Posted 18/8/06

MRRA Submission:  Macedon Ranges Council's Draft “Cash-In-Lieu Of Car Parking” Policy

Thank you for this opportunity to comment on Council’s draft Cash-In-Lieu Of Car Parking Policy, as exhibited. The Association wishes to raise the following issues.

Does The Policy Meet Statutory Requirements, Does It Carry Statutory Weight?

The draft policy seeks to vary planning scheme parking rates at Clause 52.06 of the planning scheme, and to introduce a mechanism to allow Council to take cash from businesses/developers in lieu of providing required parking spaces.

The Association submits that Council does not appear to be empowered to prepare and implement such a policy, and that the draft policy will carry no statutory weight.

The planning scheme sets out processes Council must follow to enable it take the actions proposed in the draft policy.  From Clause 52.06-6, (and the Practice Note: Parking Precinct Plans, DSE, July 2002, which describes the purpose of Parking Precinct plans and how they are to be prepared and implemented), it seems clear that Council may only vary planning scheme parking rates, and initiate a cash-in-lieu scheme, after preparing a Parking Precinct plan and incorporating the plan into the planning scheme.  A Parking Precinct plan, and specific information from it, must be included in the schedule to Clause 52.06 for the changes proposed by Council to have a statutory basis and effect.

Clause 52.06-6 states a Parking Precinct plan must contain information about the purpose of the plan, the area to which it applies, parking outcomes to be achieved by the plan, an assessment of car parking demand and supply in the precinct, and any locational, financial, landscape or other actions or requirements necessary to implement the plan.  The exhibited policy does not contain this information which is pre-requisite for making – and strategically justifying – the changes the draft policy proposes.  The Association notes Council has not even undertaken parking studies for the main towns in Macedon Ranges.

Further, the policy’s proposed blanket application of reduced parking rates (without a Parking Precinct plan) side-steps and conflicts with the planning scheme’s requirement that all applications for waiver or reduction of parking spaces be measured, on merit and on an application-by-application basis, against criteria specified in Clause 52.06-1. 

Is Council Empowered To Make A Section 173 Agreement?

The draft policy proposes to ‘bind’ applicants to cash-in-lieu payments by a Section 173 agreement.  The question is, can Council make such an agreement in relation to the matters addressed in the draft policy?  Section 180 of the Planning and Environment Act states that Council may not make an agreement under Section 173 that requires or allows something to be done which would breach a planning scheme.  As Council has not met the planning scheme’s statutory requirements (i.e. the preparation of a Parking Precinct plan) for taking the actions it proposes, it is submitted that implementing the policy would breach the planning scheme, and making an agreement would therefore be outside Council’s powers.

Other Concerns And Questions

• There is little ‘policy’ format or content in the exhibited document.  It appears to be more an explanatory statement than a policy per se.  For example, the policy is silent on the outcomes it seeks to achieve, the issues it responds to, and what circumstances would trigger its application. 
• The draft policy includes a table which refers to shops in Gisborne.  It is not clear if this table is policy or an example.  Is the table intended to indicate where the policy applies?  If so, what policy applies elsewhere?   Which zones and use/development would it apply to?
• The draft policy lacks information about how it would be administered and how accountability/paper trails would be created.  It does not contain auditing, monitoring or reporting proposals.  How would money to be taken from applicants be managed?  How are impacts of reduced parking approvals to be measured?  What reporting/monitoring systems would be employed (e.g. types of development, cumulative parking shortfalls, frequency of reduced parking approvals, impacts on surrounding land use and accessibility, how much is paid and when, how many spaces Council provides and when and where, and so on)?   For transparency and accountability, cash-in-lieu transactions / approvals must be a responsibility and function of full Council.  They should not be dealt with under officer delegation. 
• What material will Council rely on to inform decisions?  That is, what information is to hand to provide guidance on the appropriateness and impacts of reduced parking requirements upon, for example, street, traffic and pedestrian function?   On the availability and effectiveness of ‘alternative’ parking areas (i.e. providing parking away from the development)?  
• Who does the site valuation?  Why is the valuation tied to capital unimproved site value?  Does Council propose to purchase only unimproved land as alternative parking sites?  Does this adequately cover costs if, say, structures need to be demolished?
• How would a shortfall of car spaces, to which the cash-in-lieu principle would be applied, be calculated?  Against the planning scheme’s requirements, or against the draft policy’s reduced requirements? 
• Would such a policy result in Council taking cash multiple times for the same off-site car spaces i.e. ‘double dipping’?   Currently off-site car spaces accredited to existing businesses are often also accredited as ‘parking provision’ for new businesses /development.  What equity principles does Council propose to apply?  What parameters are proposed to avoid ‘doubling up’ and re-assigning car spaces previously paid for and ‘provided’ by existing businesses to new development?
• Does a cash-in-lieu ‘credit’ run with the property, the business or the owner?   If the business or owner changes, is there a new liability for cash-in-lieu payments?  Would cash-in-lieu apply to changed use, or development extensions, which trigger increased parking requirements?  e.g. a retail shop or office converted to a restaurant or wine bar? 

Conclusion

The draft policy is premature, an expression of policy intent rather than a legally-binding and enforceable instrument.

The Association’s view is that the policy is in fact ultra vires, and if implemented, actions taken would be open to legal challenge, potentially exposing ratepayers to costs and compensation claims.   Council also runs the risk of being seen to approve development (regardless of merit and impacts) simply to ‘get the money’ rather than making informed decisions and acting in the best interests of the broader community.

Council may not arbitrarily change planning scheme requirements or operate outside the Victorian legislative framework.   To reduce parking provision requirements and take cash-in-lieu payments for parking deficits, Council must follow the processes and do the work prescribed by the planning scheme.  That work starts with parking studies for each town and comprehensive, proactive consultation – especially with existing traders.