VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P51/2021
Permit Application no.PL07/0895.01 	

Applicant	3 Point Motors Pty Ltd	

Responsible Authority	Yarra City Council	
Referral Authority	Head, Transport for Victoria	

SUBJECT LAND	484 Heidelberg Road
FAIRFIELD VIC 3078	

HEARING TYPE	Hearing	

DATE OF HEARING	20 October 2021	

DATE OF ORDER	25 November 2021	

CITATION	3 Point Motors Pty Ltd v Yarra CC [2021] VCAT 1417	

Order
1	In application P51/2021 the decision of the responsible authority is set aside.  
2	Planning permit PL07/0895.01 is amended and an amended permit is directed to be issued for the land at 484 Heidelberg Road FAIRFIELD VIC 3078.  The permit is amended as follows.
(a)	Condition 8 is deleted.  
3	Conditions in the permit are renumbered accordingly.

Jane Tait
Member			
Appearances
For 3 Point Motors Pty Ltd	David Song, town planner, Song Bowden Planning 	
For Yarra City Council	Katrina Thomas, Planning Appeals Advocate	
For Department of Transport	No appearance	

Information
Description of proposal	To delete Condition 8 of Planning Permit PL07/0895 that states:
Staff members must only utilise on-site car spaces for the purpose of parking their vehicles.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Yarra Planning Scheme 	
Zone and overlays	Commercial 2 Zone (C2Z)	
Permit requirements	Clause 34.02-1 – Use of the land for motor vehicle sales 	
Land description	The subject site is located on the south-west corner of Heidelberg Road and Austin Street, Fairfield.  The site is irregular in shape and has an overall area of 2852 square metres.  The site is used for motor vehicle sales and repairs and is occupied by a 10 metre high commercial building that contains basement car parking, ground floor workshop and showroom and first floor mezzanine office and utilities.  The basement contains 43 car spaces, two car washing areas, loading bay and storeroom.  The ground floor contains 13 car spaces for servicing.	
Tribunal inspection	An unaccompanied site inspection was conducted after the hearing.   	

Reasons
What is this proceeding about?
1	3 Point Motors Pty Ltd (the ‘applicant’) applied to Yarra City Council (the ‘Council’) to delete Condition 8 of Planning Permit PL07/0895 (the ‘permit’) that states:
 Staff members must only utilise on-site car spaces for the purpose of parking their vehicles.
2	Council refused to grant an amendment to the permit on the following ground:
The proposed amendment is contrary to the decision guidelines of Clause 65.01 (Approval of an application or plan) and Clause 63.05 of the Yarra Planning Scheme as it will detrimentally effect the amenity and orderly planning of the area. 
3	Council argues that deletion of Condition 8 ‘flies in the face’ of transport and broad policy objectives that seek to discourage private vehicle transport.  It submits the proposal is inconsistent with the orderly planning of the area given that there are cycling lanes and public transport available which are preferable options for employees to access the site.
4	Council submits the amendment to the permit will result in an unacceptable demand for long-term parking in the nearby residential streets.  It says the applicant has admitted that this is already occurring, and this has necessitated the introduction of additional parking restrictions in Park Crescent.  Whilst Council acknowledges that on-street parking is a shared public resource, it considers that allowing staff to use on-street parking will result in an inequitable sharing of this resource.  Council argues that customer/visitor car parking can be catered for on street and long-term staff parking is best provided on-site.  
5	Statements of Grounds were lodged by eight residents in the adjoining and nearby streets.  They support Council’s Ground of Refusal and submit the existing use already has adverse amenity impacts on the surrounding area due to insufficient on-site car parking, inadequate loading bay facilities, heavy trucks using residential streets, blocked driveways, and unsafe road access.  They say staff currently use on-street parking in breach of the permit condition and residents must park far away from their homes.  They submit removal of Condition 8 will exacerbate the situation.  
6	The residents argue the use does not serve the local area and it has necessitated the implementation of parking restrictions which require residents to pay for permit parking.  They say it is unrealistic to expect staff to use public transport given the nature of the use and removal of the condition will condone the applicant’s bad behaviour and restrict access for on-street parking for residents.
7	The applicant argues that Condition 8 is unreasonable and unnecessary as the staff should not be precluded from using the public on-street resource. It says that amendment of the permit will not lead to a parking ‘free-for-all’ as there are parking restrictions already in place within the surrounding residential streets.  It relies on the traffic engineering evidence of Mr Walsh who is satisfied the condition can be deleted with manageable impacts to the unrestricted car parking supply in the surrounding area.  He also says that Council currently manages parking in nearby residential streets to protect residents which limits the infiltration of staff parking in these streets.
What are the key issues?
8	I find the key issues in this matter are:
•	Does the deletion of condition have strategic and planning policy support?
•	Would deletion of the condition result in adverse amenity impacts?
9	Clause 71.02-3 requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the Scheme.
10	Having considered the submissions and statement of grounds and assisted by my inspection, I have decided to delete Condition 8 to allow staff to park in surrounding residential streets.  Whilst I appreciate the nearby residents may currently experience difficulties parking near their homes at times, I am satisfied the existing parking restrictions in surrounding streets ensure there is on-street parking is available for residents. The applicant has also submitted evidence from Mr Walsh that indicates there is capacity in the surrounding area to accommodate staff parking in the existing unrestricted car parking spaces.  
How does the existing use operate?
11	The subject site is used for motor vehicle sales and servicing and provides a total of 81 car spaces that includes 43 spaces at basement level, 23 spaces for car sales and 20 spaces for vehicles waiting to be serviced or have been serviced.  Access is from two crossovers onto Austin Street (east boundary) that provides access to a ‘porte-cochere’ vehicle drop-of/pick-up area.  There is a ramp along the south boundary that provides access to the basement car park.  
12	The applicant owns and operates two other sites including the abutting property to the west at 468-472 Heidelberg Road that is used for vehicle display in accordance with Permit PLN16/1100.  This property is incorporated with the subject site that is used for motor vehicle sales.  This site has a further 32 spaces that includes 9 customer spaces, 13 staff company car spaces and 19 spaces for car sales.  Access is from Heidelberg Road and Arthur Street.  
13	The second site is located at 11 Austin Street that is used as a separate car park that accommodates 28 spaces.  This site is used for vehicles waiting to be serviced or post-service and waiting for customers to pick up.  The applicant advises this car park is used for some staff parking when spaces are available.  
Figure 1 – Existing conditions aerial photograph

14	Mr Walsh advised the use currently has 68 staff at the site that include up to a maximum of 52 staff on-site at any one time.  The use operates between 7.30am to 6.00pm Monday to Friday and 9.00am to 5.00pm on Saturdays.
Existing Planning Permit
15	Permit PLN07/0895 was issued on 14 May 2008 at the direction of the Tribunal and allows buildings and works associated with an existing motor vehicle sales and servicing business.  This permit was for the total redevelopment of the site for continued use as motor vehicle sales, ancillary offices, storage, and servicing of vehicles on the subject site that included 43 car spaces.  The Tribunal considered a range of matters including staff numbers and hours of operation.  Whilst the Tribunal determined to delete these conditions on the permit, Condition 8 (then Condition 10) was not contested by the Applicant. 
16	Apart from Condition 8, other relevant conditions on the permit include:
•	Condition 5: The number of vehicles displayed for sale must not exceed 20 at any one time unless with the further written consent of the Responsible Authority.
•	Condition 7: No fewer than 4 car spaces must be provided on the land for customer usage.
Planning history
17	The first motor vehicle sales use permit was issued in 1986 by the City of Northcote to undertake alterations and use the building as a new and used car showroom, vehicle repairs and service at 484 Heidelberg Road (with associated staff and visitor car parking at 9-11 Austin Street).  Condition 10 on this permit stated:
No vehicle in the ownership or under the control of employees shall be parked on streets in the vicinity of the site.
18	Other permits issued for the site include PL02/0422, at the direction of the Tribunal,  for the construction of buildings and works to the existing building (including partial demolition and a reduction in the car parking requirement) in association with the existing car showroom, services centre, and proposed office use.  This permit included the following condition 3:
No pre-delivery vehicles or vehicles awaiting repairs or installation (vehicles being repaired or serviced) or awaiting pick up shall be parked in Austin Street south of the site at 484 Upper Heidelberg Road, Fairfield.
19	A subsequent permit PL04/0792 was granted in March 2005 at the direction of the Tribunal in March 2005 for buildings and works including the partial demolition and a reduction in car parking requirements.  This permit included the same condition 3 as PL02/0422.
20	A separate permit PLN/0758 was issued in April 2013 for the abutting land at 468-472 Heidelberg Road for buildings and works for use of the site as motor vehicle sales (a variation in the requirements of Clause 52.14 of the Yarra Planning Scheme) and construction and display of three illuminated signs and three flag poles.  This permit included conditions regulating hours of operation and restricted the number of vehicles for sale to a maximum of 31.
surrounding land
21	Properties to the east, west and north of the subject site are within a C2Z whilst to the south are residential properties in a Neighbourhood Residential Zone (NRZ).  The subject site abuts Heidelberg Road that is a Road Zone Category 1.  This road contains Clearway restrictions that apply from 6.30am-9.30am on the south side and 4.30pm-6.30pm on the north side, Monday to Friday.
Figure 2 – Aerial photograph

22	Car parking restrictions in operation within 400 metres of the subject site include:
Figure 3 – Parking restrictions in surrounding area

23	Mr Walsh advised that changes were made to the on-street parking restrictions in 2021 including 2P parking on the north and south sides of Park Crescent from 7.00am-7.00pm, Monday to Friday.  No Stopping restrictions were also introduced on the south side of Heidelberg road between Austin and Westgarth Streets for pop-up bicycle lanes.  On the west side of Station Street between Park Crescent and Heidelberg Road, unrestricted parking was changed to 2P from 7.00am to 7.00pm, Monday to Friday. 
Validity of Condition
24	The applicant submits that Condition 8 is an unreasonable and should be considered invalid on the basis that no reasonable responsible authority would have imposed it.   It referred to the advice of Council’s Engineering Services Unit that said it will be difficult to enforce the condition given a local street is a public highway in accordance with the Victorian Local Government Act 1989.  The Unit noted that this Act does not prevent people from parking on a local street provided the car is parked on a section of the road that is permissible for parking which includes unrestricted zones or time restricted zones.  
25	Council refutes this proposition and says the condition is not ambiguous and is enforceable as the onus is on the permit holder to comply with any restrictions on their permit.  It says the condition is not unfair and will not unreasonably constrain the business as staff can access the site using public transport or bicycle facilities.  It notes the condition is not a restriction on staff numbers but a necessary restriction to which the use has always been on the permit.  It says this condition is designed to ensure the use does not unreasonably affect the amenity of the area through traffic and vehicle usage.  
26	Council also argues the previous division of the Tribunal was satisfied the amenity of the area would not be damaged by a change in activities and it also had regard to the condition under review.  Council referred to the following comment made in Nott Architecture v Yarra CC:
Mr Hollerich pointed out Nos 9 & 17 Austin Street are already used for staff parking; a similar number of staff members already work on this site; and therefore the extent of traffic is likely to be similar to that which already exists. Condition 10 requires staff to park on the site and Mr Hollerich advised the number of servicing hoists will remain the same as part of this redevelopment. I am not persuaded it is necessary to control the number of staff employed on the review site in order to control vehicle usage and traffic in and out of Austin Street.
Tribunal findings
27	I note Condition 8 has its origins in the first permit issued by the City of Northcote back in 1986 which was reworded over time to its current form.  I am not persuaded by Council’s argument that the Tribunal had regard to the condition in its determination in Nott Architecture v Yarra CC.  Whilst the findings referred to this condition, it was not one in dispute before the Tribunal.   
28	I agree with the applicant that imposition of a condition to restrict staff parking on this site is onerous given any member of the public can park on a section of a local road that is permissible for parking, which includes unrestricted zones or time restricted zones.
Does the deletion of the Condition have strategic and planning policy support?
29	The subject site is in a C2Z which has an objective to ensure that uses do not affect the safety and amenity of adjacent, more sensitive uses.  No overlays affect the site.  The provisions in Clause 52.06 (Car Parking) do not apply as the application does not reduce the existing on-site car parking provision or change the intensity of the use. 
30	Relevant clauses in the Planning Policy Framework (PPF) include Clause 17.02-1S (Business) that has an objective to encourage development that meets the community’s needs for commercial services.  Other clauses include Clause 18.02-1S (Sustainable personal transport) that has an objective to promote the use of sustainable personal transport and Clause 18.02-4S (Car parking) that has an objective to ensure an adequate supply of car parking that is appropriately located and designed.
31	Local polices reiterate themes in the PPF at Clause 21.04-3 (Industry, Office and Commercial). This clause has an objective to increase the number and diversity of local employment opportunities.  Clause 21.06 (Transport) also has objectives to facilitate public transport usage, reduce reliance on the private motor car and reduce the impact of traffic.
Policy arguments
32	Council argues that deletion of Condition 8 would defeat one of the fundamental transport objectives of the PPF and LPPF which is to discourage private motor vehicle use.  Council submits that if car parking availability is increased for staff, it is likely that demand will expand to meet supply.  It says this is contrary to the orderly proper planning given the site is in a location where cycling and public transport use are viable and preferable options for employees to access the site.
33	Council also argues that on-street parking is a shared public resource that needs to be managed to serve both commercial and residential uses in the area.  It submits deletion of the condition will result the inequitable sharing of on-street parking.  It says long term employee parking is best provided on-site and short-term visitor or customer parking can be catered for on-street in areas where parking restrictions apply to provide a more equitable distribution of parking. 
34	Council argues the provisions of Clause 63.05 are applicable as the site has existing use rights for motor vehicle sales and servicing.  It also submits that decision guidelines of Clause 65.01 require consideration of matters such as the purpose of the zone, the orderly planning of the area and the effect on the environment, human health, and amenity of the area.
35	The applicant argues the business is an important contributor to the economy and employment sector of the municipality.  It also says Clause 22.05 (Local Interfaces Policy) seeks to reduce conflict between commercial and residential uses but does not mention car parking.  It also says there is no local car parking policy within the scheme.  
36	The applicant submits that Council cannot rely on the provisions of Clause 63.05 (Existing Uses) as the use is a permitted existing use with planning permission and the proposal does not result in the change in the activities of the existing use.  It also says that reliance on the general amenity provision in Clause 65.01 is a vague attempt to argue that amenity is somehow reduced by deletion of the condition.  
37	The applicant submits staff should be allowed to park their vehicles on the street and they should not be precluded from using the public on-street resource.  It argues that if Council wants to restrict on-street parking within the surrounding streets, it can do so with parking restrictions, which has already been done.  
Tribunal findings
38	I acknowledge the PPF and LPPF recognise the importance of commercial uses for employment and economic activity within the municipality.  They also encourage use of sustainable means of transport in localities such as Fairfield that has multiple forms of public transport nearby, as well as accessible cycling facilities.  I consider the condition is a blunt instrument to achieve these objectives and other measures, such as on-street parking restrictions, is a better way to encourage staff to use sustainable transport modes due to the limited availability of unrestricted parking near the subject site.
39	Council’s ground of refusal is that the proposal is contrary to the decision guidelines of Clause 63.05. I acknowledge these were considered in Nott Architecture v Yarra CC and the Tribunal commented:
This proposal does not result in a change in the activities of the existing motor vehicle sales and servicing use. It was accepted by the parties the proposed redevelopment of the site will encompass both motor vehicle sales and servicing within the new building.
40	I consider the same situation applies to this proposal as removal of the condition will not change the existing activities associated with use for motor vehicle sales and servicing on the site.  In any event, I am persuaded by the applicant’s argument that the proposal is not contrary to the provisions of Clause 63.05 as it is a permitted use in accordance with the original permit issued in 1986 and deletion of the condition does not alter the activities of the existing use.
41	I agree with the applicant that on-street parking is a public resource that should be available for staff given it is Public Highway under the Victorian Local Government Act 1989.  I also note there is no parking policy applicable in this area and Clause 22.05 (Interfaces Uses Policy) does not refer to on street carparking.  The main issue is whether there is an equitable sharing of on-street parking for the commercial and residential properties nearby.  I am not persuaded by Council’s argument that deletion of the condition will result in additional demand for long term parking nearby given the area already contains extensive parking restrictions in abutting and surrounding streets.  
42	I consider on-street parking restrictions is the preferable way to manage and distribute the on-street parking resource between the commercial uses and residents.  This includes specific Permit Zones for residents and short-term parking for customers.  I have come to this conclusion based on my site inspection and the findings in Mr Walsh’s evidence that I will discuss further below.
Would deletion of the condition result in adverse amenity impacts?
43	Council argues the requirement for staff to park on-site was a condition on the permit that approved use of the land for car showroom, vehicle repairs and servicing.  It says the intent of the condition is to protect the amenity of the surrounding area from overflow parking from the business.  It submits that if the condition is deleted, the amenity of the area will be damaged by increased traffic and a reduction in the availability of long term on-street parking.  
44	Council submits deletion of the condition will result in an unacceptable demand for long term parking in residential streets by staff.  It says this is already occurring given the applicant has admitted that it occurs.  Council’s Community Amenity Unit has also received complaints from residents about the lack of long-term parking spaces in surrounding residential streets.  Council argues that deletion of the condition will severely diminish the viability of maintaining unrestricted parking in the precinct and this will be detrimental to residential amenity.  Whilst Council acknowledges on-street parking is a shared public resource, it says long term staff parking is best provided on site to avoid more staff parking infiltrating nearby streets.
45	The applicant argues the deletion of the condition will not create a parking ‘free-for-all’ as there are already parking restrictions in the surrounding residential streets.  It relies on the evidence of Mr Walsh who is satisfied the condition can be deleted with manageable impacts to the unrestricted parking supply in the surrounding area.  
46	Mr Walsh notes approximately 18 spaces are allocated to staff, across the three sites which includes 13 spaces at 468-472 Heidelberg Road and 5 spaces in the Austin Street carpark, when there is spare capacity.  He says 17 staff are allocated a company car that are parked across the three sites and this means there is approximately 18-19 staff parking off-site.  He also notes that 2016 Census data shows that 69% of staff who work in this suburb, drive to their place of employment.  This would generate car parking demand for 36 spaces, some of which will be accommodated on-site.  
47	Mr Walsh conducted spot parking surveys within 400 metre walking distance of the subject site which identified there were between 186-240 long-term parking spaces, depending on the operation of the Clearway restrictions.  These surveys were conducted in November 2020 and March 2020 before COVID-19 lockdowns were introduced and included staff parking demands currently generated by the use.  The results show the peak occupancy was 81% at 9.00am where there were 36 vacant spaces when clearway restrictions were in operation.  However, he says there were generally more than 80 unrestricted spaces available in the surrounding area which includes residential streets on the north side of Heidelberg Road that do not have parking restrictions in surrounding residential streets.  
48	Mr Walsh also acknowledged there was a reduction in the supply of long-term spaces after the implementation of bicycle lanes and the introduction of parking restrictions in Park Crescent in 2021 to between 131-147 spaces.  His most recent survey was conducted in March 2021 when businesses were operating at 75% capacity COVID safe setting. The results were that there were still 35 long term spaces available in the survey area. He says that based on these results, he is satisfied that there will be manageable impacts to the unrestricted parking supply in the surrounding area as some staff already park on-street and there is still some unrestricted parking availability with the survey area.  
Tribunal findings
49	I am persuaded by the applicant’s arguments and accept the supporting evidence of Mr Walsh.  The results of his spot parking surveys show there is unrestricted parking available in the surrounding areas, which is also currently being used by staff from the subject site.  My findings are also based on my inspection of the surrounding residential streets at the time of peak occupancy. I observed there were many vacant parking spaces in the Permit Zones along one side of Arthur and Austin Streets, and in Park Crescent. I also noted that the 2P parking on the alternate side of these streets was well utilised.  
50	Based on these observations and the survey results, I consider the residential areas near the subject site will be protected by the current parking restrictions. I also note that Council has the option to alter and/or extend on-street parking restrictions in the future, just has it has done in Park Crescent.  I therefore consider the removal of Condition 8 will not result in a substantial reduction in amenity from overflow parking from staff of the use.
51	I also note this residential area is adjacent to a chain of commercial uses operating along Heidelberg Road.  Therefore, residents cannot expect the same level of amenity as a purely residential area that does not have competing demands from both residential and commercial uses.
Are there any other issues?
52	The residents have raised ongoing issues relating to the loading and unloading of vehicles in Austin Street. Whilst Condition 11 of the permit requires loading and unloading of materials must be carried out entirely within the site, I note there is also a dedicated loading zone on the street adjacent to the site in Austin Street.   The proper management of the loading operations is an issue that should be taken up with Council in terms of compliance with the conditions on the permit. 
Conclusion
53	For the reasons given above, the decision of the responsible authority is set aside.  An amended permit is granted to delete Condition 8 from Permit PLN07/0895.

Jane Tait
Member