VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1890/2018
Permit Application no. PP17//00412	
CATCHWORDS	
Section 80 of the Planning & Environment Act 1987; Boroondara Planning Scheme; Commercial 1 Zone; Conditions 1(a) and 1(b), Car Parking provision.	

APPLICANT	Daniel Surjenko	
responsible authority	Boroondara City Council	
RESPONDENT	Sean Foo	
SUBJECT LAND	189 Canterbury Road
CANTERBURY  VIC  3126	
WHERE HELD	Melbourne	
BEFORE	Alison Slattery, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	4 April 2019	
DATE OF ORDER	28 June 2019	
CITATION	Surjenko v Boroondara CC [2019] VCAT 1007	

Order
. Permit amended
1	In application P1890/2018 the decision of the responsible authority is varied.  
2	Planning permit PP17//00412 is amended and an amended permit is directed to be issued for the land at 189 Canterbury Road, Canterbury.  The permit is amended as follows.
3	Conditions in the permit are amended as follows:
(a)	Conditions 1(a) and 1(b) are deleted.  
(b)	Conditions in the permit are relettered accordingly.

Alison Slattery 
Member			

Appearances
For applicant	Mr David De Giovanni, Town Planner of DD 
Planning.  He called traffic engineering evidence from Mr Damien Hancox of TTM Consulting.	
For responsible authority	Mr Christopher Mullan, Town Planner	
For respondent 	Mr Rachael Foo in person	

Information
Description of proposal	The original approval relates to the partial demolition of the existing building on site to the rear and construction of a three storey building containing an office and two dwellings, all in a heritage overlay and design and development overlay.  A reduction in the provision of car parking is also sought, and the conditions in review (1a and 1b) relate to this reduction.  Two car parking spaces are proposed to be located to the rear of the site, via a stacker arrangement.  These spaces are proposed to be allocated to each dwelling.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Boroondara Planning Scheme 	
Zone and overlays	Commercial 1 Zone
Heritage Overlay (HO145)
Design and Development Overlay (DDO16)
Parking Overlay (PO1)	
Permit requirements	(As it relates to the application for review) Clause 52.06-3- reduction of the car parking requirements associated with the office use.	
Relevant scheme policies and provisions	Clauses 11, 15.01, 16, 17, 18, 19, 21.04, 21.05, 21.06, 22.03, 22.06, 34.01,m 43.01, 43.02, 45.09, 52.06, 58, and 65.   	
Land description	The review site is located on the northern side of Canterbury Road, around 50 metres to the east of the intersection with Balwyn Road.  To the rear of the site, Delany Close provides vehicular access to commercial tenancies facing on to Canterbury Road.  
The site is rectangular in shape with a frontage of 5.49 metres to Canterbury Road and a depth of 33.53 metres for a total area of 184 square metres. The land is presently occupied by a single storey non graded commercial building constructed to each side boundary with informal parking for one to two cars to the rear.  
The site slopes down significantly from the rear to Canterbury Road, in line with the other tenancies facing Canterbury Road.      
The site is located within Canterbury Village and has excellent access to public transport by way of Canterbury Station (150 metres) to the south east and bus route 285 (115 metres) to the east.  The site is located within a commercial hub, facing onto Canterbury Road, with Canterbury Gardens located on the southern side of the road.   
The area has good access to bicycle and walking tracks.  	
Tribunal inspection	The Tribunal conducted an unaccompanied site inspection of the area after the hearing.   	

Reasons
1	Boroondara City Council issued a permit to develop the land at 189 Canterbury Road, Canterbury for partial demolition of the existing building and construction of buildings and works for a three storey building containing an office and two dwellings, in a Heritage Overlay and Design and Development Overlay (DDO16) and a reduction of the standard car parking requirement.
2	Conditions 1(a) and 1(b) were sought to be reviewed by the permit applicant.  
3	The conditions in contention include:
1(a) Provision of one additional car space within the independent car stacker to be allocated to the office, totalling three car spaces on site. 
1(b) Pedestrian access to be provided within the development from the car stacker to the office.
4	The review grounds regarding the conditions relate to the provision of car parking on the site and associated changes to the pedestrian walkway.  
5	The key issues for determination are:
(a)	Is the proposed provision of car parking adequate?
6	The Tribunal must decide whether the conditions should remain, be altered, or be removed.  Having considered all submissions with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to vary Council’s decision and delete the reviewed conditions.  My reasons follow.
is the proposed provision of parking adequate?
7	Conditions 1(a) and 1 (b) require the provision of three car spaces where currently two are proposed.  Council submit this condition is required as there will be a reduction to zero for the commercial tenancy, where currently two car spaces are provided.  Ms Foo (current tenant) supports Councils position and gave anecdotal credence to the informal car parking at the rear accommodating two cars.  She held that this level of parking was necessary to her hair dressing salon at the ground level, providing parking for staff and for customers.  
8	Mr De Giovanni submitted that the conditions were onerous in the Commercial 1 Zone, were not supported by advice from traffic engineers, would require a complete redesign of the proposal and were not viable due to the requirements for accessible parking provision in a stacker arrangement.  He also submitted that the rear area of the site provided for informal parking where two cars would need to be parked quite tighly in order to fit.  In support of his position Mr De Giovanni relied on the traffic engineering evidence of Mr Hancox of TTM consulting and on the advice from Councils traffic engineers who support the proposal in its current form.
9	I do not consider it is appropriate to require the changes in either condition (1(a) or 1(b)).  I will deal with each condition separately.
Condition 1(a)
10	I am satisfied that the proposal responds well to Clause 21.06 Transport and Infrastructure.  Within this policy Strategy 1.1 requires the consideration of “parking reductions in development only where it can be demonstrated that sufficient car parking exists in the area and where there is a choice of transport modes available in the area.”  
11	The site is located well within the Canterbury Activity Centre and has excellent access to public transport by way of bus route 285 on the corner of Rochester Road and Canterbury Road 115 metres to the east and to Canterbury train station 150 metres to the south east.  Additionally, the site is located within an area where there is excellent access to bicycle and pedestrian paths.  There is, within close vicinity of the site, on street parking that Mr Hancox demonstrated through parking demand surveys conducted on 20 June and 23 June 2017 has an availability of between 28-36 parking spaces along Canterbury Road proximate to the site.  
12	I am satisfied that the reduction in provision of car spaces is reasonable with the commercial tenancy customers parking needs able to be located on site, if required (public transport being plentiful in this area).  The tenancy (hair salon) has an area of 103.42 square metres and is relatively small, meaning that the number of customers at any one time will be limited.  In addition, as the site is located within a vibrant commercial hub, there is a reasonable expectation of combined multi trips to be undertaken by patrons, thereby reducing the demand on on-street carparking spaces.  I am also satisfied that the provision of parking for staff of the commercial tenancy (hair salon) is not required to be located on the site and can be provided on street if required.  I say this cognisant of there being current provision, albeit quite restricted, for two car parking spaces to the rear of the site servicing the current commercial tenancy, which would result in a lesser credit than considered by Mr Hancox.  In cross examination Mr Hancox stated that the reduction, be it by one or two car spaces could be reasonable in this location.  I agree with Mr Hancox and Mr De Giovanni that the site is appropriately located within an activity centre.  Clause 21.06 seeks to ensure that parking and access pressures around activity centres are appropriately resolved, with the devolution of parking reduction in residential areas, away from the core of the activity centre.  The policy seeks to reduce the demand for car parking within activity centres through the promotion of alternative transport modes such as walking, cycling and public transport.  I am satisfied that the prosed reduction in the provision of car parking will not have a likely unreasonable impact on the surrounding area.  I am satisfied that the reduction in car parking provision as proposed helps to manage the expectations enshrined within local policy at Clause 21.06 for more orderly parking within the activity centre.
13	In addition to the above, but not the main driver of my decision, I agree with Mr Hancox that the provision of accessible parking within a stacker system is, at best, problematic, and at worst, likely dangerous.  If Condition 1(a) were to remain, dispensation from this requirement would need to be sought.  This, I am led to understand, is quite a difficult task, and unlikely to be successful.
Condition 1(b) 
14	It was agreed that Condition 1(b) flows on from the imposition of Condition 1(a), and if I were to delete Condition 1(a) then Condition 1(b) is futile.  As I have ordered the removal of Condition 1(a), I also consequently order the removal of Condition 1(b).

Alison Slattery 
Member