1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the statement of grounds is amended by changing the name of Mark Anthony Geyer to:

1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

• TP001 (rev. j dated 14/4/2023), TP110 (rev. j dated 14/4/2023), TP111 (rev. g dated 14/4/2023), TP120 ((rev. d dated 12/4/2023), TP130 (rev. h dated 12/4/2023), TP140 (rev. f dated 12/4/2023), TP200 (rev. f dated 12/4/2023), TP300 (rev. h dated 14/4/2023), TP310 (rev. f dated 12/4/2023), TP320 (rev. f dated12/4/2023) TP500 (rev. c dated 14/4/2023)

1. In application P1739/2022 the decision of the responsible authority is set aside.
2. In planning permit application DC/309/2022 a permit is granted and directed to be issued for the land at 723 Calder Highway Maiden Gully Pty Ltd in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • construction of a building or construction or carrying out of works under clause 34.01-4 of the Commercial 1 Zone;
   • construction of a building or construction or carrying out of works under clause 43.02-2 of the DDO;
   • construction of a building or construction or carrying out of works associated with 'Retail' under clause 44.06-2 of the BMO;
   • construction or putting up of signage under clause 52.05-2;
   • reduction in the number of car parking spaces required under clause 52.06-5;
   • removal, destruction or lopping native vegetation under clause 52.17-1;
   • use of the Subject Land to sell or consume liquor under clause 52.27; and
   • creation or alteration of access to a road in a Transport 2 Zone under clause 52.29-2,

Susan Brennan SC and Carly Robertson of counsel instructed by Planning and Property Partners

• Alison Milner. Town planning.
• Craig Czarny, Urban Design.
• Valentine Gnanakone, Traffic Engineering.
• Rhys Quick, Economic Analysis.
• Charmaine Dunstan, Traffic Engineering.

Paul Connor KC and Louise Hicks of counsel instructed by Darren Wong of Planology.

Ian Munt of counsel instructed by Best Hooper Lawyers

Develop the land with a supermarket, 11 speciality retail shops and food and beverage outlets, a licensed premise (bottle shop), associated car park and loading areas, business identification, removal of native vegetation and altering access to a road in a Transport 2 Zone.

Application under section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time.[1]

Clause 43.02: Design and Development Overlay Schedule 10 (DDO10).

Clause 44.06: Bushfire Management Overlay (BMO) (part of site).

Clause 34.01-4: construct a building or construct or carry out works.

Clause 43.02-2: construct a building or construct or carry out works.

Clause 44.06-2: construct a building or construct or carry out works associated with 'Retail'.

Clause 52.06-3: reduce the number of required car parking spaces.

Clause 52.17-1: remove, destroy or lop native vegetation.

Clause 52.27: use the Subject Land to sell or consume liquor.

Clause 52.29-2: create or alter access to a road in a Transport 2 Zone

The review site is part of the Maiden Gully Town Centre, identified in the Maiden Gully PSP. The town centre comprises a range of commercial, educational and community uses. Land is generally flat with significant exotic and native vegetation on both public and private land. The surrounding area comprises a mix of large rural parcels of land and vacant lots, largely to the north and east. Low-scale residential development occurs further south of the Subject Land.

The review site is located on the southern side of the Calder Highway Service Road in Maiden Gully, which is about 7km from the Bendigo city centre.

The site comprises two contiguous lots and has an irregular configuration with frontages to the Calder Highway Service Road of about 144.75 metres, to McNamara Drive of about 104.37 metres and to Carolyn Way of about 72.25 metres. The site has an area of 14,559.69 m2.

The site is currently occupied by the Maiden Gully Post Office, a café, office and a dwelling on 715-717 Calder Highway and a caravan park known as the Avondel Caravan Park on 723 Calder Highway.

• To the south, there is a vacant, irregularly configured Council owned parcel designated for 'future community use'. Further south, beyond the Carolyn Way/McNamara Drive intersection the primary land use is residential.
• To the north-east an irregularly shaped lot accommodates the Maiden Gully Community Hall. The Maiden Gully Primary School is located to the southeast.
• To the west, on the opposite side of McNamara Drive, is a vacant irregularly shaped lot of about 2.1 ha. The site is zoned Commercial 1 and benefits from a permit allowing a supermarket (3,200m2), associated car parking and loading facilities.
• Further west, also in the Commercial 1 zone, there are retail and similar uses including an IGA supermarket, a restaurant, pathology, a medical practice, early education centre, Gully, and community uses and public open space.
• To the north, on the opposite side of Calder Highway land is zoned General Residential and is designated in policy as a residential growth area. The residential area then transitions to the Farming zone further to the north.

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for a retail development at 715 and 723 Calder Highway, Maiden Gully.
2. Prior to the hearing, the applicant gave notice of amended plans prepared and circulated in accordance with the Tribunal's practice requirements.
3. The applicant at the start of the hearing applied to amend the application. There was no objection to that application and I amended the permit application by substituting the amended plans.
4. After assessing the amended plans, the Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons[3]:
   • The proposal is inconsistent with the decision guidelines of the Commercial 1 Zone, particularly with regard to the provision of car parking and the effect of traffic to be generated;
   • The reduction of 33 car parking spaces is not considered satisfactory pursuant to the requirements of Clause 52.06; and
   • The proposal would result in a detrimental impact on the landscape of the area due to the loss of vegetation contrary to Clause 52.17 of the City of Greater Bendigo Planning Scheme.
5. There are objectors to the application.
6. PCDP Development Pty Ltd recently acquired land located at 731 - 735 Calder Highway immediately to the west of the review site and separated from the review site by McNamara Drive. The objector's land is zoned Commercial 1 and benefits from a permit allowing a supermarket (3,200m2) and specialty stores (1,511m2), associated car parking and loading facilities[4]. PCDP Developments Pty Ltd objects to the grant of a permit on the following grounds:

(a) The proposal represents an unacceptable built form outcome in its physical and strategic context;

(b) The proposal does not provide an acceptable landscape outcome;

(c) The proposal would involve the unacceptable removal of existing and native vegetation from the Subject Land;

(d) The proposal will result in unacceptable car parking and traffic management outcomes; and

(e) The proposal is otherwise inconsistent with the proper and orderly planning of the area and will result in an unacceptable planning outcome.

1. PCDP submits that the proposal is outsized for its location and strategic context. It submits a more restrained and respectful response is required for the Subject Land within Maiden Gully.
2. PCDP's submission focusses primarily on physical layout and design issues but maintains those concerns in the context of its view that the proposal results in a significant increase in supermarket and other retail floor space in Maiden Gully.
3. Maiden Gully Supermarkets Pty Ltd operates the existing IGA Supermarket located about 250m to the west of the subject land at 737 Calder Highway, Maiden Gully. Maiden Gully Supermarkets occupies the land at 737 Calder Highway as a tenant. The objector opposes the grant of a permit on the following amended statement of grounds:

(a) The proposal is contrary to the planning policy framework.

(b) The proposal is contrary to Council's Commercial Land and Activity Centre Strategy 2015 and Maiden Gully Precinct Structure Plan.

(c) The proposal will undermine the Maiden Gully neighbourhood activity centre.

(d) The proposal will have unacceptable impacts on the surrounding road network.

(e) The proposal is contrary to the orderly and proper planning of the area.

(f) The proposal fails to deliver a net community benefit.

1. Having considered the submissions and the evidence, I have concluded that the principal issues to be decided in this matter can be categorised as follows:
   1. Is the proposal acceptable in its strategic context?
   2. Does the proposal achieve an acceptable built form and urban design outcome?
   3. Is the provision of car parking acceptable and is the proposed management of its traffic impacts acceptable?
2. I have concluded that the proposal is acceptable with respect to each of these matters and all other relevant matters. I have therefore directed that a permit issue subject to permit conditions.
3. My reasons are set out below.

1. It is proposed to develop the review site with a supermarket (to be leased to Coles Supermarkets), 11 speciality retail shops and food and beverage outlets, a licensed premise (bottle shop) (to be leased to Liquorland), associated car park and loading areas, business identification, removal of native vegetation and altering access to a road in a Transport 2 Zone.
2. The proposal comprises two buildings. Building A sited in the western part of the site accommodates a 3,650m2 supermarket, a 201m2 bottle shop associated with the supermarket, six shops with a total floor area of 544m2, and three food and beverage tenancies with a total floor area of 268m2.
3. Building B is located along the site's southern boundary and accommodates two shops with associated outdoor seating.
4. Conceptually, the proposal's layout is represented in Fig.1 below.

Fig.1: Conceptual site layout extracted from page 10 of the evidence statement of Craig Czarny.

1. The amended plans provide details of the proposal's built form, signage and landscaping. The plans depict a conventional commercial development incorporating contemporary building materials and pitched roof structures.

IS THE PROPOSAL ACCEPTABLE IN ITS STRATEGIC CONTEXT?

1. The parties presented me with comprehensive and detailed submissions and evidence about the relevant planning scheme provisions and policies. In large part there is no substantive dispute about these matters. It is not necessary for me to repeat here that material about which there is no dispute, other than to record that:
   • The Urban Strategic Framework Plan in Clause 02.04 of the Scheme identifies the Site within a designated Large Activity Centre at Maiden Gully (the Maiden Gully Activity Centre), with a Residential Growth Area to the north and east.
   • The review site is zoned Commercial 1 under the Greater Bendigo Planning Scheme and relevantly, a permit is not required to use land for a Shop, which includes a supermarket. A permit is required to construct a building or construct or carry out works.
   • The Maiden Gully Activity Centre is not included in the schedule to the Commercial 1 zone. A maximum leasable floor area does not apply for either shop or office uses.
   • A Design and Development Overlay (DDO10) applies to the review site. A permit is required to construct a building or construct or carry out works, but the design objectives of DDO10 are related to residential development and subdivision and is of limited relevance to the consideration of the current proposal, other than informing the form and density of residential development in the affected area.
   • Other planning scheme provisions affecting the review site call for consideration of detailed or specific aspects of the proposal. These include the Bushfire Management Overlay (BMO) which affects part of the site, and particular provisions relating to signage (Clause 52.05), car parking (Clause 52.06), removal of native vegetation (Clause 52.17), use of the land to sell or consume liquor (Clause 52.27), and to create or alter access to a road in a Transport 2 zone (Clause 52.29).
2. The planning scheme provides policy level guidance around the exercise of discretion in relation to this proposal. The policies are wide ranging across multiple issues but relevant to the consideration of this proposal, they include:
   • Support for the creation of ten minute neighbourhoods, and creation of a network of attractive neighbourhoods that allow most people to access their daily needs within a 10 minute walk or cycle trip[5].
   • Support for the development of an identified retail hierarchy of activity centres[6].
   • Support for the creation of sustainable urban areas and the facilitation of environmentally sustainable built environments that allow for active transport and healthy lifestyle choices[7].
   • Recognition of the municipality's retail base as an important element of the City's economy. Significant demand for commercial floor space until 2035 is anticipated[8].
   • Support for the continued growth and diversification of activity centres to give communities access to a wide range of goods and services, providing local employment and support for local communities[9].
   • Encouragement for improved social, economic and environmental performance and amenity of activity centres[10].
3. The hierarchy of activity centres for the municipality is set out at Clause 11.03-1L. The Bendigo City Centre is identified as the principal retail and commercial centre for northern and central Victoria. The next level in the hierarchy is nominated as large activity centres. Maiden Gully is included as one of nine large activity centres of which it and Huntly have a 'future' designation attached to them.
4. In relation to the Maiden Gully Activity Centre specifically, policy encourages its development as a location with a range of economic, social and some civic activities, together with goods and services to meet the daily and weekly needs of the suburban catchment[11].
5. Centre specific strategies are included at Clause 11.03-1L. The strategy for Maiden Gully Large Activity Centre is:

Facilitate development of an expanded supermarket offer in Maiden Gully Large Activity Centre as the Maiden Gully North East growth area is developed.

1. Policy guidelines also at Clause 11.03-1L are provided for each of the activity centres. The policies call for the consideration of the 10 minute neighbourhood principles set out in Clause 02.03-1, and the floorspace projections for each activity centre included in the table to the Clause. For Maiden Gully, the table specifies a floor space projection of 1000m2 for specialty and hospitality uses, and 5,100m2 for supermarkets.
2. Strategic planning for the Maiden Gully growth area as a whole, dates from 1996 when a structure plan was prepared and which led to the introduction of DDO10. As I have commented above, DDO10 is of limited relevance to this application because it relates primarily to residential development and subdivision. The review site in that document was part of a broader triangular shaped parcel of land designated as non-residential, and is excluded from the precincts shown in Map 1 of the structure plan[12].
3. A revised structure plan was prepared in 2013 and the Council subsequently adopted the Maiden Gully Structure Plan dated September 2020. This structure plan, referred to throughout the hearing as the Adopted PSP, applies to an area of 700 hectares generally northeast of the Calder Highway.
4. The Adopted PSP has not been incorporated into the planning scheme. I was advised that progress on a planning scheme amendment to give effect to the Adopted PSP is pending the completion of native vegetation and bushfire assessments[13].
5. I was advised that a review of the now outdated 2015 Land and Activity Centre Strategy is also contemplated.
6. Notwithstanding the lack of progress in incorporating the Adopted PSP into the planning scheme, it is a comprehensive document which places the Maiden Gully growth area into its regional strategic context, and provides broad policy direction for its future growth. It is therefore a document which is appropriate to consider, although I recognise that its final form remains uncertain.
7. The purpose of the Adopted PSP is stated as being to provide _a long term strategic plan to guide the future urban development of Maiden Gully. It describes how the land is expected to be developed, and how and where services are planned to support appropriate developmen_t[14].
8. An indicative yield of 4,152 dwellings and a potential population of 10,800 people is forecast for the growth area[15].
9. Under the heading Employment and Activity Centres, the Adopted PSP describes the review site as being part of an existing small commercial centre that is centrally located and prominently positioned with a frontage to the Calder Highway service road.
10. The adopted PSP states that with respect to the activity centre:

Some of the key issues facing the commercial centre are that there is an oversupply of land zoned for business uses, it is currently relatively fragmented in terms of its spatial layout and the transport connections are poor, particularly for linking across the Calder Highway and accessing shops by foot or bike. As the wider population of Maiden Gully grows, so too will the commercial centre. This centre will provide a strong and centralised commercial precinct.

Employment and new business within this area will be driven predominately by market forces however the Structure Plan aims to ensure that there is sufficient flexibility to provide a range of commercial centre uses and maximise opportunities to work, shop and socialise locally[16].

1. The Adopted PSP references a commercial Land and Activity Centre Strategy (2015) that identifies the Maiden Gully Town Centre as being an "Activity Centre". It is stated that the strategy identifies that by 2021 the Town Centre will need 2,400m2 of floorspace (2,000m2 for a supermarket and 400m2 for specialty retailing), increasing by 2031 to 3,700m2 (3,100m2 supermarket and 600m2 specialty retailing).
2. The Adopted PSP further states that a retail needs assessment completed as part of the PSP identified a future neighbourhood centre near the Marist School would provide for an additional 2,000m2 of specialised retail floorspace and 3,000m2 of office floorspace.
3. It is immediately apparent from the above, that the floorspace figures quoted in the Adopted PSP differ from those included in the table at Clause 11.03-1L. I will address the significance of the discrepancy later in this decision.
4. Relevantly, the adopted PSP in the table under the heading Precinct Infrastructure Plan, states that a signalised arterial intersection and extension of Carolyn Way with Maiden Gully Road at Calder Highway is anticipated as part of a transport and movement network and connection with the broader area[17]. The lead agency for the intersection is the Department of Transport and accordingly the intersection is not included as an item Development Contributions Plan.

Assessment of the proposal's strategic acceptability.

1. Having regard to the relevant planning scheme provisions including relevant policies that are not part of the planning scheme, the Council submits that the review site is suitable to accommodate some form of high density supermarket and/or retail development.
2. The Council acknowledges that the review site's physical context including its large, consolidated status (1.46 ha), its three frontages to the Calder Highway service road, McNamara Drive and Carolyn Way, and its absence of sensitive land use abuttals, are relevant to a consideration of the review site's suitability to accommodate the proposal.
3. The Council's opposition to the proposal relate primarily to car parking and traffic management issues and the extent of vegetation loss associated with the proposal.
4. Mr Munt who appeared for PCDP Developments also raised objections to the proposal's built form, site layout, its landscape response, unacceptable native vegetation removal and unacceptable car parking and traffic management outcomes.
5. Mr Munt submitted the proposal is unacceptable in its physical and strategic context and is otherwise inconsistent with the proper and orderly planning of the area and will result in an unacceptable planning outcome.
6. I address these issues subsequently.
7. Maiden Gully Supermarkets submit that the proposal lacks strategic justification.
8. The objectors acknowledge that the proposed uses are not subject to the grant of a permit, but submit that strategic considerations associated with the development of retail floor space are relevant considerations even if the application is for development only.
9. It is their submission that considerations as to whether or not the proposal is premature or contrary to orderly planning are relevant and critical. The objectors referred to several decisions of this Tribunal and higher jurisdictions in support of their submission on this point.[18]
10. Prior to exploring in detail the issues around the strategic acceptability of the proposal, it is appropriate that I comment on the relevance of strategic considerations in the assessment of a development application in circumstances where a permit is not required for the use.
11. Having regard to the submissions made to me and to the various authorities referred to, I agree that it is relevant to consider whether there is strategic justification or consistency with policy in approving this development.
12. I agree with Mr Connor KC who appeared for Maiden Gully Supermarkets Pty Ltd that issues of sequencing, orderly planning and prematurity are, or at least can be relevant considerations, but I emphasise that the relevance of each of these issues and the weight to be accorded to each of them will vary from case to case, depending on the facts and circumstances applicable in each case.
13. I am also of the view that the importance of a shop being a section 1 permit not required use in the Commercial 1 zone must not be overlooked when undertaking a balanced consideration of competing planning scheme provisions.
14. It is relevant in this respect that the Commercial 1 zoning of the land is intended to implement policy and relevantly to create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses[19]
15. The inclusion of 'shop' as a section 1 permit not required use in the zone is a deliberate statutory mechanism intended to implement the purpose of the zone.
16. The decision of His Honour Justice Osborn in the Burns Bridge case referenced above, places the relationship between use and development into its proper context. His Honour commented in that decision that the requirement for a development permit does not transform a Section 1 use into a Section 2 use. His Honour's decision stands for the proposition that while it may be accepted that the discretion granted for the purpose of controlling development is not for the purpose of regulating use, it does not follow that the 'use' consequences are necessarily irrelevant to the exercise of discretion.
17. Importantly His Honour's decision in the Burns Bridge case did focus specifically on the issue of prematurity. His Honour commented that:

.....In my view it is clear that in the present case the Tribunal deliberately applied this concept of prematurity to the facts before it. It ultimately concluded that the strategic planning circumstances rendered the grant of a permit "premature." It did not reject the proposal outright. Insofar as it considered the relevance of land use considerations to a permit application for development approval, it ultimately applied such considerations specifically within the context of asking itself whether the proposal should be regarded as 'premature'...[20]

...if the determination of a permit application under the current controls has the potential to materially impact upon the implementation of a relevant strategic plan or seriously entertained planning proposal then it may be refused as premature. It may not be in the public interest to grant the permit if the granting of the particular application has the capacity to materially impact upon the satisfactory implementation of a plan of broader strategic significance[21].

1. It follows that I am satisfied that the consequences arising from the land use of a development permit may, in appropriate circumstances, constitute relevant factors to be weighed when considering the grant of a permit.
2. Returning to my consideration of the strategic acceptability of this proposal, the objectors submit that relevant policy provides significant guidance concerning the development of retail floor space in this municipality, particularly as to its preferred location and quantum.
3. Mr Connor emphasises those elements of policy which call for the management of supermarket and retail development to achieve an equitable expansion of supermarket and retail development to facilitate a range of viable activity centres that will perform their desired and dedicated functions.
4. Mr Connor submits that there is only qualified strategic support for an expanded supermarket offer in the Maiden Gully Activity Centre with that support linked to the growth of the Maiden Gully Northeast growth area. Mr Connor submits there has been little progress with the development of the growth area, reflected in the fact that the majority of the area continues to be in the Farming Zone. It is submitted that the status and final form of the Adopted PSP remains uncertain pending the completion of further studies around native vegetation management and bushfire risk.
5. Having regard to the above, Mr Connor submits:

As matters currently stand, there is a real and live risk that the condition precedent for the facilitation of supermarket expansion in this activity centre will not be realised in the short to medium term. It would also be wrong to be bullish about the projected land budget and housing yield provided in the PSP. Accordingly, there is a real likelihood that there will be less overall demand in the surrounding area for a second supermarket and that population growth will not manifest as predicted.

1. It is submitted that the grant of a permit for the current proposal would give rise to existing and permitted floor space totals for Maiden Gully in the order of 3,490m2 specialty retail and hospitality and 6850m2 supermarket[22].
2. I note that the floorspace figures quoted above assume that both the development already permitted and the proposal before me are both constructed in their currently proposed form.
3. It is pointed out that this floorspace provision exceeds the floor space projection for Maiden Gully of 1000m2 for specialty and hospitality uses, and 5,100m2 for supermarket included in the table at Clause 11.03-1L of the planning scheme. It also exceeds the forecast floorspace figures referenced in the Adopted PSP which are based on the 2015 Land and Activity Centre Strategy.
4. Mr Connor submits that the proposal before me gives rise to a substantial exceedance of the floor space guidelines, an outcome not consistent with those policy objectives that emphasise the managed distribution and function of viable activity centres for the benefit of the community as a whole.
5. Mr Conor relies on the evidence of Mr Nott in support of his submissions.
6. From a retail economic viewpoint, Mr Nott's evidence sought to answer three questions:
   • What is the appropriate level of retail development in Maiden Gully and surrounds given the level of demand?
   • What will be the likely impact of the proposed development on the existing and approved activity centre network?
   • What is the overall net benefit for the community?
7. Mr Nott analysed current supportable retail floorspace based on forecast population growth in the Maiden Gully trade area and concluded that the supportable retail floorspace will grow by 3,790 sqm to 7,630 sqm by 2036 (including 2820 sqm of FGL floorspace) and the supportable retail floorspace in the Maiden Gully trade area at full development will be 13,390 sqm (including 9,970 sqm of FGL floorspace). Mr Nott concluded:

.....that the proposed supermarket on the IGA site and the permitted specialty stores will meet the demand for FGL floorspace by 2026. After that time, demand will continue to grow beyond supply because of local population growth. By 2036, the shortfall between demand and supply in this retail sector will be 2,200 sqm. This shortfall could be met by progressive development of the two NACs proposed for the Maiden Gully trade area or by further development in the Maiden Gully LAC. The estimated demand will not be sufficient to support two large supermarkets (3,000+ sqm) at any time prior to 2036.

1. Mr Nott assessed the potential impacts of the Coles proposal (the current proposal before me) assuming that the IGA site is developed and the Coles centre is operational by 2026. He concluded:

........If both the proposals are constructed and operating over the period 2025 to 2026, the supply of FGL floorspace for the Maiden Gully area will be far more than the demand; supply will be 219% of the demand in 2026 according to my estimates......

........I believe that the medium-term retail demand would be insufficient to support the proposed Coles development in addition to the planned development on the IGA site in Maiden Gully. If it were constructed in the next few years, both retail offerings would experience very low retail turnover levels which would persist for some years, with potential shop closures and high vacancy rates. In addition, the development of surrounding centres - Marong Town Centre and the two planned NACs in Maiden Gully - would be compromised as potential investors would be faced with overwhelming competition from the larger centre at Maiden Gully. This would have adverse impacts on the accessibility of retail goods and services for the affected communities as well as for the development of community hubs.

1. Mr Connor submits that Mr Nott's evidence confirms that the approval of the Coles proposal and the development of the approved IGA expansion would compromise the structure, functionality and role of the host activity centre as a whole and would adversely impact the implementation of the activity centre hierarchy.

Conclusions about the proposal's strategic acceptability

1. Underpinning the Maiden Gully Supermarket submissions and evidence is an assumption that because the PCDP permit (originally granted in 2016 and not yet acted on) exists for a supermarket and specialty shops in the activity centre, a refusal of the current proposal is warranted on policy grounds.
2. While it is relevant for me to have regard to the existing permit, its existence is not something that can reasonably be relied on to preclude the consideration of a similar "as of right" use in the Commercial 1 zone in a different part of the activity centre.
3. Unlike the circumstances at play in the Burns Bridge case the proposal before me is for a development in an activity centre, identified as an existing but underdeveloped activity centre in which commercial development is encouraged to support future residential growth.
4. The fact that the PCDP permit has not been acted on is also relevant. Despite recent amendments to that permit and recent correspondence from PCDP indicating a commitment to act on the permit, I am unable to proceed in my assessment with absolute confidence that the permit will be acted on.
5. I discuss in more detail below the adverse consequences for the community of a scenario in which the PCDP permit is not acted on and the current proposal does not proceed.
6. Notwithstanding the above, I have had regard to the existence of the PCDP permit as part of my assessment of the proposal's strategic acceptability. The existence of the permit is not however a factor that persuades me to depart from my conclusion that the approval of the current proposal will contribute to the satisfactory implementation of the Council's strategic objectives.
7. I have reached this conclusion because:
   • In addition to the review site's Commercial 1 zoning and its designation as a Large Activity Centre (Future) the review site exhibits a number of characteristics that render it suitable for the development as proposed. These characteristics include:
     • It is a large, consolidated site with three street frontages including to the Calder Highway service road. It is a relatively unconstrained site and does not have immediate sensitive land use abuttals.
     • The site assumes a prominent location within the activity centre and consequently its development will contribute to the following relevant policy objectives:
       • It will concentrate major retail uses in a location that is highly accessible to the community.
       • It will contribute to growth and diversification giving communities access to a wide range of goods and services.
       • It will facilitate development of an expanded supermarket offer as the Maiden Gully Northeast growth area is developed.
   • Because of the above factors the proposal will advance the objectives of the ten minute neighbourhood.
8. My conclusions on this point are informed by the evidence of Mr Quick whose economic analysis found that under existing conditions, the Maiden Gully and Marong primary trade area is severely underserved by supermarkets, leading to unnecessary cost and inconvenience for local residents as they seek to meet basic shopping needs.
9. Having regard to the existence of the PCDP permit on adjoining land, Mr Quick also undertook an analysis of four development scenarios in order to ascertain an understanding of the anticipated economic impact of the proposal.
10. A summary of Mr Quick's analysis is as follows:
    • Scenario 1 - no retail development in Maiden Gully with existing businesses including the existing IGA continuing to trade in their current format.
    • Scenario 2 - The existing IGA is relocated to the adjacent development site at 731-735 Calder Highway in an expanded store developed under the PCDP permit, the existing IGA space converted to specialty shops and the Coles proposal does not proceed.
    • Scenario 3 - The Existing IGA and current specialty shops continue trading in their current location with the Coles proposal proceeding.
    • Scenario 4 - Both the Coles proposal and the Expanded IGA proceed, resulting in two full line supermarkets with additional specialty space.
11. Unsurprisingly Mr Quick's analysis demonstrate the likelihood of different development outcomes but under scenarios 2, 3 and 4 increased retail floor space is provided at different times in response to growth in the activity centre's trade catchment.
12. The analysis under Scenarios 1 and 2 proceed on the assumption that the current proposal does not proceed.
13. The analysis for Scenario 1 is a worst case scenario in which an existing significant undersupply of supermarket floorspace will reinforce the existing IGA's current monopoly position to the detriment of the community. This outcome makes no contribution to the achievement of policy objectives for the activity centre and the growth area as a whole. There is no community benefit associated with this scenario.
14. In Scenario 2 Mr Quick concludes the potential IGA relocation alone will not meet the needs of the Primary Trade Area population, let alone the broader trade area which includes the rural townships of Bridgewater on Loddon, Inglewood and surrounding rural areas. The supermarket provision would remain below average, with a large share of resident spending still being directed elsewhere.
15. Mr Quick's analysis demonstrates to my satisfaction that the grant of the permit for the current proposal would enable landowners and retail operators (existing and prospective) to make informed commercial decisions that lead to development outcomes that are each broadly in accordance with policy objectives.
16. Under Scenarios 3 and 4 , the grant of a permit for the current proposal makes an acceptable contribution to the achievement of the Council's strategic objectives.
17. Under Scenario 3, it is Mr Quick's evidence that:
    • The provision of supermarket space will be close to average in 2027, and will fall in line with population growth.
    • There is capacity for the existing offer including IGA to remain trading with the Coles development proceeding. IGA will be impacted, but given the strong trading level of the store currently, with growth in the coming years, even a sizeable proportionate impact would still leave the store trading at a solid and sustainable level.
    • The community will still be provided with the offer they need, with choice and added convenience key benefits, reflected in higher retained spending, and other Activity Centre retailers benefitting from the attraction of two anchor tenants.
18. Under Scenario 4, Mr Quick concludes:
    • The provision of supermarket space would initially be above average at 2027, implying the development of two full-line supermarkets may be early at this time, but not uneconomic.
    • However, given continued population growth, the relative provision of supermarket space will return to average levels over the next 5 years or so, with the turnover of all retailers returning to the levels sustained prior to the Coles development. Two full-line supermarkets can be sustained longer term.
    • The expanded IGA and supporting specialty shops in Maiden Gully, along with the Coles development will initially trade at lower levels per sq.m, but will be sustainable given subsequent growth.
    • The retail offer available to the community will be significantly enhanced, reflected in greater combined turnover within the Activity Centre and a higher share of resident spending retained.
19. On the basis of Mr Quick's evidence I am satisfied that any of the development outcomes pursued under each of the scenarios involving the grant of a permit for the current proposal will contribute to a net community benefit.
20. In my view Mr Quick's evidence is more informative than that of Mr Nott, primarily because Mr Quick provides a more comprehensive analysis of a range of possible outcomes over a period of time as this growth area develops.
21. Mr Quick's evidence also gives appropriate consideration to the decisions that will need to be made by those in the private sector who are ultimately responsible for implementing the Council's strategic objectives for the area.
22. In relation to the submissions that the grant of a permit in the absence of a finalised structure plan for the Maiden Gully Growth Area would be premature, I have commented previously that I consider the Adopted PSP to be a comprehensive document that provides useful guidance about the future growth of the area.
23. The fact that the Adopted PSP is subject to review does create some uncertainty as to the extent to which it can be reasonably relied on, especially with respect to the retail floorspace figures which are based on a study that is now eight years old.
24. I have taken the view that while there would be an undoubted benefit in having a finalised document available to me, a finalised structure plan is very unlikely to provide me with anything approaching absolute certainty. Planning schemes and structure plans are rarely constructed in a way that eliminates discretion in decision making. Judgements will inevitably still need to be made in the context of the discretions that are available.
25. In this case, the lack of a finalised structure plan does not equate to decision making in a planning vacuum. As I have detailed previously, there does exist a detailed policy framework in the planning scheme and in the Adopted PSP. Ample information is available to allow me to make an informed decision about permitting a supermarket and specialty shops in this activity centre in a designated growth area. .
26. I find the decision of His Honour Justice Morris (as he was then) and Senior Members Marsden and Read in Golden Ridge v Whitehorse CC[23] especially pertinent in this respect:

We have no doubt that the preparation of a structure plan for an activity centre can encourage appropriate development and promote more certain outcomes. But such a process is unlikely to be a panacea that will avoid the need to make difficult, and sometimes controversial, choices in response to particular development applications. How often have decision makers awaited some new report or study, in the hope that it will provide guidance and certainty, to have those hopes dashed when the report or study is published? Procrastination can be pointless, as well as unfair to affected landowners. We also suspect that too much might be expected of structure planning. Major development decisions concerning residential development are likely to be in the hands of the private sector, and will be motivated by opportunity and profit, not the content of a structure plan which, at best, can only vary the limits placed on development opportunities, not require them to be taken up.

DOES THE PROPOSAL ACHIEVE AN ACCEPTABLE BUILT FORM AND URBAN DESIGN OUTCOME?

1. The Council submits that the proposal's design response is acceptable because it activates the Calder Highway service road frontage, presents attractively to Carolyn Way and otherwise adopts conventional design principles aimed at providing attractive and functional pedestrian and shopper experiences.
2. Mr Munt however submits that the proposal fails to achieve an acceptable design response and functional layout because:
   • It turns its back on and directs a significant amount of truck and other supply and delivery traffic to McNamara Drive; and
   • Allows customer vehicles to enter and exit the proposed customer car park from the Calder Highway service road and Carolyn Way.
3. In Mr Munt's submission the layout results in:
   • A significant increase in supermarket and other retail floor space in Maiden Gully[24].
   • A poor quality pedestrian retail environment at the frontage to McNamara Drive and, as a consequence, a functional physical split between retail activity at the review site and retail activity at the balance of the C1Z land along Calder Highway, including but not limited to the land the subject of the PCDP Permit.
   • A substantial increase in traffic making trips along Carolyn Way to the proposed development.
   • The removal of almost all remnant native trees.
   • A substantial break between the proposed retail development and the Maiden Gully Public Hall.
4. As a consequence of the above PCDP submits that while a form of this proposal is supported by the planning scheme and could make a positive contribution to the growth of Maiden Gully, this proposal is too poorly designed to achieve that goal.
5. Maiden Gully Supermarkets broadly agrees with the PCDP submission about the proposal's form and layout. Mr Connor submits that the proposal is a poor outcome for walkability, centre cohesion and connection.
6. The proposal is described by Mr Connor as inward looking and fails to demonstrate how the proposal will connect with the development approved under the PCDP permit.
7. My consideration about these aspects of the proposal have been assisted by the evidence of Ms Milner and Mr Czarny both of whom concluded that the proposal's built form and site layout have responded acceptably to the site's physical and strategic context.
8. I agree with the evidence and I am satisfied that the proposal presents a functional and logical layout complemented by a built form which is both responsive to its context and contemporary in its presentation.
9. I am also satisfied that the design choices leading to the proposed orientation and site layout are sensible and well founded. While I can contemplate a layout that achieves a better connection with the balance of the activity centre and in particular the development approved under the PCDP permit, the proposed connections are nevertheless acceptable.
10. My assessment of the proposal's built form and layout has not been greatly assisted by the "Potential town centre structure plan" included as Plan 5 of the Adopted PSP. The plan is appropriately marked Concept Only and it provides little meaningful guidance as to the future form and structure of the activity centre.
11. While I acknowledge some of the criticisms levelled at the proposal, I make the observation that all developments can be open to criticism and it is not my role to pursue a design outcome that responds to all criticisms and seeks perfection.
12. My role is to decide whether the proposal before me is acceptable.
13. For the reasons articulated above, I am satisfied that this proposal is acceptable with respect to these matters.
14. In relation to concerns about the loss of native vegetation, this is an issue that does need to be considered having regard to the review site's Commercial 1 zoning and activity centre designation.
15. The proposal seeks to remove 0.324 hectares of native vegetation comprising eight remnant trees, three of which are identified as being large trees. This vegetation is broadly located close to the boundaries of the site and all are proposed to be removed in order to provide for carparking for the centre.
16. The applicant has demonstrated that required offsets can be sourced to appropriately compensate for the biodiversity impact. The proposed landscaping also provides some additional compensation for the loss of native vegetation.
17. I am satisfied that the removal of native vegetation is acceptable.

IS THE PROVISION OF CAR PARKING ACCEPTABLE AND IS THE PROPOSED MANAGEMENT OF ITS TRAFFIC IMPACTS ACCEPTABLE?

1. The Council submits that the quantum of car parking reduction sought has not been sufficiently justified. While Council accepts relevant policy in both the Scheme and the Maiden Gully PSP seeks to minimise car parking in activity areas, any reduction sought must be empirically justified.
2. The Council is critical of the empirical parking assessment undertaken by Ms Dunstan and Mr Gnanakone, especially in relation to the parking surveys relied on by the expert witnesses. Consequently the Council submits:
   • The car parking survey data Ms Dunstan relies on is not representative of car parking demand for supermarkets in 2023;
   • The example sites Ms Dunstan relies on are not analogous to the Subject Land; and
   • Ms Dunstan's analysis in support of applying the 50% discount to the statutory car parking demand for the other proposed uses is not empirically justified.
3. The Council also submits the review site does not enjoy the locational attributes that would be expected to contribute to an acceptance of reduced parking rates. The Council submits the site exhibits relatively low transit and walkability scores.
4. Neither Maiden Gully Supermarkets nor PCDP raise concerns about the quantum of car parking proposed.
5. The evidence of both Ms Dunstan and Mr Gnanakone on the provision of car parking is comprehensive and soundly based on appropriate, quantitative research. I am therefore not persuaded by the Council submissions that the car parking provision lacks justification.
6. I am satisfied that the provision of car parking is acceptable.

1. The Council and the objectors submit that the impact of the proposal on the management, functioning and safety of the wider road network is unresolved.
2. It is submitted that the proposal will have significant impacts necessitating mitigating works, the nature of which remains uncertain and the implementation of which is largely out of the control of the permit applicant.
3. The objectors and the Council submit that the level of uncertainty speaks to the lack of orderly planning and the prematurity of the proposal.
4. My assessment of the traffic impacts associated with proposal has been assisted by the evidence of Ms Dunstan and Mr Gnanakone both of whom undertook detailed assessments of the traffic volumes at intersections surrounding the review site to ascertain the existing level of performance, together with modelling of future scenarios to ascertain what impact the proposal will have on intersection performance.
5. The evidence demonstrates that there is an existing need for upgrades to the road network in the vicinity of the review site because of existing traffic and road network conditions. Particular attention focussed on the Calder Highway/Maiden Gully Road intersection which currently operates at a poor level of service during PM peak times.
6. Both Ms Dunstan and Mr Gnanakone attribute the poor level of service at this intersection to school traffic associated with the Marist College which is located at Patas Road, Maiden Gully.
7. The existing need for road network upgrades is reflected in the Adopted PSP which provides for a signalised intersection at Calder Highway/Maiden Gully Road, including an extension of Carolyn Way to form the fourth leg of that intersection[25]. The Precinct Infrastructure Plan (the PIP) at section 6 of the Adopted PSP identifies the Department of Transport as the probable funding and delivery provider for arterial roads (including intersections) generally. The construction of the signalised intersection at Calder Highway and Maiden Gully Road is identified in the PIP as a short term project with the Department of Transport as the lead agency[26].
8. This intersection is not included in the Development Contributions Plan because it is identified as a State funded responsibility.
9. Road network planning for the locality is also affected by requirements for significant works that have been imposed as conditions on permits for developments that have either not commenced or have not been implemented and are currently in contravention of those permit conditions. These include:
   • The upgrade of the Calder Highway/Beckhams Road/Schumakers Lane intersection (a permit requirement of the PCDP permit). I was advised that the permit applicant accepts the evidence of Ms Dunstan and Mr Gnanakone that it is appropriate that these works be included on any permit that may issue for the proposal in the event development of the proposal precedes the Expanded IGA.
   • The signalisation of the existing Calder Highway/Maiden Gully Road intersection which is a permit requirement of the approval for Stage 4 of Marist College. The relevant condition of the permit requires the signalisation of that intersection when the number of enrolled students reaches 1043 or by the commencement of the 2020 school year. The triggers under the permit for the intersection signalisation works have been reached and the required works have not been undertaken. I was advised that the Council is in receipt of an application to amend the permit to delete the requirement to undertake the intersection works. At the time of the hearing, the application had not been determined although the school has been advised that both Council officers and the Department of Transport are opposed to the amendment application[27].
10. There are also applications which at the time of the hearing were pending approval which have some impact on road network planning near the review site. These include a 61 lot residential subdivision at 708 Calder Highway, a 102 lot residential subdivision at 646 Calder Highway, 36, 40 and 70 Durstons Road, and a 44 lot residential subdivision at 680 Calder Highway.
11. Importantly Ms Dunstan and Mr Gnanakone in their evidence conclude the level of traffic generated as a result of the proposal can be adequately accommodated within the road network under post-development conditions and the existing road network will continue to operate satisfactorily.
12. Their conclusions are premised on a number of assumptions with respect to the implementation and timing of road network upgrades. It is Ms Dunstan's evidence that if the upgrade works are not implemented within the assumed growth scenario of ten years, an interim measure could be implemented to provide an additional service road exit to the Calder Highway, offering a substantial increase in capacity for right turn exit movements associated with the activity centre.
13. Mr Gnanakone supports Ms Dunstan's suggested interim measure.
14. I note however that the Department of Transport which maintains management responsibility for the Calder Highway, does not support the provision of an additional service road exit to the Highway, even as an interim measure.
15. Having regard to the above, it is apparent that there is a level of uncertainty around the implementation of identified road network upgrades, and the capacity of the applicant to address or contribute to the mitigation works that are required in this locality.
16. The difficulty these circumstances creates is conveniently summarised by Mr Munt in his reply submission when he comments that:

Even if Mr Gnanakone's and Ms Dunstan's evidence were accepted, therefore, the Tribunal is presented with a dilemma. On the one hand, the 'alternate' road access scenario will not be needed if the growth assumptions adopted by those witnesses were not realised. But on the other hand, if that growth does not materialise then the strategic case for the proposal is weakened, as the evidence of both Tim Nott and Rhys Quick shows. The case for this proposal depends on the case for growth at Maiden Gully. And that, in turn, and in all likelihood, depends on the delivery of road infrastructure at some unknown date.

It is all very well to say that the road infrastructure must be delivered, and so therefore it is safe for the Tribunal to proceed on the basis that it will be delivered. But that is to put the cart before the horse. Just as the delivery of growth will require planning as to the ultimate configuration of the road network, so should the delivery of a supermarket in an activity centre to serve that growth also require planning as to the ultimate configuration of the road network.

Viewed thus, this proposal is premature, relying too heavily on other parties - whether the Marist College or the Department - to deliver road infrastructure that is challenged or in doubt. A large supermarket and specialty retail proposal for the Maiden Gully Large Activity Centre should respond to, rather than pre-empt, planning for this area.

1. It is not unusual when considering applications in growth areas for there to be a level of uncertainty around the delivery of infrastructure and services on which a proposal is dependant.
2. Planning for growth areas rarely achieve a level of sophistication in which individual applications are approved so that each development neatly slots into a predetermined sequence of outcomes.
3. This is because in the planning for growth areas, there is inevitably some uncertainty for example, around the availability or timing of public funding. That is certainly the case here. Uncertainty also arises when the provision of infrastructure such as road upgrades are imposed as requirements on planning permits which may or may not be acted on. That is also the case here.
4. In circumstances where the level of uncertainty in relation to these matters is so significant that the consideration of a proposal raises unresolvable prematurity and orderly planning issues, it would be in the public interest for approval to be withheld for that proposal.
5. I am not persuaded these circumstances apply in this case.
6. I am satisfied about the acceptability of this proposal primarily because a comprehensive set of permit conditions are proposed that effectively address the matters outlined above and put in place processes that enable each of the matters identified above to be addressed and resolved.
7. The conditions require for example the submission and approval by the Council and the Department of Transport of an amended Transport Impact Assessment Report (TIA) that is required to address nominated issues. There is a requirement that mitigating works identified in the TIA must be implemented prior to the commencement of building and works. There is also a requirement that in the event development of this proposal commences prior to the development approved under the PCDP permit all roadworks required under that permit must be completed before the occupation of the proposal.
8. Significantly the Department of Transport has provided correspondence during the course of the hearing in which it confirmed its non-objection to the proposal and provided updated commentary on the evidence and the proposed permit conditions. The Department's support for the approach outlined above has informed my conclusion about the acceptability of this proposal.
9. In circumstances where I have found that this proposal contributes to the achievement of the Council's strategic objectives for the activity centre and the growth area more generally, I am satisfied that the approach outlined above is an acceptable method by which objector and Council concerns about prematurity in the face of uncertainty around road upgrade works, can be acceptably resolved.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

• construction of a building or construction or carrying out of works under clause 34.01-4 of the Commercial 1 Zone;
• construction of a building or construction or carrying out of works under clause 43.02-2 of the DDO;
• construction of a building or construction or carrying out of works associated with 'Retail' under clause 44.06-2 of the BMO;
• construction or putting up of signage under clause 52.05-2;
• reduction in the number of car parking spaces required under clause 52.06-5;
• removal, destruction or lopping native vegetation under clause 52.17-1;
• use of the Subject Land to sell or consume liquor under clause 52.27; and
• creation or alteration of access to a road in a Transport 2 Zone under clause 52.29-2,

1. Before development starts, amended plans to the satisfaction of the Responsible authority must be submitted to and approved by the Responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale and must be generally in accordance with the plans substituted in VCAT Proceeding P1739/2022, prepared by Clarke Hopkins Clarke labelled TP001, TP100, TP110, TP111, TP120, TP130, TP140, TP200, TP300, TO310, TP320, TP500-but modified to show:

(a) Amended plans in relation to the relocated click and collect facility, including:

(b) Amended plans in relation to signage, including:

1. Removal of signage proposed to the southern elevation of Building B.

1. The development permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the responsible authority.

1. Before the development starts, an amended Landscape Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale and be generally in accordance with the submitted Landscape Plan prepared by Papworth Design, LSK 001-002, Revision F, dated 11/04/2023 but modified to show and amended landscaping treat along the Calder Highway frontage reflecting the relocated Click and Collect facilities. All species selected in the amended plan must be to the satisfaction of the responsible authority.

1. Before the development is occupied, or by such later date as is approved by the Responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

1. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including replacing that any dead, diseased or damaged plants.

1. Before the development starts, an amended Transport Impact Assessment (TIA) report to the satisfaction of the responsible authority must be submitted to and approved by the Responsible authority. Once approved, the TIA will be endorsed and will then form part of the permit. The TIA must include the following:

(a) Any changes required by the Department of Transport and Planning, as outlined in Condition 32.

(b) The future intersection of Carolyn Way and McNamara Road (roundabout). The TIA must give appropriate consideration to the cross-sectional make-up of Carolyn Way and McNamara Road and confirm that the cross-section is capable of accommodating future demand associated with the approved supermarket redevelopment (AM/568/2015/A) at 731-737 Calder Highway & 14 McNamara Drive, Maiden Gully (daily traffic volume assessment for trafficable width and carriageway shoulder provisions).

(c) Further justification must be provided in respect of the notional 25% discount applied to traffic generation based on surrounding development, in particular the approved supermarket development (AM/568/2015/A). If justification is unable to be provided, demand assessments are to be updated accordingly.

(d) Plans demonstrating that adequate sight lines are in place for all intersections requiring upgrade as part of the proposed development (in accordance with the requirements of Condition 19). If sight lines are not achieved, measures to achieve relevant compliance are to be outlined, including whether any native vegetation removal will be required. Please note that any such approval would require separate planning approval. This assessment is to consider both posted and operational speeds for all roads assessed.

1. The exterior treatment of the building(s) including all exterior decoration, materials, finishes and colours must be to the satisfaction of the responsible authority. The exterior treatment of the building(s) must be maintained to the satisfaction of the responsible authority.

1. All tilt slab or pre-cast concrete buildings must be painted, treated, textured and thereafter maintained to the satisfaction of the responsible authority as shown in the endorsed plans.

1. Any equipment required for refrigeration, air-conditioning, heating and the like must be suitably insulated for the purpose of reducing noise emissions and must be located so as to not be highly visible from the street to the satisfaction of the responsible authority.

1. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.

1. The Sustainability management Plan (SMP) prepared by Sustainable Development Consultants August 2022 must be submitted to and approved by the responsible authority. Once approved, the SMP will be endorsed and will then form part of the permit. All works must be undertaken in accordance with the endorsed SMP and associated BESS reports. No alterations to the SMP and associated reports may occur without the prior written consent of the responsible authority.
2. Before the development is occupied, a report to the satisfaction of the Responsible authority must be submitted to the Responsible authority. The report must confirm all measures specified in the endorsed SMP and associated reports have been implemented in accordance with the approved plans and approved SMP. Photographic evidence or documentation of measures implemented included solar panel size and location (including Inverters), electric vehicle charging stations, rainwater tank location and connection to toilets, end of trip facilities, green wall, and commitments within the SDA and BESS reports where possible should be included.
3. Within 3 months of completion of the development, Buildings User Guides are to be submitted and approved to ensure compliance with ESD measures contained within Sustainability Management Plan.

1. Before the development is occupied, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be constructed to the satisfaction of the responsible authority and meet the following requirements and standards:

(a) Properly formed to such levels that they can be used in accordance with the plans.

(b) Parking bays and aisle widths must comply with Clause 52.06-9 Table 2.2890.6-2009, section 2 and must be signed in accordance with AS/NZ 1742.11-1999 and line marked in accordance with AS/NZ 2890.6-2009, section 3.

(c) The entry/exit, the internal roadway and the parking areas must be sealed and the car parking spaces line marked and maintained to the City's satisfaction (Clause 52.06-11).

(d) The carpark must be provided with public lighting in accordance with AS/NZ 1158.3.1 with fittings to minimise spill lighting on to neighbouring property (including road reserves) in accordance with AS/NZ 4282-1997.

(e) The "permeable pavement over car park bays" must be treated with an all-weather seal or some other durable surface.

(f) Drained.

(g) Clearly marked to show the direction of traffic along access lanes and driveways.

(h) Provided with disabled persons parking bays where required by the Building Code of Australia.

1. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. All car parking spaces must be designed to allow all vehicles to drive forwards both when entering and leaving the property.

1. Vehicular access to the subject land from any roadway or service lane (and vice versa) must be by way of a vehicle crossing(s) constructed at right angles to the road, to suit the proposed driveway(s) and vehicles that will use the crossing in accordance with the City of Greater Bendigo Infrastructure Design Manual. A Works within Road Reserves permit must be obtained from the City of Greater Bendigo's Engineering Unit before any work commencing in the road reserve.

1. On-street parking must be provided and line marked along the Calder Highway service road frontage adjacent retail spaces to the satisfaction of the responsible authority.

1. Before the development is occupied, road works, drainage and other civil works must be constructed to the satisfaction of the responsible authority in Carolyn Way, McNamara Drive and the Calder Highway Service Road in accordance with the City of Greater Bendigo Infrastructure Design Manual, relevant Australian Standards, and any recommendations included in the Traffic Impact Assessment Report (required to be prepared under condition 7 of this permit), and plans and specifications approved by the responsible authority and must include:

(a) Fully sealed pavement with kerb and channel on road frontages;

(b) Re-formation of on-street carparking on the southern side of the service road along the full site frontage. On-street carparking is to be reviewed and reconstructed, as required, in order to comply with relevant Austroads and / or Australian Standards.

(c) Re-formation of on-street carparking on the northern side of the service road to the west of the connection to the Calder Highway, through to the point directly north of the western boundary of the site adjacent to McNamara Drive. Car parking to be sealed with an all-weather surface and accompanying kerb, channel and underground drainage.

(d) Re-formation of on-street carparking and road width on the northern side of the service road to the east of the connection to the Calder Highway, through to the point directly north of the eastern boundary of the site shared with the adjacent community centre. Street width and car parking design dimensions are to meet the relevant Austroads and / or Australian Standards for the projected traffic demands. The on-street car parking which is already sealed and provided with an all-weather surface is to be reviewed and reconstructed, as required, in order to comply with relevant Austroads and / or Australian Standards.

(e) On-street car parking within the Calder Highway service road along the site frontage and directly opposite the site is to be maximised.

(f) Upgrade of existing bus stops on the north and south sides of the Calder Highway service road to meet current Department of Transport and Planning standards, consistent with the current configuration of the bus stops.

(g) Paved paths on the road frontages to the Calder Highway service road, Carolyn Way and McNamara Drive;

(h) Underground drainage;

(i) Stormwater detention;

(j) Stormwater quality;

(k) Appropriate street lighting.

1. Before the development starts, a Construction Management Plan (CMP) to the satisfaction of the responsible authority must be submitted and approved by the responsible authority. Once approved, the plan will be endorsed and will then form part of the permit. This plan must include, but not be limited to:

(a) A site-specific plan showing proposed erosion and sedimentation control works.

(b) Techniques and intervention levels to prevent a dust nuisance.

(c) Techniques to prevent mud and dirt being transported from the site to adjacent streets.

(d) The protection measures taken to preserve any vegetation identified for retention.

All works must be undertaken in accordance with the approved CMP to the satisfaction of the responsible authority.

1. Before the development starts, detailed drainage plans to the satisfaction of the Responsible authority must be submitted to and approved by the Responsible authority. When approved, the plans will be endorsed and then will form part of the permit. The plans must be drawn to scale with dimensions. The plans must include:

(a) Underground drainage;

(b) A point of discharge to the responsible authority's drainage system; and

(c) Stormwater quality.

1. Before the development starts, a written report and photos of any prior damage to public infrastructure must be submitted to and approved by the Responsible authority. The report must list the condition of kerb and channel, footpath, seal, streetlights, signs and other public infrastructure fronting the property and abutting at least two properties either side of the development. Unless identified with the written report, any damage to infrastructure post construction will be attributed to the development. The owner or developer of the subject land must pay for any damage caused to any public infrastructure caused as a result of the development permitted by this permit.

1. Any signage must not be animated, flashing or reflective.
2. Any signage lighting (internal or floodlit) must be installed and maintained to ensure there is no glare towards motorists or spillage of light onto the roadway or neighbouring properties.
3. All signs must be installed wholly within the property and not obscure the sightlines of motorists or pedestrians.

1. A Native Vegetation Removal Report will be provided containing additional impact assessment of all vegetation required for removal to facilitate required road upgrade as detailed at Conditions 6, 21, 22 and 32. When approved, the plan will be endorsed and will then form part of the permit.
2. Before the development starts the permit holder must advise all persons undertaking the vegetation removal or works on site of all relevant permit conditions and associated statutory requirements or approvals.

1. To offset the removal of area of native vegetation as detailed within the Native Vegetation Removal Report endorsed under Condition 1, the permit holder must secure a native vegetation offset, in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017) as specified below:

A general offset of the number of general habitat units detailed within the Native Vegetation Removal Report endorsed under condition 1:

• Located within the North Central Catchment Management Authority boundary or Greater Bendigo municipal district.
• With a minimum strategic biodiversity score of at least the number detailed within the Native Vegetation Removal Report endorsed under Condition 1.
• With a minimum of large trees, amount as detailed within the Native Vegetation Removal Report endorsed under Condition 1 of this permit.

Before any native vegetation is removed, evidence that the required offset has been secured must be provided to the satisfaction of responsible authority. This evidence is one or both of the following:

• An established first party offset site including a security agreement signed by both parties, and a management plan detailing the 10 year management actions and ongoing management of the site; and/or
• Credit extract(s) allocated to the permit from the Native Vegetation Credit Register.

A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Environment, Energy and Climate Action.

Monitoring and Reporting for Onsite Offset Implementation

In the event that a security agreement is entered into, the applicant must provide the annual offset site report to the responsible authority by the anniversary date of the execution of the offset security agreement, for a period of 10 consecutive years. After the tenth year, the landowner must provide a report at the reasonable request of a statutory authority.

1. If development commences prior to commencement of development under Permit AM/568/2015/A, all roadworks shown on the functional layout plan (Drawing No. G16974-01-03, Revision D, dated 15 January 2016) must be completed at no cost to and to the satisfaction of the Department of Transport and Planning, before occupation of the development
2. Prior to commencement of the buildings and/or works unless otherwise agreed in writing by Head, Transport for Victoria the following must be completed to the satisfaction of and at no cost to Head Transport for Victoria:

(a) Microsimulation (network) ort SIDRA network analysis (if Sidra does Microsimulation) with the current and future volumes for all intersections and road network bounded by:

1. The future signalisation of Carolyn Way and Maiden Gully Road with the Calder Highway to the east on the basis of information provided by the Department as to the ultimate configuration/projected traffic volumes of the intersection;
2. Beckhams Road and Schumakers Lane to the west;
3. Glenelg Drive and Carolyn Way to the south and;
4. Calder Highway to the north.

(b) An Amended Transport Impact Assessment report must be submitted to and approved by the Head, Transport for Victoria and the responsible authority. The Transport Impact Assessment must include the following:

1. All areas outlined in the above condition;
2. Future alteration of the intersection of Calder Highway and Calder Highway (service road) including the closure and left in left out of the Calder Hwy and the service connecting to the future Carolyn Way connection to the Calder Highway;
3. The proposed development at the 708 Calder Highway;
4. The impact on Beckhams Road, Schumakers Lane and Calder Highway;
5. The impact of a future upgrade to the Calder Highway / Maiden Gully/Carolyn Way intersection to a 4 leg, signalised intersection on the basis of information provided by the Department as to the ultimate configuration/projected volumes of the intersection;
6. An assessment of existing shared user path /footpath connections and options to improve and connect with the existing pedestrian network;

(c) Functional Layout Plans must be submitted to and approved by the Head, Transport for Victoria. When approved by the Head, Transport for Victoria, the plans must be endorsed by the responsible authority and will then form part of the permit. The plans must show:

1. The intersection of Calder Hwy and Calder Hwy (service road) to be left in left out only.
2. Any mitigating works arising out of the Transport Impact Assessment Report.
3. Indicative intersection lighting.

1. Prior to commencement of the buildings and/or works unless otherwise agreed in writing by Head, Transport for Victoria, a road safety audit must be submitted to and approved by the Head, Transport for Victoria and the responsible authority. The road safety audit must be undertaken by a suitably qualified road safety auditor at the functional layout and detailed design stage. Any mitigating works arising out of the audit must be included on the functional layout plan.
2. Prior to commencement of the use, unless otherwise agreed in writing by Head, Transport for Victoria, the following works must be completed to the satisfaction of and at no cost to Head Transport for Victoria:

(a) The intersection of Calder Hwy and Calder Hwy (service road) to be left in left out in accordance with the approved functional layout plan.

(b) Any mitigating works arising out of the Transport Impact Assessment Report.

(c) Pedestrian and shared user path connections.

(d) Intersection lighting to the Australian Standard.

1. The liquor store must not adversely affect the amenity of the locality.

1. Except with the prior written consent of the responsible authority, the Liquor Store use permitted by this permit must operate only between the following times:

(a) Monday to Saturday - 9am to 11pm.

(b) Sunday - 10am to 11pm.

(c) ANZAC day - 12pm to 11pm.

(d) No trading on Good Friday and Christmas Day.

(a) The development permitted by this permit is not commenced within four (4) years from the date of this permit; and

(b) The development permitted by this permit is not completed within six (6) years from the date of this permit.

The time within which the development must be commenced and/or completed may be extended, on written request to the responsible authority, before or within 6 months after the expiry of this permit where the development has not yet started or 12 months where the development has commenced.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] The Council's decision was made notwithstanding a recommendation from its officers to support the grant of a permit.

[4] The permit (the PCDP permit) was issued on 10 March 2016 and amended on 6 March 2023. Plans under the amended permit were endorsed by the Council on 21 March 2023.

[12] The document remains a background document under Clause 72.08 of the planning scheme.

[13] Under Section 60 (1A(g) because the Maiden Gully Precinct Structure Plan September 2020 has been adopted by the Council it is a document which the Council (and on review the Tribunal) may consider if the circumstances appear to so require.

[14] Maiden Gully Precinct Structure Plan September 2020, page 7.

[15] Maiden Gully Precinct Structure Plan September 2020, pages 13 & 16.

[16] Maiden Gully Precinct Structure Plan September 2020, page 22.

[17] Maiden Gully Precinct Structure Plan September 2020, page 45.

[18] Burns Bridge Services Pty Ltd v Greater Bendigo CC (Red dot) [2005] VCAT 1155 and on appeal subsequently on appeal Burns Bridge Services Pty Ltd v Greater Bendigo City Council [2005] VSC 422, [55] - [56], Osborn J, Piedmonte Supermarket & Liquor & Ors v Moreland CC [2012] VCAT 204, Save Bright Action Group v Alpine SC [2008] VCAT 1425.

[19] Clause 34.01: Commercial 1 Zone Purpose.

[20] [2005] VSC 422

[21] [2005] VSC 422

[22] Based on existing retail floorspace in the activity centre, the floorspace permitted at 731 - 735 Calder Highway under the permit which allows a supermarket (3,200m2) and specialty stores (1,511m2), associated car parking and loading facilities, combined with the floorspace associated with the current proposal.

[23] [2004] VCAT 1706

[24] I have addressed this aspect of Mr Munt's submission in my assessment of the proposal's strategic acceptability.

[25] Maiden Gully Precinct Structure Plan September 2020, page 31 (R44).

[26] Maiden Gully Precinct Structure Plan September 2020, page 45.

[27] I have proceeded in my assessment on the basis that the works identified in both the PCDP permit and the Marist College Permit are the subject of enforceable obligations and will be undertaken.