Visitor car parking the PPTN and the ghost of Benedettis case

Dominic Scally
3 February 2020

This note relates to the VCAT decision in Icecorp Pty Ltd v Boroondara CC [2019] VCAT 2042, which discusses the requirements for visitor parking under VC110. The Principal Public Transport Network comprises the key public transport routes within the City of Melbourne.

Under Amendment VC110, the State Government determined that no visitor car parking is required for any new medium density residential development within 400m of its routes.  The explanatory report associated with the Amendment confirmed the intention was to reduce the reliance upon motor vehicles within these locations and therefore engineer a change in driver behaviour to better traffic congestion.  Clause 52.06 of the VPP Planning Scheme would otherwise require one visitor car parking space for every five (5) dwellings developed in a new residential project.

In this case, the apartment building was completed and occupier and the dwellings within it mostly sold.  The Applicant applied to remove the two visitor car parking space requirement. The Council consented to the Application given Amendment VC110.  The Application was advertised and two grounds were filed but the objectors did not seek to become parties to the proceeding.  The proposed consent order was rejected by the Tribunal which required to hear argument.  The Applicant relied upon the Amendment and expert traffic engineering evidence that there was ample available on street car parking proximate to the site for visitors.  Tribunal disallowed the Application for Review.  It maintained the site was not sufficiently close to the transport route given the 400m mark as the crow flies touched only a small part of the site. The Tribunal requested forensic car parking surveys, regardless of the Barkers Road, Kew location.  It relied upon the fact objections had been lodged.

Although not expressed in the case, the Benedetti’s principle appears to have been applied.  It requires compliance with a planning permit, regardless subsequently a control applying to the grant of the planning permit is revoked by Government.  Tribunal considered residents and owners of the development acquired interest in it on the basis of the car parking provision.  They are entitled to rely upon the permit.  The Tribunal did not directly reference the Benedetti’s case but the principle applies.

Developers should be wary of the principle where seeking to remove visitor car parking post development completion and sale of dwellings.  The best time to seek to remove the car parking provision is prior to the sale of dwellings within development.

If you wish to know more about these principles, please contact our Lawyers in the Planning and Land Development Team.