1. Before the 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 with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application modified to show:

(a) Details of the external colours and finishes of the buildings and all signs,

(b) Detailed dimensioned elevations of the buildings and canopy,

(c) All trees to be removed clearly indicated and species nominated,

(d) Location and details of service facilities such as sewerage treatment plant, water tanks, etc. that will be required to provide for the operational needs of the site.

(f) Concrete kerbs, or such other form of barrier as the Responsible Authority may approve, of sufficient height to prevent the passage of vehicles between landscape areas and areas provided for the parking or passage of vehicles.

2. Before the development starts a landscape plan, prepared by a suitably qualified and experienced person or firm and 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 with dimensions and three copies must be provided. The plan must show:

(b) A schedule of all proposed trees, shrubs and ground cover, including the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn, paving or other surface material as specified,

(c) Use of native indigenous plants of local provenance that will supplement existing landscaping in the locality and contribute to the precinct character,

(d) Vegetation to be removed and existing vegetation to be retained.

(e) Hose connection points and an irrigation system to enable convenient and satisfactory maintenance of all planted areas.

(f) Grassing of nature strips adjoining the subject land.

3. Before the development starts, a site management 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 with dimensions and three copies must be provided. The plan must include:

(a) A proposed timeline and sequence of construction,

(b) Location of worker site accommodation and facilities,

(c) Location of materials to be stored on site during construction and delivery.

4. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

5. Prior to the commencement of the use hereby permitted, the landscaping works as described on the endorsed plans must be provided and completed to the satisfaction of the Responsible Authority, and must thereafter be maintained in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

6. Access to the subject land and construction of the approved development must at all times be managed to the satisfaction of the Responsible Authority to ensure that minimal interruption is caused to efficient operation of the Moorooduc Highway.

7. Native vegetation other than on the land shown for the construction of the development as shown on the endorsed plans must not be felled, lopped, topped, ringbarked or otherwise destroyed or removed except with the consent of the Responsible Authority, except that consent is not required for the removal of:

(b) Any tree required by the Country Fire Authority in conditions of emergency to prevent the spread of bushfires, or

(c) Any tree, shrub or other vegetation considered by a public authority acting under any Act to be a fire hazard or in compliance with its requirements in writing.

8. All existing vegetation shown on the endorsed plans must be protected, to the satisfaction of the Responsible Authority as follows:

(a) By being suitably marked before any development starts, and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority,

(b) Temporary barricades to protect trees to be retained must be erected prior to the commencement of any works, and

(c) Excavation, trenching or soil removal must not be carried out within one metre of any tree to be retained without the prior written approval of the Responsible Authority.

9. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

10. All road works and/or internal traffic measures for the internal accessways and the permitted points of ingress and egress, are to be designed and constructed to the satisfaction of the Responsible Authority, at the cost of the Permit holder.

11. All accessways and traffic control measures must be maintained to the satisfaction of the Responsible Authority, at the reasonable cost of the Permit holder.

12. The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be to the satisfaction of the Responsible Authority, must be carried out entirely within the site, and must be so conducted as to cause minimum interference with other vehicular traffic.

13. The use hereby permitted must be to the satisfaction of the Responsible Authority, so as not to cause any nuisance or annoyance which would prejudicially affect the amenity of the locality by reason of the processes carried on, the transportation of materials, goods and commodities to and from the premises or by reason of the appearance of any building, works or materials or by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ask dust, fuel, wastewater, waste products, grit, oil or otherwise.

14. External lighting must be designed, fitted with suitable baffles and located so as to prevent the emission of direct light onto adjoining properties or roadways, all to the satisfaction of the Responsible Authority.

15. A settlement and oil separation system must be installed in order to treat water being drained from the sealed surfaces on the site into the drainage system. The system must comply with the Environment Protection Act 1970 and be to the satisfaction of the Responsible Authority and Environment Protection Authority.

16. Disposal of rubbish and location of rubbish receptacles must be to the satisfaction of the Responsible Authority.

17. The proposed works and any future development must comply with the relevant requirements of the Dangerous Goods Act and its subordinate legislation, particularly the Dangerous Goods (Storage and Handling) Regulations 1989.

18. Prior to commissioning of any liquefied petroleum gas (LP Gas) tank, the permit holder must submit full information detailing compliance with, AS 1596-1989, LP Gas - Storage and Handling, to the Victorian Workcover Authority.

19. Storage of any LP Gas and its associated facilities must be installed, kept and operated in compliance with AS 1596-1989, LP Gas storage and handling and AS 1596 Supplement 1-1994 LP Gas - Storage and Handling Siting of LP Gas Automotive Retail Outlets.

20. Provision must be made for the drainage of the site to the satisfaction of the Responsible Authority.

21. Advertising signs must not be located on any road reserve. This includes any sign attached to a vehicle where it is being used as an advertising sign.

22. Non potable water must not be used for handwashing, except with the written approval of the Environment Protection Authority and/or the Department of Human Services.

23. All signs must be designed, constructed and maintained to the satisfaction of the Responsible Authority.

24. Adequate signs, pavement markings and traffic islands must be provided to direct and control the flow of traffic within the site, including the clear definition of permitted entry and exit crossovers, all to the satisfaction of the Responsible Authority and VicRoads.

25. A deceleration lane 3.5 metres wide and 110 metres long, linemarked with a 50 metre long taper, plus a 1.0 metre wide shoulder, must be constructed to the satisfaction of the Responsible Authority and VicRoads.

26. The depth and composition of new pavement must be to the satisfaction of the Responsible Authority and VicRoads, generally in accordance with VicRoads Drawing No. 139710.

27. The standard of all materials and work must be to the satisfaction of the Responsible Authority and VicRoads.

28. Detailed engineering plans of the roadworks must be submitted for approval to VicRoads. When the plans are approved, an additional copy must be submitted to VicRoads for supervision purposes.

29. The permit holder must pay the full costs of all roadworks, service relocations, signage and other costs associated with these works.

30. Prior to gaining approval from VicRoads to undertake works on the highway the developer must:

(a) Provide payment to VicRoads of $400 or 1% of the estimated cost of roadworks, whichever is greater, to cover the cost of surveillance,

(b) Provide a bank guarantee, without a termination date, to VicRoads for the estimated cost of works,

(c) Provide evidence that the Contractor has a public liability insurance policy for at least $10 million that will be effective for the duration of the works;

(d) Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor; and

(e) Arrange for the contractor to contact VicRoads Works Supervisor, Mr Jeff Summerscales (mobile telephone 0411 015 394), or any other person nominated by Vic Roads, to organise a meeting on site to discuss traffic management measures (usually 3 days' notice required).

31. During construction of the vehicle access, worksite signing for traffic management must be provided to the satisfaction of the Responsible Authority and VicRoads to conform with the intent and standards included in VicRoads' publication "Worksite Traffic Management, (Roadworks Signing Code of Practice)", incorporating AS 1742.3-1996.

Conditions Required by the Environment Protection Authority

32. The standard of operation for maintenance (not including noise) must be consistent with EPA Information Bulletin "Waste Control at Motor Vehicle Repair and Service Premises - Best Practice Environmental Management".

33. Noise emitted from the premises must not exceed the requirements set out in the State Environment Protection Policy (Control of Noise from Commerce Industry and Trade) No. N-1.

34. Truck deliveries must only be between 7:00a.m. and 10:00p.m., unless with the further written consent of the Responsible Authority and the Environment Protection Authority.

35. Petroleum storage tanks must be designed, installed and operated in accordance with the "Code of Practice for the Design, Installation and Operation of Underground Petroleum Storage Systems (UPSS)" published by the Australian Institute of Petroleum Ltd.

36. This permit will expire if one of the following applies:

(a) Development is not started within two years of the date of this permit.

(b) Development is not completed within four years of the date of this permit.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For the Responsible Authority: Mr N. Tweedie, of Counsel, instructed by Deacons Graham and James, Lawyers.

Respondents/Objectors: Mr B. Davis, Mr K. Davis (Day 1 only),

Mrs H. Davis, Mrs V. Monotti (Day 1 only), and Mr S. Moignard

For the Applicant for Review/ Mr G. Garde, QC, instructed by

Permit Applicant: Feingold Partners Pty Ltd., Lawyers.

Mr R. Moore, a Real Estate Agent operating in the area,

Mr R. Harris, a Civil Engineer operating in the area,

Dr C. Meredith, a Consultant Botanist of Biosis Research Pty Ltd,

Mr R. Symons, a Consultant Traffic Engineer of Ratio Consultants Pty Ltd, and Mr S. Custance, a Consultant Planner.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Mornington Peninsula Shire Council ("the Responsible Authority") to refuse to grant a permit.

2. At the commencement of Day 1 Mr Tweedie, for the Responsible Authority, said that expert witness reports had been received less than 10 business days prior to the hearing as required by Practice Note Planning List 1 - General Procedures, and the hearing should therefore be adjourned. Mr Tweedie made an oral submission on the matter, as did the Respondents/Objectors and Mr Garde for the Applicant for Review/Permit Applicant, and I heard from Mr Tweedie in response. I ruled that the hearing should proceed, but I said that Mr Tweedie should raise the matter again if he found any consequent difficulty in responding to the evidence of expert witnesses or cross examining those expert witnesses. The matter was not further raised.

3. Mr Tweedie, in his written submission for the Responsible Authority, described the proposal as follows:

* A service station with 8 bowsers, 4 underground tanks, a 16KL above-ground LPG tank and a 500 m2 pump canopy (7.5 metres in height).

* A 365 m2 service building (plus 5m2 of office) of 6.2 metres height, incorporating both a convenience shop and a take away food premises.

* A 7 metre high pole sign displaying 10 m2 of signage on the frontage of the property.

* 11 m2 of wall signs on the service station building.

It is proposed to operate this facility 24 hours a day, 7 days a week.

4. The subject land is known as "Morningside", and is on the west side of the Moorooduc Highway approximately 190 metres north of the Mornington-Tyabb Road. There are small hobby farms/rural residential properties with single dwellings owned by Objectors to the north and south of the subject land. There is an electricity sub-station on the north west corner of the intersection of Moorooduc Highway and the Mornington-Tyabb Road south of the rural residential property which is to the south of the subject land, and an MMBW drainage reserve to the rear of the subject land. North of the rural property on the north boundary of the subject land is a poultry farm.

6. The proposed facility would abut the northern and eastern boundaries of the subject land.

7. The subject land is covered by the Mornington Peninsula Planning Scheme and is in a Rural (Schedule 3) Zone (Clause 35.01). The proposed uses are Section 2-Permit required. Clause 35.01-6 sets out matters that must be considered before deciding on an Application.

8. The subject land is covered by an Environmental Significance Overlay (Schedule 1) (Clause 42.01), Schedule 1 of which applies to the Moorooduc Plain and Balcombe Valley. Clause 42.01-3 sets out matters that must be considered before deciding on an Application as the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policy, and the matters contained in Schedule 1. The Environmental objective to be achieved for the Moorooduc Plain and Balcombe Valley is set out at Clause 2 of Schedule 1.

* Clause 22.06 - Development on highways, main roads and tourist routes.

* Clause 22.07 - Commercial and industrial uses in rural areas.

* Clause 52.20 - Convenience restaurant and take-away food premises.

* Clause 52.29 - Land adjacent to a Road Zone, Category 1, and

1. The proposed development and use is out of character with and would detrimentally impact upon the highly valued rural character of the area.

2. The proposal is an unwarranted commercial intrusion into the rural landscape.

3. The proposal is contrary to the reasonable expectations of neighbours in the immediate vicinity.

4. The proposal would adversely affect the amenity of abutting and nearby neighbours.

5. The proposal would have an increased adverse affect on traffic movements and safety in the vicinity of the Moorooduc Highway intersection with Mornington-Tyabb Road, particularly in the summer period and on weekends.

6. The proposal is inconsistent with key objectives in Council's Municipal Strategic Statement.

7. This section of Moorooduc Highway is adequately serviced and the proposal would generate an undesirable precedent for further commercial applications on the site and locality.

8. The proposal will prejudice the proper and orderly planning of the area.

1. The site is in a convenient and strategic location for the development of a service station complex to serve the needs of local and passing traffic.

2. The proposed development, together with the landscaping proposals and retention of rural outbuildings would ensure that the proposal would be compatible with the rural environment.

3. The proposal meets the substantial requirements of Council's M.S.S.

4. There are no objections from referral authorities, including VicRoads which has no objection to the ingress and egress from the site in accordance with an approved design for traffic movement.

5. The site is the most appropriate location for a service station between Dromana and Frankston and provides a facility which may be approved in the Rural Zone.

6. The proposal will have no effect on the proper and orderly planning of the area in relation to existing development in the area.

7. The reasons given for the Refusal to Grant a Planning Permit dated 23 November, 1999 cannot be substantiated.

12. Mr Tweedie said that the Permit Application was advertised by a public notice and letter to local residents, and thirty one objections were received. He summarised the main grounds of objection.

13. Mr Tweedie submitted that the proposal failed to demonstrate compliance with several key planning policies, particularly those that seek to preserve the rural landscape character of the main roads and tourist routes of the Mornington Peninsula. Mr Tweedie further submitted that the proposal sought to establish a petrol station and other uses on land where such a use had been prohibited in the past, and he submitted that this was significant.

14. Mr Tweedie submitted that the new format planning schemes are designed to achieve simplicity and conformity in planning controls, and this has increased the number of discretionary uses, but he further submitted that it does not follow that there should be a significant change to the types of uses appropriate for any piece of land within these new uniform zones. He submitted that it was essential the Tribunal have regard to the type of uses that were prohibited under the former planning scheme, to determine whether such a use should be permitted under the new format planning scheme.

15. Mr Tweedie discussed the proposal in the context of Clause 22.06, Development on Highways, Main Roads and Tourist Routes, and Clause 22.07, Commercial and Industrial Uses in Rural Areas.

16. Mr Tweedie criticised the proposal on amenity grounds, and said:

"The facility will operate 24 hours a day, seven days a week. The applicant suggests that up to 800 vehicles a day will access the site. It would be inevitable, in such conditions, that adjoining rural properties would be detrimentally affected by vehicle and customer noise, lights and exhaust fumes. Such uses should not be permitted in rural zones unless they are an absolute necessity."

17. Mr Tweedie said that modern service stations are visually prominent, and have a well lit forecourt and large illuminated signs, and went on to say:

"The present application incorporates these design features. It is precisely these features which detract from the rural character of the landscape and which local planning policies are designed to avoid except where such facilities are absolutely essential."

18. Mr B. Davis, a Respondent/Objector spoke to a written submission. Mr Davis said that the proposal was an unnecessary and inappropriate intrusion into a predominantly rural area with a unique environment, which provides people visiting the Peninsula with an opportunity to appreciate the rural ambience without inappropriate commercial type uses. Mr Davis said that such uses should be located within an existing urban area or identified in zones for such use. He said that the property of himself and his wife, Mrs H. Davis, had been well developed for wild life and was registered as a conservation area with the Department of Natural Resources and Environment. He said that they were concerned about impact of noise and smell, fire, noise, visual impact and light intrusion.

19. Mr K. Davis, a Respondent/Objector, made an oral submission. Mr Davis said that he had lived next door to the subject land, but now lived at Mt Martha. He supported the submissions of the Responsible Authority and Mr B. Davis.

20. Mrs H. Davis made an oral submission which criticised the location of the proposal and its possible impact on the property of herself and her husband.

21. Mrs Minnotti made an oral submission. She said that she had been a resident of the Peninsula for fifteen years and loved the area, and felt that this was an intrusion of another commercial business at the gateway to the peninsula.

22. Mr Moignard, a Respondent/Objector, made an oral submission. He said that he and his family had lived on the Peninsula for thirty years, and he was concerned about the impact of the proposal.

23. Mr Garde, for the Applicant for Review/Permit Applicant, called Mr R. Moore, a resident of Range Road, Mt Martha and a Real Estate Agent in the area, as a witness. Mr Moore said that he travels around the Mornington Peninsula, and to Melbourne two to three times a week. He said that there was a need for petrol facilities in the area after hours, and there is a particular need for such a facility for north bound traffic on the Moorooduc Highway. Mr Moore was cross examined by Mr Tweedie and the Respondents/Objectors.

24. Mr Garde called Mr R. Harris as a witness. Mr Harris is a Civil Engineer who lives in Caulfield but owns properties on the Mornington Peninsula, and he is involved in civil engineering works on the Peninsula. He said that there are difficulties caused by lack of a service station serving northbound traffic on this section of the Moorooduc Highway. He said that when one passes service stations abutting the south bound carriageway one is not always aware of how much travelling will be done during the day, and that there may be a need for petrol for the return journey. Mr Harris was cross examined by Mr Tweedie and the Respondents/Objectors.

25. Mr Garde called Dr. C. Meredith, a Consultant Botanist, as an expert witness. Dr Meredith said that the natural environment was assessed during a site visit, and he provided details of flora and fauna. He said that all the trees on the subject land are planted, except for one small Cenescent Black Wattle Acacia mearnsii on the northern boundary. He said that the ground layer of vegetation is mainly introduced species, except for Weeping Grass Microlaena stipoides which he said is common in some areas, and a small amount of Austral Rush Juncus australis. Dr Meredith said that trees on the road reserve were all planted, except for one young Black Wattle Acacia mearnsii north of the existing driveway, and the ground layer consists mainly of native grasses, particularly Weeping Grass Microlaena stipoides.

26. Dr Meredith said that no plant species of natural or state conservation significance had been recorded within the study area.

27. Dr Meredith said that the area has low habitat values for native fauna, although the established introduced trees would provide nesting habitat for a range of birds, both native and introduced. He said that the subject land does not form part of any habitat corridor or link. He said that it has minimal value for a nature conservation.

28. With respect to the potential impact of the proposal, Dr Meredith said that such impact would be minimal as the environment is highly altered from its original condition. There would be a minor loss of some native plants on the road reserve due to the construction of the deceleration lane and driveways, but the area affected would be small and the bulk of the remnant native vegetation, which is also highly altered, in the average road reserve would be retained. He said that the landscape plans prepared by Ms Carol Frank-Mas provide extensive plantings of native plants consistent with the original vegetation of the area, and responded to the environmental values of the site. Dr Meredith was cross examined by Mr Tweedie and the Respondents/Objectors.

29. Mr Garde called Ms C. Frank-Mas, a Consultant Landscape Architect, as an expert witness. Ms Frank-Mas spoke to a written report in which she described the area, location and topography, existing trees on the subject land and nearby, proposed tree removal, and the proposed landscape.

30. Ms Frank-Mas said that seven trees would be removed, four within the subject land, a flowering gum for the proposed entry driveway, a poplar for the proposed Morningside entry and a sugar gum for the proposed exit driveway. Ms Frank-Mas said that none of those trees were indigenous to the area, and their removal would be compensated by forty two new trees that were indigenous to the area. Ms Frank-Mas was cross examined by Mr Tweedie and the Respondents/Objectors.

31. Mr Garde called Mr R. Symons, a Consultant Traffic Engineer, as an expert witness. Mr Symons said that the specific request to him was that he assess the suitability of the proposed parking provision, layout and vehicular access. Mr Symons reported on a VicRoads one week traffic survey conducted on the Moorooduc Highway in late January 1998. The survey site was just north of Bungower Road, which is about 2 km north of the subject land. Mr Symons said that the survey showed total two way volumes of about 32,000 vehicles per day, which ranged from a high of 35, 324 vehicles per day on Friday 23 January, to a low of 28,729 vehicles per day on Tuesday 27 January. Morning north bound peaks started at 7.00am on most days, except for Saturday and Sunday when they started at 11.00am. Morning peaks started at 10.00am or 11.00am for south bound traffic. Afternoon peaks started at 5.00pm on most days for both north bound and south bound traffic. On most days trucks comprised 17% to 23% of total traffic.

32. Mr Symons said that Moorooduc Highway is a popular route for holiday travel between Melbourne and the Mornington Peninsular beach areas. He said that for such roads traffic volumes are consistently higher on weekend days than on week days throughout the year, and are higher in summer especially during the school holidays than at other times of the year.

33. Mr Symons further said that surveys by the Mornington Peninsula Shire Council on roads such as Point Nepean Road in Rosebud and Rye showed that January volumes are about 50% higher than July volumes. He said that Moorooduc Highway, which is closer to Melbourne and more influenced by permanent populations in the surrounding area, would probably exhibit lower seasonal fluctuations than roads in Rosebud and Rye. It could be expected, however, that the annual average daily traffic volume on the Moorooduc Highway would probably be in the range of 25,000 to 30,000 vehicles per day, with volumes increasing to 35,000 vehicles per day on weekend days in summer. Mr Symons said that with continued population growth on the Peninsula and intensification of recreation activities, traffic volumes would continue to grow.

34. Mr Symons said that analysis of VicRoads data on reported accidents showed that over the period 1994 to 1998 inclusive there were 7 crashes at the Moorooduc Highway/Mornington-Tyabb Road roundabout, and seven crashes on the Moorooduc Highway between the roundabout and Bungower Road. He said that most of the roundabout crashes involved vehicles travelling in the same direction, whilst those north of the roundabout were mostly single vehicle one off road accidents. He said that the summary of the accident data showed no unusual concentrations of crash characteristics, none of the crashes involved fatalities, and his analysis showed no particular safety problems at the subject site.

35. Mr Symons referred to the number of existing service centres available to south bound traffic on the Moorooduc Highway, but said that for north bound traffic there is no facility at all for the 30 kms of the Mornington Peninsula Freeway/Moorooduc Highway route between Rosebud and Frankston South. He said:

"Accordingly, it is considered that there is strong justification and need for a service centre in the general location of the subject site."

"The proposed service centre will rely wholly on passing traffic travelling towards Melbourne. Section 2.3 showed that there are about 14,000 vehicles per day (one-way) passing the subject site. It is expected that about 5 per cent of passing traffic would access the service centre. This means that the service centre could generate up to 800 vehicles per day. This number of vehicles exiting and entering the highway at the service centre is not likely to create any conflict with passing freeway traffic, as long as the access driveways are designed to VicRoads standards.

In respect of the speed of vehicles accessing the site, it is notable that all traffic entering the site will do so within less than 100 metres of the existing roundabout at Mornington-Tyabb Road. The design of that roundabout restricts vehicle speeds to around 40 km/h. The proposed deceleration lane is capable of accommodating access speeds of at least 80 and probably 100 km/h without excessive risk, so safety will not be an issue. Indeed, the access speeds will be less than those typically occurring at service stations on local roads in suburban areas where speed limits of 60km/h apply."

"The proposed development of a service centre will have safety and convenience benefits for travellers on the Moorooduc Highway. The subject site is well located to facilitate safe and convenient ingress and egress, in accordance with VicRoads requirements. On this basis, the proposal should be allowed to proceed as planned."

38. Mr Symons was cross examined by Mr Tweedie and the Respondents/ Objectors who were present on Day 2.

39. Mr Garde called Mr S. Custance, a Consultant Planner, as an expert witness. Mr Custance discussed the locational aspects of the proposal, the suggested need for such a facility, the planning provisions, and the attitude of VicRoads. Mr Custance was cross examined by Mr Tweedie and the Respondents/Objectors who were present on Day 2.

40. Mr Garde spoke to a written submission for the Application for Review/Permit Applicant. Mr Garde said with respect to a previous proposal:

"The application for rezoning made by the previous owners (Mr and Mrs Wooster) for rezoning was not an application directed at the same development site on the land. It related to the field within the 'Morningside' property which now serves as a buffer for the Moignard property. At the time, the proposed use required a rezoning. Under the new format scheme, a permit can be granted. The application stands to be considered on its merits not with any predisposition based on the former zoning."

41. Mr Garde discussed the proposal in the context of the planning provisions, responded to the submissions of the Responsible Authority, and made reference to the expert evidence that had been called. He said:

"There is no evidence to support the suggested detrimental effect through vehicle or customer noise. The dominant noise influence is undoubtedly the highway itself. There is no evidence to suggest that the service station will have any significant effect even assuming the maximum usage of 800 vehicles a day against the existing two-way volumes of 25,000 to 30,000 vehicles per day up to 35,000 vehicles per day (Symons para 2.3) between 17% and 23% of which are trucks. No more than about 2.5% of vehicles would use the service station."

42. During the hearing a number of references were made to the attitude of VicRoads. Mr Tweedie tendered a copy of a letter dated 27 April 1993 from VicRoads to Ian K. Prudden Pty Ltd. The letter, which concerned the earlier rezoning proposal referred to by Mr Garde, commenced:

"Thank you for your letter dated 20 April 1993, advising that you are now acting for the Woosters in regard to this request.

VicRoads does not support the amendment of the Mornington Planning Scheme in order to facilitate a development application for a traffic-intensive development of any kind. It is considered that the Draft Mornington Peninsula Policy described in Amendment RL2 is very much in line with the view of VicRoads, that no further commercial development should be permitted along strategic arterial roads. Moorooduc Highway is not only one of these strategic roads, it is the single most important road on the Peninsula, as it carries the highest volume of high-speed long-distance traffic.

The policy of opposition to new access points or commercial developments along Moorooduc Highway has been consistently applied over a period of years. Approval of the subject request would be at odds with that policy, and would create a precedent for further commercial development along other sections of Moorooduc Highway, and indeed along other rural highways which carry significant traffic. The subject site is, in most respects, no more worthy or unworthy of a rezoning than any other lot abutting any rural highway. The proposal is simply to capture custom from passing trade, which can be met at other sites in other places."

43. The letter went on to dispute any need "argument", and advised that a grade separation of the Moorooduc Highway/Morning from Tyabb Road intersection was proposed.

44. The Department of Planning and Development, by letter dated 12 July 1993 to the then Shire of Mornington, also opposed the then proposed rezoning.

45. Vicroads, by letter dated 29 June 1999, advised the Responsible Authority:

"VicRoads would have no objection to the granting of a planning permit for the development and use of the subject property, in accordance with the plans attached to the permit application, if the following conditions are included in the permit."

The letter went on to set out Conditions that VicRoads proposed, and Mr Garde said that those conditions were not opposed. VicRoads reiterated the advice contained in its letter dated 29 June 1999 in further letters dated 6 July 1999, 17 January 2000 and 15 February 2000.

"There are, as I understand, no proposals for road widening nor for the reconstruction of Moorooduc Highway where an extensive roundabout has been constructed. The site is a sufficient distance from the roundabout in terms of traffication to allow the movement of vehicles ingress to the site and egress onto Moorooduc Highway.

VicRoads have consistently offered no objection to the devilment of this new facility on the Moorooduc Highway. There are no road redevelopment plans to be considered. This is most important as the previous application was related to a suggested redevelopment scheme at the roundabout. Present day inquiries reveal that there is no suggestion of a flyover above the Mornington-Tyabb Road roundabout - a mooted proposal considered relevant in the previous application to Council in 1995."

47. Mr Custance may not be correct in saying that VicRoads has consistently offered no objection, but his evidence about a possible "flyover" would seem to put the objection of VicRoads in 1993 into perspective. In any event it is clear from the correspondence made available that VicRoads now has no objection, subject of course to Conditions.

48. There was no evidence or submission as to what the current attitude of the Department of Infrastructure, the successor of the Department of Planning and Development, might be. I note, however, that VicRoads is the State Road Authority, and comes under the umbrella of the Department of Infrastructure.

49. As already mentioned the subject land is in a Rural Zone and the proposed uses are Section 2 - Permit Required. Mr Tweedie argued that I should have regard to the type of uses that were prohibited under the former Planning Scheme. Mr Garde however, submitted that under the new format planning scheme a permit can be granted, and the Application stands to be considered on its merits, not with any previous position based on the former zoning. I accept the submission of Mr Garde in this respect.

50. The preamble to Clause 65, Decision Guidelines, reads:

"Because a permit can be granted does not imply that a permit should or will be granted. The Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this cause."

51. I believe that the preamble to Clause 65 as quoted above sets the matter in its proper context.

52. Mr Tweedie argued in the context of Clause 22.06, Development on Highways, Main Roads and Tourist Routes, that the applicant had failed to demonstrate "a significant limitation in the current level of service" of petrol station or convenient store/take away food facilities. I agree that there is a significant level of such service available for south bound traffic on the Moorooduc Highway. I accept the submissions and evidence that there is a need for such service on the north bound carriageway in this area, and that this need is not adequately met by the facilities that exist on the south bound carriageway. I particularly note the traffic and safety evidence of Mr Symons.

53. Mr Tweedie also said that the proposal was not located in an "existing service node". Clause 22.06-3 provides that such developments should be limited as far as possible to existing service nodes. I am not convinced that there is any such service node relating to the north bound carriageway, and in any event the policy says "as far as possible". I consider that it has been demonstrated, in the words of that same paragraph, that there is "a significant limitation in the current level of service", because of the lack of provision for traffic on the north bound carriageway. This limitation is more than simply a limitation in terms of convenience.

54. Mr Tweedie criticised the proposal having regard to Clause 22.07, Commercial and Industrial Uses in Rural Areas. Mr Tweedie quoted from the policy basis set out at Clause 22.07-1, wherein it is stated that the state wide Road Zone provides discretion to consider both industrial and restricted commercial uses, but it goes on to say that it is critical to the strategic directions for the Peninsula that rural land is not regarded as cheap industrial land, and that main roads are not seen as an alternative to existing township commercial areas or as opportunities to achieve high levels of commercial exposure.

55. Mr Tweedie further submitted that the proposal was the type of development which Clause 22.07 seeks to discourage, namely a commercial development in a rural area which does not respond to any real or significant "need or gap" in existing services, but rather is an attempt to commercially exploit the opportunities for exposure on this section of highway. I have already concluded that this proposal does meet what I consider is a significant limitation in the current level of service. I therefore do not consider that it is contrary to the policy basis quoted by Mr Tweedie, particularly in the absence of established township and village areas within several kilometres of the subject land.

56. Mr Tweedie criticised the proposal on amenity grounds. He submitted that modern service stations are visually prominent to compete for custom passing traffic and "grab the drivers attention". Such a description would certainly apply to most or all of the existing service stations that were referred to during the hearing. A proposal that met such a description would not be satisfactory in this locality, but I consider that the size of the subject land, the access proposed, the generous setbacks and landscaping proposed, the separation from adjoining properties, and the landscape screening in the vicinity of adjoining properties, all make this proposal acceptable in an amenity sense. Regard must also be had to existing land uses in the area.

57. Mr Tweedie pointed out that it would operate 24 hours a day, 7 days a week, and he quoted the applicant as suggesting that up to 800 vehicles per day would access the subject land. He said that it would be inevitable in such conditions that adjoining rural properties would be detrimentally affected by vehicle and customer noise, lights and exhaust fumes. I find it difficult, particularly given the separation distances from adjoining dwellings, that noise would be any worse than noise experienced as a result of traffic on the highway itself.

58. I consider that the proposed landscape screening, together with existing vegetation, would be adequate to control lights affecting neighbouring properties. As far as exhaust fumes are concerned I find it difficult to see how the exhausts from the 800 vehicles per day that would use the facility, and in any event would be using the highway, would add to the exhaust fumes generated by the large traffic volumes using the highway.

59. I have considered all the submissions and evidence, and have had regard to the relevant planning provisions, and have come to the following conclusions:

(a) The proposal would not be inconsistent with strategy or policy,

(b) A significant limitation in the current level of such service for traffic on the north bound carriageway in this vicinity has been demonstrated,

(c) The proposal would not be detrimental to the character of the area, would not be an unsatisfactory intrusion into the landscape, nor be contrary to the Environmental objective to be achieved in the Moorooduc Plain and Balcombe Valley.

(d) The proposal would not be contrary to proper and orderly planning of the area.

(e) The proposal would not adversely affect the amenity now enjoyed in the area to the extent that a permit should not be granted.

60. I have therefore come to the conclusion that a permit subject to conditions should be granted. The Responsible Authority provided draft conditions to be considered in the event that I did decide that a permit should be granted, and the parties made submissions on these draft conditions, which were generally agreed to. Mr Tweedie did however request that there be a condition requiring approval of the Environment Protection Authority and/or the Department of Human Services prior to use of non potable water for hand washing, and Mr Garde said that he did not oppose such a condition. It was agreed that some redrafting of conditions was required, and I have attended to this.

61. For the above reasons this Application is allowed. It is appropriate that a permit subject to conditions be granted, and I will so order.