheme. 
7	On the basis of that finding, I have provided all parties with an opportunity to reconsider the grounds on which they will rely at the hearing of this application. One of the parties advised that they would be unable to attend the compulsory conference and hearing on the dates listed, and all parties agreed that it would be appropriate to have the matter heard at the Oakleigh venue if possible. I have been able to arrange for alternative, and earlier, dates for these fixtures, after considering the constraints of parties, and for them to be conducted at VCAT Oakleigh. 
8	The council asked that I include a brief summary of my reasons for the finding in this order. I do so below.
9	Clause 52.06-2 provides that before a new use commences; or the floor area or site area of an existing use is increased; or an existing use is increased by the measure specified in Column C of Table 1 in Clause 52.06-5 for that use, the number of car parking spaces required under Clause 52.06-5 or in a schedule to the Parking Overlay must be provided to the satisfaction of the responsible authority.
10	Clause 52.06-3 provides that a permit is required, as relevant to this application, to reduce (including reduce to zero) the number of car parking spaces required. However, it also provides some exemptions to this requirement. As relevant to this application, it provides as follows:
  
11	This application is for a new use of an existing building. However, 84 Carlisle Crescent currently contains two abutting buildings, and the use of the land immediately prior to the planning permit application involved the entirety of the property being leased to the same tenant, with both buildings being used for the same business. 
12	The current application involves only one of those buildings, with the eastern building, comprising a shop and office, specifically excluded from the application. The image below shows the frontage of the entire property. The shop/office building is on the right, while the industrial building the subject of this application sits to its rear in an ‘L’ shape, with an open area in front of the industrial building. This is currently used for informal car parking, and it was agreed between the parties that there is space for approximately three vehicles. 

13	The plans below come from the application plans, which include both buildings and specifically state with respect to the shop/office building - adjacent tenancy not part of application. Three formal car spaces are proposed to be line marked within the frontage.  

14	When considering the exemption from planning permission set out above, there are four requirements to be met. All parties agree that three are clearly met. The site is in the Commercial 1 Zone, the gross floor area of the building is not increased, and the building is not in a Parking Overlay. Questions were raised about the third dot point, whether the reduction in parking required does not exceed 10 car parking spaces.
15	The applicant provided a memorandum from Traffix Group that was prepared to address this issue. Below is an extract of the advice provided with respect to the shortfall in car parking spaces. The assessment found that the proposal would require 10 spaces in total. Given that 3 car spaces are to be provided on the site, there is a shortfall of 7 spaces. On that assessment, the reduction in car parking does not exceed 10 car parking spaces.

16	The Traffix Group advice noted the previous inclusion of the shop/office use of the adjoining building within the numbers of car parking spaces required. It then came to a different conclusion as to how to assess those spaces and found that zero spaces were required for the shop/office use. This is in contrast with the previous assessment by both the council and traffic engineers engaged by the applicant, who considered that 3 car spaces were required in connection with the adjoining building. If that approach is correct, then the parking requirement would be 13, and the reduction required would be 10 spaces, rather than 7 spaces. This would still meet the third dot point, as the reduction in car parking does not exceed 10 spaces.
17	During the hearing, the applicant submitted that, regardless of how one calculates the parking requirements of the shop/office building, any car parking requirements associated with that building should not be considered at all, given that the building does not form part of this application. 
18	Council, conversely, submitted that it should be considered, on the following basis:

19	As discussed during the hearing, the council raises an interesting question. In terms of the application before it, and now before the Tribunal, this does not include the shop/office building. Having regard to the application before the responsible authority and the building to be used, there is a shortfall in parking of 7 car spaces, the four requirements have been met and the exemption applies. 
20	However, the two buildings are currently being used together and, arguably, the area in front of the industrial building is currently used for parking associated with both that building and the shop/office building. Therefore, the removal of that area from the shop/office tenancy arguably removes car parking spaces from that use. While this application does not concern itself with that use, the council asks the legitimate question as to whether it is appropriate to approve a proposal that will, arguably, remove car parking from another use. I say arguably because no formal car parking has been provided on the site and, in circumstances where the whole of the land was used by one tenant, I am not in a position to determine whether and how many cars that have historically parked on the land were associated with one building or the other. 
21	While the council raises an important point about orderly planning, I also note the Traffix Group’s opinion regarding the purpose of the exemption as set out within its memorandum, as follows:

22	A further discussion was undertaken during the hearing about the council’s assessment of car spaces. The council, in its written submissions, had assessed that 5 car spaces were required under clause 52.06 for the shop/office use. However, on reflection, the correct provision is 3, as previously determined by Red Square and included in the council officer’s report (as also noted in the Traffic Group memorandum). Therefore, the total reduction of car spaces, even if the shop/office use was included in the assessment, would be 10 car spaces, and the exemption would apply.
23	I have not formed a view that the shop/office should be considered in this assessment, given that it is not part of the application for planning permission. However, even if it was included, the total shortfall in car spaces is 10, which would still meet the threshold for the application of the exemption. 
24	Whether or not, on its merits, there is an argument to be made that insufficient parking is provided on the site, the Scheme, through the exemptions in clause 52.06, provides that planning permission is not required to reduce the number of car parking spaces that would otherwise be required. This is the case whether the land parcel is confined to the land subject to this application or whether the entirety of the land, comprising both buildings, is included in the calculation. 
25	On that basis, I am satisfied that the ‘shortfall’ in spaces is not being ignored but is permitted by the Scheme provisions. If a planning permit is issued for the use and development the subject of this application, the adjoining building will be able to continue to be used as a shop/office without an area on the land available for car parking.
26	For these reasons, planning permission is not required for this application pursuant to clause 52.06 of the Scheme as a permit is not required to reduce the required number of car parking spaces for a new use of an existing building if the requirements set out in clause 52.06-3 are met. I find that those requirements are met for this application.

J Perlstein
Member

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

For information about what happens after you make your application, visit
www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal’s support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

appendix A
compulsory conference INFORMATION SHEET
What is a compulsory conference?
A compulsory conference is a private meeting between the parties to the proceeding. 

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute.  The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding. 

More information about compulsory conferences is available on the Tribunal’s website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 – Alternative Dispute Resolution (ADR).

Requirement to attend compulsory conference
If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way. 

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998:
•	If you are the applicant, your application may be dismissed or struck out.
•	If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing. 
•	The matter may also be settled, approving the proposal with or without changes.
•	You may be ordered to pay the costs of the other parties in certain circumstances.

Who may attend a compulsory conference?
Only parties to the proceeding may attend a compulsory conference.

A person is a ‘party’ to the proceeding if the person:
•	lodged an objection to the planning application
•	has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
•	has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:
•	a person who did not lodge an objection to the permit application
•	a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
•	a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding.  You will need to explain why you should be joined as a party to the proceeding.  Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party.  The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?
If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?
If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?
If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference. 

What should you bring to the compulsory conference?
Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties.  The attached ‘Summary of Issues and Solutions for a Compulsory Conference’ may be used.  The applicant for the permit should bring an extra copy of any relevant plans including elevations.

Planning and Environment List
SUMMARY OF ISSUES AND SOLUTIONS for a compulsory conference
VCAT reference number	P224/2024	
Applicant	

	The Zythologist Pty Ltd	

Responsible authority	Monash City Council	

Your name		

It is suggested that each party identify key issues and potential solutions before the compulsory conference.  This will help to clarify the key issues that the parties consider most important to them and possible solutions.
Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

	

	
	
What potential solutions would you consider?  Use additional pages if required