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New apartments, new businesses and car-parking

Building apartments? Starting a new business in rented property?

Under the Planning Schemes applicable in Victoria, there’s generally a requirement to make provision for car-parking.  That might sound simple but, as is rapidly becoming apparent in our changing city, the standard requirements are out-dated.

At least in the city and its suburbs, there’s a consistent message to build-up, to increase population density, and to change from a car-based city to a city which walks and uses public transport.  Why?  Well, it’s because we’re headed to being a city of 8 million people by 2050 (Plan Melbourne 2017-2050).

For a city the size of Melbourne, infrastructure gets built over a long time.  It’s wonderful that planners are prescient and can say an increase from 5 million to 8 million people over only 33 years means we must adapt now.  It means that by 2050 we have some prospect of building a city which remains workable in 2050.

But there’s a problem.  The rules in the Planning Schemes reflect an out-dated assessment of how many cars are required when buildings are used for different purposes. Why must there be a car-space provided for every one or two-bedroom dwelling? Why must there be two car spaces provided for every three-bedroom dwelling? As we start commuting differently, the need to use or own a car diminishes. Public transport, bikes and car-sharing makes car-spaces unnecessary.

It’s the same for offices, shops, medical centres and so on.  The standard rules often require an over-provision of car-parking which affects the uses to which you can put land.

Of course you can ask for a reduction in the number of car-spaces which need to be provided, but be warned:

• the stipulated process requires you to produce a Car Parking Demand Assessment;
• even if the responsible authority (normally the local council) grants your request, there’s a good chance that a neighbour will object to the grant of a planning permit on the basis that insufficient car-parking is to be provided.

More often than not, objections find their way to the Victorian Civil and Administrative Tribunal (VCAT). We did a quick count of references to clause 52.06 in VCAT decisions, and we found 420 decisions. This is a hotly litigated area because it’s an expedient way of objecting to a development you don’t like.

While the Planning Schemes are outdated, VCAT is now starting to make decisions which reflect what is feasible and sensible for a city heading toward a population of 8 million people.  This week Members Bennett and Keddie held in Ronge v Moreland City Council [2017] VCAT 550 that a development of 57 two and three storey townhouses should be allowed to proceed with only 63 car spaces provided, a short-fall of 58 from the requirements under the planning scheme which would ordinarily require provision of 121 car spaces.

Members Bennett and Keddie said at [70] that (emphasis added):

Although Ms Dunstan undertook a car parking demand assessment, as called for by Clause 52.06-6 when there is an intention to provide less car parking than that required by Clause 52.06-5, we found the whole discussion around car parking of marginal value given the strong policy imperatives about relying less on motor vehicles and more on public transport, walking and cycling. Census data from 2011 or 2016 is simply a snapshot in time, a base point, but we are not persuaded that such data should be given much weight in determining what number of car spaces should be provided in future, for dwellings with different bedroom numbers. Policy tells us the future must be different. We consider that oversupplying parking, whether or not to comply with Clause 52.06, has the real potential to undermine the encouragement being given to reduce car based travel in favour of public transport, walking and cycling.

This decision makes plain that you can achieve a parking reduction, but even if the responsible authority is on-side, neighbours’ objections might well mean VCAT hearings are unavoidable.  It might also mean engaging barristers and commissioning expert evidence.

While we think that clause 52.06 of the various Planning Schemes needs urgent reconsideration, it remains the law.  If you’re building, or moving into new premises, the rules for car-parking are not simple and you may need to:

• apply for a permit;
• apply to reduce the car parking requirement;
• produce a Car Parking Demand Assessment; and
• produce a Car Parking Plan.

If there are objections, you may need to be represented at VCAT and commission expert evidence.

Sinclair + May can help. We can provide advice concerning whether you are subject to an exemption from the car-parking rules.  We can also help you navigate the processes and, if necessary, represent you at VCAT. So, if you’re putting existing premises to a new use, building or extending, and you’d like advice about your car-parking obligations, contact Sinclair +May.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published May 15, 2017