The Responsible Authority's decision is affirmed. No permit is granted in relation to Permit Application 99332.

Mr Peter McWhinney, Senior Statutory Planner, represented the Responsible Authority.

Mr David T. Gellion, Acting Manager Program Development, Eastern Region VicRoads, attended and represented that Authority on 30 November 2000 upon the request of the Tribunal. The Authority otherwise did not appear at the hearing.

Mr Stephen Jones, Barrister, instructed by Harle and Associates, appeared for the permit applicant. Mr Jones called the following expert witnesses:

* Mr John Henshall, Economist of Essential Economics Pty Ltd;

* Mr Henry Turnbull, Traffic Engineer of Turnbull Fenner Pty Ltd;

* Mr Roger Sanders, Road Safety Expert of Transport Management Australia; and

* Mr Allan Wyatt, Landscape Architect of ERM Pty Ltd.

An acoustic report was also tabled by Mr Jones, though its author - Mr Peter Fearnside of Marshall Day Acoustics Pty Ltd - was not called to present the report. This was by agreement of the other parties. The report, while consequently not tested under cross-examination, was accepted by the Tribunal as expert evidence.

Mr Matthew Townsend, Barrister, instructed by Network Planning appeared for a large group of objectors whose names remain on the Tribunal file. He called some of his clients to give evidence, being:

Mr Christian Zahra, Member of Parliament, made a submission to the hearing with the consent of the other parties.

Mr Ian de Bruyne, Manager of Capital Works for the Shire of Baw Baw was called by the Tribunal to further explain the Council views on the traffic implications of the development.

1. This application for review is one brought by the permit applicant in response to the decision by the Shire of Baw Baw to refuse planning permission to use and develop a lot on the southern side of the Princes Highway between the townships of Yarragon and Trafalgar for the purposes of a 24 hour truck stop and other related commercial facilities.

2. The Council's permit application number is 99332.

3. The site is located at the junction of the Princes Highway East and Rankin Road, approximately 5km to the east of Yarragon township and 2km to the west of Trafalgar. It has a total area of 1.928ha, a frontage to the southern side of the highway of 220.69m and a sideage to the eastern side of Rankins Road of some 100.33m.

4. The subject land is formally known as Lot 1 on Plan of Subdivision 321860G. The title was created by VicRoads as part of a land holding rationalisation in 1993/94 when the highway was duplicated. VicRoads acquired a strip along the Princes Highway frontage of the then lot and increased the splay at the corner of Rankins Road. A rural produce store and a house which existed prior to the highway duplication works were demolished. Under a planning permit issued on the 25th of March 1994 by the former Shire of Narracan the rural produce store, which was even then a non-conforming use in the relevant zone, was relocated to the south-west corner of the lot. The permit nevertheless allowed a larger building than had earlier existed on the land. That rural produce store is still in use and a mezzanine floor has lately been added. There is an informal crushed rock car park providing 12 car parking spaces to the north of the shed and the balance of the land is disused.

5. Since the redevelopment of the produce store, the Responsible Authority has approved a small retail plant nursery attached to the end of the building (under Permit 98046 issued on the 11th of May 1998), but has refused a permit for the sale of fresh and frozen fish on the premises. Further, in 1995 the current landowner proposed Amendment L46 to the then Planning Scheme to allow the development of the site for a truck stop (or a highway service centre). That application included a two storey 50 room motel. The Responsible Authority, following exhibition of the amendment, resolved to abandon it on three grounds which included that the approval of the proposal would create an undesirable precedent for commercial development along the Princes Highway outside the designated urban areas and would adversely impact on integrated commercial highway service facilities in the nearby towns of Trafalgar and Yarragon.

6. Rankins Road itself is a short gravel rural road providing access to five properties which are generally in rural residential use. The Princes Highway in this location is a duplicated highway with a central median strip passing through a rural locality. There is a median break at the Rankins Road intersection. The maximum speed limit on the road is 110km/h.

7. The application for permit was lodged with the Responsible Authority on the 9th of July 1999. The application at that time proposed the retention of the agricultural produce store known as the "Spud Shed" and the small associated plant nursery, but sought to expand the commercial development on the site to provide 24 hour facilities for trucks and other customers, including fuel sales, two fast food restaurants, parking for cars, trucks and other large vehicles, truck and car wash facilities, shower and toilet facilities, and a tourist information service.

8. During the course of the Tribunal hearing, however, the application for permit was twice amended. The final application before the Tribunal includes only one restaurant and has significantly modified the car and truck parking areas and accessways. The application also proposes a bikeway along the southern side of the Princes Highway from Trafalgar to the subject land. The bikeway is proposed to be surfaced with gravel. A landscaping plan for the site is also proposed as part of Mr Wyatt's evidence to the Tribunal.

9. The subject site and surrounds are zoned Rural under the new format Baw Baw Planning Scheme which came into operation in December 1998. All of the uses proposed for the land are discretionary in the Rural Zone, except for the existing shop facility which is prohibited. The existing use provisions of Clause 63 therefore apply, together with the zone controls.

10. Clause 52.30 of the Planning Scheme which deals with "freeway service centres" also has some relevance to the application. The proposal cannot be classified as such a centre, as the highway in this location is not classed as a freeway. Nevertheless the provisions of that clause and the associated Freeway Service Centres Design Guidelines of May 1997 recommend the appropriate type of facilities to be provided at a service centre on a high speed rural roadway and incorporate recommendations for the safe and efficient layout of such centres. They were addressed by the applicant and objectors at the hearing.

11. The subject land is also affected by an Environmental Significance Overlay - High Quality Agricultural Land. While the purpose of that overlay encourages the retention of the productive potential of the high quality agricultural land, this was not really at issue in this proceeding: the subject land has not been in agricultural use for some time and the proposed development is not expected to have a significant impact on the use of surrounding land for agricultural purposes.

12. Clause 65 of the Planning Scheme generally guides the exercise of the discretion in relation to this application and directs attention inter alia to the purposes of the zone, the orderly planning of the area, relevant State and local planning policies and the effect of the proposal on the amenity of the area.

13. Particular matters for consideration are also listed in the Rural Zone provisions. They are not especially relevant here, however, other than those relating to design and siting of developments. Those provisions generally require consideration of the impact of the use or development on surrounding rural uses, and any effects on views from major roads and other vistas.

14. The parties to the proceeding referred to various State and local planning policies in the Scheme. They included the following:

* Clause 18.01-2 of the State Planning Policy Framework which states:

"New uses and development of land near an existing or proposed transport route should be planned or regulated to avoid detriment to, and where possible enhance, the service, safety and amenity desirable for that transport route in the short and long terms.

The design of transport routes and nearby areas should be planned and regulated to achieve visual standards appropriate to the importance of the route with particular reference to landscaping, the control of outdoor advertising and, where appropriate, the provision of buffer and resting places."

* Clause 21.08-3 of the Local Planning Policy Framework relates to urban development. One strategy included is:

"The urban settlement pattern is to be developed based on towns clustered along the transport corridor and separated by rural land. Future urban development should be principally directed to existing urban areas or on the periphery of existing urban areas where land can be serviced."

* Clause 22.01-1 includes a strategy plan specifically for the Princes Highway corridor. It includes:

"Plan and develop Baw Baw's Princes Highway corridor as an integrated series of urban settlements and facilities.

Transport corridor to be planned and developed as the gateway to Gippsland and eastern Victoria."

* Clause 22.05-2 in relation to tourist development states:

"Consideration should be given to the location of development adjacent to towns in order to benefit the local economy by improving linkages between development, commercial operators and service providers within these centres.

Strip development along major highways and roads should not be supported. The appearance of the environment is important to the tourism industry."

15. Upon receipt of the application, the Responsible Authority required it to be advertised and in response 33 objections were received. In addition, 81 standardised forms indicating that the signatory believed that the proposed development would benefit the area were also submitted.

16. The application was also referred to VicRoads under Section 55 of the Act and to the Environment Protection Authority. Neither Authority objected to the application but offered comments on the design.

17. The Responsible Authority considered the application at its meeting of the 24th of November 1999 and resolved to refuse the application on the following grounds:

"1. The location of the proposed development site has not been adequately justified in terms of the need for such a facility and with regard to the Strategic Planning requirements of Clauses 21.08-3 & 22.05-2 of the Baw Baw Planning Scheme.

2. The proposed development and use would have a detrimental impact on the open visual character of the rural landscape.

3. The design layout and location of the development and use raises safety concerns in relation to potential conflicts between pedestrians and vehicular traffic."

18. The applicant for permit subsequently sought a review of that decision by the Tribunal. The grounds for the review are as follows:

"1. The proposed development will not have a detrimental impact on the visual character of the rural landscape in which the land is located.

2. The proposed development will not cause vehicle and pedestrian conflicts.

3. The proposal will not prejudice or be in conflict with Council's strategies for the area in which the land is located or the municipality.

4. The establishment of the proposed use and development on land containing an existing highway related commercial facility is an appropriate use and development of the land.

5. The proposal can be developed so that it will not cause any loss of amenity to any nearby property."

19. At the hearing of the application for review which proceeded over five days, we were presented with extensive oral and written submissions and evidence on a range of matters which included the strategic planning issue of whether this facility is appropriate in an inter-town location on the highway; the need for facilities for the trucking industry; road safety matters; visual and other impacts for the local area; and the relationship of the proposal to the policies of the Planning Scheme and the Freeway Service Centre Guidelines.

20. The first three days of hearing were conducted at Warragul. During this period, some hours were spent inspecting the subject land and nearby townships in company with the parties, and in particular examining the availability of commercial services for the trucking industry and other highway users. The Tribunal also conducted its own more extensive highway survey when travelling between Melbourne and Warragul, and made an independent inspection of the highway as far east as Rosedale.

21. On Monday the 11th of December 2000, we gave an oral statement of reasons for our decision in relation to this matter. Our decision is to refuse the application for permit. The following is a written record of the oral reasons given.

"We have considered the submissions and evidence presented at the hearing, as supplemented and affirmed by the extensive inspection of the site and of other facilities for truck drivers and ordinary motorists on the Princes Highway east. We have formed the view that the Responsible Authority's decision to refuse this application should be upheld, and no permit will be granted.

1. We were not persuaded that a need for a 24 hour truck stop facility, that is a facility catering to the particular needs of truck drivers, exists on this section of the Princes Highway East.

Much of the case presented to us in favour of the proposal was that it is in the interests of the trucking industry and road safety generally to provide facilities along major long haul transport routes which encourage drivers to stop and rest, and such a facility is appropriate here.

While in planning proceedings, it is not generally necessary to present an argument concerning the need for a facility in order to justify an application, we assume that it has been presented here as a counter to the policies of the Planning Scheme which would generally recommend against the provision of an inter-town facility of this kind.

The desirable components of such a facility for truck drivers were described to us as including dedicated truck parking bays (where drivers can leave trucks or sleep), fast flow petrol bowsers, a "truckies'" restaurant or lounge and other food facilities, public telephones and showers and toilets.

The evidence presented to us has indicated that there is indeed an absence of showering facilities and any restaurant or lounge dedicated to truck drivers in this section of the highway (that is broadly from Nar Nar Goon to Rosedale). However, in our view those are the only facilities for truck drivers not available at various points along this section of the highway. There are fast flow bowsers already in existence at Yarragon, Nar Nar Goon, to Rosedale, and West Trafalgar. There are dedicated truck parking bays at Robin Hood, Nar Nar Goon and Trafalgar. There are food outlets and phones available at Yarragon and a number of other towns along the highway. There are also public toilets in various locations including Yarragon and Trafalgar.

Importantly, while there may be an absence of showers and truckies restaurants, we find that a need for such facilities on this route was not substantiated. While we accept Mr Sanders' evidence concerning the desirability of the provision of such facilities on long haul transport routes, it is our view that the Princes Highway East is not such a long haul interstate route, as indicated by the freight maps from the recent Metropolitan Strategy Report produced by Mr McWhinney. We note the absence of night truck traffic as reported by Mr Rourke, the operator of a service station at Yarragon, and Mr Fozard's evidence concerning the routes taken by trucks entering the Princes Highway - some travelling east from the Latrobe Valley and others entering from Thorpdale and travelling west. This is not a situation where truck drivers might be expected to be away from home-base overnight or for a number of nights, or even away from home for more than 12 hours. We do not think that the truck usage of this highway gives rise to a need for showers and special lounges or truckies restaurants as might exist on other routes.

Mr Jones submitted that the need for such a facility was identified by his client, Mr Abrecht, in discussions with truck drivers. We give those reports of conversations no weight as evidence of a need for a truck stop - for the obvious reason that they represent a biased sample and really nothing more than self-interested discussions on the part of the permit applicant.

Also, Mr Henshall sought to justify the need for the truck stop on the basis that some drivers might travel up and down the highway between Gippsland and Melbourne twice a day, rather than merely once a day. There was simply no evidence presented which indicated to us that this occurs.

We are of the view that even if there were a need for a truck stop on the Princes Highway East, incorporating showers, lounges and other special trucking facilities (perhaps to cater for a limited number of long haul drivers on this road), that this 7km section of the highway between the two towns of Trafalgar and Yarragon, (which are not bypassed by the highway), is not an appropriate location. It seems to us that if there is a desire to improve road safety generally by the provision of truck stop facilities, any such facilities should be situated in a more remote location (for want of a better term), where a break in the monotony of the trip along the roadway needs to be provided.

2. The proposal is much more than a facility for truck drivers - it is in our view a facility designed to principally cater to the ordinary highway motorist. It incorporates a large number of regular petrol bowsers, a car wash, a convenience restaurant for the public, convenience shop facilities (albeit these also service the trucking industry), a plant nursery and the Spud Shed retail facility itself.

When questioned, Mr Henshall volunteered that he believed that perhaps only 35 percent of the business at the site would be truck related.

The overall facility, in our view, is more like a small commercial centre than a truck stop as described in the Freeway Service Centres Guidelines.

Just as much as there is no need for a truck stop facility, we are of the view that there is no need for an inter-town highway facility catering to the ordinary motorist.

Mr Henshall sought to argue that there is a need or demand arising from highway users who are simply wishing to get from A to B as quickly as possible, and those travellers would be disinclined to use food/toilet/fuelling facilities in towns, but rather would seek a highway service centre where all of those amenities and services were conveniently sited together. He contrasted those A to B drivers, with other drivers making stopping or tourist trips, who might want to explore or browse through facilities offered in small towns enroute.

Mr Coomes gave evidence of his own family's behaviour in this respect.

We were not persuaded to Mr Henshall's viewpoint, however, that A to B highway travellers will not use facilities other than those offered at a highway service centre. While it may be the case that someone with limited time to make a long highway journey, when they are seeking a food/toilet stop, would be disinclined to drive off the highway to towns which have been bypassed, the towns of Yarragon and Trafalgar have not been bypassed (and deliberately so): and their facilities are available within approximately 5 and 2km from the site respectively. Furthermore, the facilities offered to the motorist in those towns are clearly visible from the main road itself, given that the towns' commercial areas are basically distributed along the highway itself. Moreover, in Yarragon in particular, we believe that the facilities offered are recognisably of quite acceptable quality, and a variety of types of facilities are available. We believe, therefore, that the towns do cater to the highway user going from A to B as much as the "stopping driver", and adequately so.

We would further observe that we were not persuaded in any case that there is a dichotomy between A to B drivers or trips and stopping drivers or trips, in the manner which Mr Henshall argued existed. It is our view that a single trip will likely have both drive through and stopping characteristics in part, which will be determined amongst other things by the level of interest in the environment through which the trip is made.

Nor do we accept Mr Coomes reports of his own personal desire to drive through to Lakes Entrance as quickly as possible when going on family holidays, and his account of his family's preferences for chain restaurant food and toilet facilities, as reliable evidence of widespread community practices.

In summary, we simply do not accept that highway trips for the ordinary motorist can really only be serviced by a highway service centre.

Again, even if highway service centres were to play this role, it would be appropriate that any such facility, like that for truck drivers, be located in a "more remote" location, where there is an absence of any "fall back" facility which the towns on the highway might offer.

3. In so far as we are of the view that there is no absolute dichotomy between A to B travellers and stopping drivers, and we believe the town facilities can and do cater to all drivers, we do not accept that the further evidence presented on behalf of the applicant that there will be no significant impact on the economic base of the nearby towns, and Yarragon in particular.

Mr Henshall effectively sought to argue that the A to B traveller does not use Trafalgar and Yarragon facilities, and that those towns instead derive their economic base from town residents, surrounding rural households and the stopping tourist. Thus he argued that the new facility would not divert trade from those towns, as it is not now directed to them.

We disagree with this. Yarragon now has a relatively busy commercial centre for a town of its size which has "bustle and activity", and a high proportion of shops selling crafts and other items attracting discretionary spending. In former years, when Yarragon performed its traditional service centre role, reportedly it was a "declining dairy town". The town has clearly renewed itself commercially and is apparently enjoying trade from beyond its conventional town and rural hinterland catchment. The new trade has, we believe, been generated by attracting persons using the highway - which runs along the main street of the town - to stop.

Certainly some of those people will be making a West Gippsland "stopping trip" - a day trip along the Gourmet Trail etc. However we have no reason, other than assertions about driver behaviour on the part of the witnesses for the permit applicant, to think that some of those stopping will not be A to B travellers. Mr Henshall's opinion about the non-use of town facilities by A to B travellers , to our mind, would likely be relevant in the case of a town bypassed by a highway, but not one where the highway runs through the town and the facilities are clearly visible from the driver's seat of the car.

In response to any argument that the extent of commercial trade diverted by the proposed facility would not be substantial, we indicate that we were persuaded by Mr Zahra's submission that the significance of any trade diverted has to be assessed in terms of both the size of the proposed centre and the centre affected. We think that a new commercial facility as proposed here can be seen as being a major competitor to the nearby small towns.

Our concerns about economic impacts become especially relevant if it is the case that the economic revitalisation of Yarragon is somewhat "fragile", and might easily be undermined. It is also our view that the lessons offered at Yarragon in terms of small town revitalisation are important to the State as a whole (as recognised by the Streetscapes Award given to the township), and those lessons should be protected.

The views about the need to protect the economic base of the small towns in this area are not founded merely on notions of orderly planning on our part, but are supported by the policies of the Planning Scheme. Those policies also recommend against "commercial creep" into the green breaks between the existing townships for reasons of amenity of the highway and the protection of rural landscapes. See Clauses 21.08-3, 22.02-1 and 22.05-2.

4. Before departing from these issues of the need for and economic effects of the types of facilities proposed, we would add that there was no argument presented to us that there is a necessary economic link between the facilities to be provided to the trucking industry and the ordinary motorist. It was simply not argued that one could not exist without the other. Thus, for example, to the extent that some need for a genuine "truck stop" might exist, it does not seem that such a facility could not be developed without the economic support of other facilities for the ordinary motorist.

5. We believe that valid concerns have been raised about the road safety effects of the proposed facility.

Our major concern arises from the proposed provision of a convenience restaurant in this location. We agree with the objectors' submissions that such a restaurant, especially if it were part of a national or international chain, would be likely to encourage youth from Trafalgar to travel out the 2km from the township to the site. The highway in this section has a 110km/h speed limit. Clearly pedestrians, or more particularly cyclists, sharing the roadway with high speed traffic of this kind would be at risk.

We also believe that even if a bicycle path were provided, this would not adequately overcome these concerns. To begin, if the path were constructed of gravel as proposed, and especially if it was inadequately maintained (and VicRoads would expect the operator to maintain the roadway), then cyclists may well prefer to use the maintained sealed roadway itself. This may happen even if the bike path were sealed. Also fencing or railing off of the bikeway from the vehicle lanes of the highway cannot be effectively achieved, as at least one crossroad intervenes between Trafalgar and the site.

VicRoads' comments that cyclists can use the roadway now, are not to the point: there is no "magnet" in the form of a convenience store to attract high levels of movement out from the town of Trafalgar at present.

We further find that the movement of trucks off the site at Rankins Road intersection would offer additional hazards. VicRoads acknowledged that as waiting time to join a traffic stream lengthens, a driver will take an increasingly shorter gap in the traffic stream to enter the flow of traffic. An average wait of five minutes at peak times for trucks leaving the site to access the eastbound flow on the highway, was calculated by Mr Turnbull. We believe that a wait of this length may encourage unacceptable risk taking by drivers. As Mr Gellion from VicRoads conceded, this aspect of the traffic movements arising at the site is "not ideal".

Again, it is acknowledged that this movement can at present be made by trucks leaving Rankins Road, but the level of occurrence would not be high at the present time. This is simply not the location to establish a land use that encourages high levels of movement to and from the highway in both directions by trucks.

This problem is principally brought about by the subject land having sideage to Rankins Road, which allows vehicles to cross the highway, and by the proposed use seeking to capture a share of both east and westbound traffic. If the access to the site was for westbound vehicles only, and the site were not adjacent to a side road, this problem would not exist. Hence the Freeway Service Centre Guidelines cater to one directional traffic flow, and the centres are paired to discourage any tendency to cross the freeway.

Another concern is that eastbound vehicles have the opportunity to park at the side of the eastbound through lanes, and their passengers might cross the highway to the site. This is inappropriate, we believe, having regard to the high speed of traffic on this roadway. The speed in fact equates to that permitted on rural freeways, but on those types of roads, stopping by motorists would be prohibited.

6. We are also of the view that the internal layout of the site is somewhat congested, and the two-way traffic movement through the site - which is enabled by the side road access - leads to inconvenient patterns of movement, and in turn to on-site traffic conflicts and dangers. The complex movement paths through the site, and the inability to provide the separation between trucks and car accessways as recommended by the Freeway Service Centre Guidelines, are also constrained by the extent of facilities proposed on the land. The proposal in these terms is an overdevelopment of the site.

We would observe in relation to the matter of the site layout and the extent of facilities offered, that the applicant has taken a rather dualistic approach to the Freeway Service Centre Guidelines and Policies: he has sought to justify the need for the facility based on the Guidelines, but has stepped away from them, when criticisms have been made about the internal layout of the site and the inclusion of facilities which the Guidelines recommend not be provided, such as car and truck washes.

7. Lastly, it is our view that the proposal would undesirably entrench and expand a non-conforming use.

The new facilities on this site seek to "piggy back" on the Spud Shed retail facility, which may have non-conforming use rights (if those rights have not already been lost by the introduction of the additional floor space at mezzanine level since the last permit was granted).

We do not purport to determine the legal issue of whether the existing use rights are available, given the absence of consent by the applicants to the determination of any legal issue by the Presiding Member. Nor do we determine the matter of how the proposal might affect those rights by causing a non-compliance with the conditions and restrictions on the non-conforming use as referred to in Clause 63 of the Planning Scheme. Further, we make no finding in this proceeding on the matter of whether or not the existing permit for the non-conforming use might be amended under Section 87 of the Planning and Environment Act 1987 to overcome this problem.

We do find, however, that a now non-conforming retail facility - one that was first established as a rural produce outlet and which was later benefited (in 1994) by highway duplication allowing the building to be renewed and expanded - is now proposed to be further expanded into what can best be described as a small commercial centre with a wide variety of land uses. The non-conforming use which in terms of the present Scheme is located in an inappropriate location, is effectively proposed to be entrenched and expanded. This is not appropriate in terms of orderly planning.

Finally, we would say that we agree with the applicant's submissions about the difficulties of establishing a genuine 24 hour truck stop in the towns of Yarragon and Trafalgar, and especially in terms of providing truck parking. If any new 24 hour truck stop facility is to be provided on the Princes Highway East, however, it is appropriately provided, in our view, in a more remote location, and should offer only the limited facilities recommended by the Freeway Service Centre Guidelines."