Aldi Stores v Cardinia SC [2007] VCAT 1324

1. This application for review is granted and a permit is granted for buildings and works for a supermarket, reduced car parking and outdoor advertising signs in accordance with the endorsed plans provided for in the following conditions which are to be the conditions in the permit.

1. The development must not be commenced until amended plans have been submitted to and approved by the responsible authority. Such plans are to be drawn to scale with dimensions and three (3) copies are to be provided. When approved the plans will be endorsed as evidence of their approval and they will thereafter be the endorsed approved plans in relation to this permit. The plans are to be generally in accordance with the plans marked as exhibit W1 at the hearing by the Victorian Civil and Administrative Tribunal of planning application for review P760/2007 but modified to show:

1. all wall heights above ground level to be nominated on the plans; 2. all paving (except driveways) to be porous - pavers to be laid on a compacted sand base;

1. all plant and equipment (including airconditioning units, heating units, hot water systems) are to be identified;

1. a landscape plan, prepared by a landscape architect or person approved by the Responsible Authority as having sufficient competence in that field showing species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs; and 2. discrepancies and uncertainties in relation to the location of signs, the number of signs, the specifications of particular sorts of signs and as to whether openings are windows or doors are to be clarified.
2. The layout of the site and the size of the proposed buildings and works, as shown on the approved plans, must not be altered or modified without the consent in writing of the responsible authority.
3. The central reserve forming a round-about or traffic island at the intersection of Lakeside Drive with Portobello Road is to be altered at no expense to the responsible authority (subject to such alteration being approved by the authority responsible for the management and control of the roadway in that location) by paving the outer 1 metre of the circular round-about at a standard sufficient to provide roll-over passage for turning vehicles including 19 metre semi-trailers.
4. The areas set aside on the approved plans for access, circulation and parking must be constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority prior to the occupation the propose development.
5. The areas on the land set aside on the approved plans for vehicle and pedestrian access and car parking must be maintained at all times, to the satisfaction of the Responsible Authority.
6. All earthworks must be undertaken in a manner that minimises soil erosion, and any exposed areas of soil must be stabilised to prevent soil erosion to the satisfaction of the Responsible Authority.
7. Erosion must be controlled during construction to the satisfaction of the responsible authority in relation to which regard will be had to the Environment Protection Authority Guidelines TG208/90 attached to this permit.
8. Prior to the commencement of the use:
   1. direction signs, each not more than 0.3 square metres in area, must be provided at access points to clearly indicate the direction of traffic movement and location of parking areas; and
   2. lighting must be designed and installed in the areas of the land set aside for access and car parking.

all to the satisfaction of the Responsible Authority.

1. The areas shown on the approved plan for car parking must not be used for any other purpose.
2. Stormwater must only be discharged from the site by means of an underground piped drain, discharging to an outlet in the street or an underground piped drain to the approval and satisfaction of the Responsible Authority.
3. All development must accord with the approved plan.
4. All plumbing work and sewer pipes associated with the development must be concealed from general view.
5. Power and telephone lines to the building must be placed underground from the main point of service supplied by the authority outside the boundaries of the site.
6. Garbage receptacles must be stored out of general view and storage areas maintained in a clean condition to the satisfaction of the Responsible Authority.
7. In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   1. the development is not started before 2 years of the date of this permit; or
   2. the development is not completed before 4 years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three (3) months afterwards.

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

Mr. N. Crawford, solicitor of Best Hooper Solicitors, appeared for the responsible authority. He presented written and oral submissions.

Mr. Chris Wren SC, barrister, appeared on the instructions of Rigby Cooke, solicitors for the applicant company Aldi Stores Pty Ltd. He made oral submissions and called two expert witnesses. They were Jason Walsh, traffic engineer and Jamie Andrew Govenlock, town planner. In the course of oral evidence each of these witnesses adopted a written report which had been circulated prior to the hearing.

Ms. Sandra Rigo, town planner of Hansen Partners appeared for the Lakeside Lutheran Church. She made some oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Comprehensive Development Zone (Schedule 1) and subject to a Contributions Plan Overlay (Schedule 1) under the Cardinia Planning Scheme.

At the beginning of the hearing Mr. Wren Sc, who appeared on behalf of the applicant company, applied to amend the permit application by substituting modified plans which had been circulated to the parties under cover of a letter of his instructing solicitors, Messrs, Rigby Cooke, dated 14 June 2007. There were four sheets of such plans which were marked as exhibit W1. This amendment was granted by consent.

1. At the commencement of the hearing Mr. Wren SC, who appeared for the applicant company, raised the question of whether the Lakeside Lutheran Church is and is entitled to be a party to this proceeding. In that connection he referred to exemptions in the planning scheme from the giving of notices and from an objector's right to seek a review under s.82 of the Planning and Environment Act 1987 (PE Act).
2. In this case three permissions are required for the proposal. No permission is needed to use the land for a supermarket. However, permission is required for proposed buildings and works. Exemption provisions however apply in relation to an application for such permission.
3. This case also involves an application for planning permission for a reduction in the otherwise standard parking provision for a shop. No exemptions apply in relation to the application for that permission.
4. A third aspect is that permission is sought, and is necessary, for certain advertising signs proposed in relation to the supermarket. Exemptions apply in relation to that permission.
5. Of the three permissions required, two are exempt and objectors (like the Lakeside Lutheran Church) only have a right to receive notice and become objectors in relation to the proposed reduction in parking requirements. That parking question was not a matter of any particular interest to the Lakeside Lutheran Church.
6. I notice that the church has an interest in that it owns nearby land on the opposite side of Portobello Road, both in relation to the portion of that road fronted by the review site, and also where the road turns 90 degrees to travel in a northerly direction at a point to the east of the review site.
7. This current case is not an application brought under s.82 PE Act by objectors, but rather a "failure" review brought by the permit applicant pursuant to s.79 PE Act. The status and standing of would-be objectors in this situation was considered by the Tribunal in West Valentine Pty Ltd v. Stonnington CC [2005] VCAT 243 and by myself in Hope & Percy Pty Ltd v. Moreland CC [2006] VCAT 1445 where the view is taken that such would-be objectors are not parties and should not, except in special circumstances, be joined as parties.
8. The Lakeside Lutheran Church instructed Ms. Rigo to represent it at the hearing believing that it was an objector and a party entitled to be represented and to participate in the hearing. That is true, but only in relation to the reduction of parking question. This arose because the responsible authority gave notice to it and others of the application. As a matter of fact, a number of other parties purported to lodge objections after having received notice of the permit application. It is hardly surprising, in those circumstances, that it thought it was an objector and a party, and that it was entitled to have a representative appear for it and present a case at the hearing.
9. This case is another example of the inexpediency of the responsible authority giving notice of a permit application where the permission sought is exempt from the giving of such notice. It has the result of causing people to think that they are entitled to lodge objections and to participate in subsequent proceedings where that is not true. If a permit application is lodged with the responsible authority for a project requiring several planning permissions, and where the responsible authority considers that notice should be given of one or more applications in relation to permissions that are non-exempt, then it is desirable that it should be made clear in the notice which of the permissions sought can be the subject of objection.
10. That is a cumbersome thing to have to do, but it is preferable to giving notice generally, and misleading people into thinking that they can be objectors and parties in relation to exempt permissions being sought. There was some understandable complaint on behalf of the Lakeside Lutheran Church that, believing itself to be a party, it incurred expense in being represented. That unsatisfactory situation would be avoided if the responsible authority had made it clear, when giving notice, that it was limited to the carpark in question. It would also have been avoided if the responsible authority, upon receiving an objection extending beyond that question had made it clear (preferably in writing) to the would-be objector that its scope was limited to that part of the question. If a would-be objector fails to read and comprehend the limitations on its rights in those circumstances, then the fault can be attributed to the objector rather than the responsible authority or, for that matter, the Tribunal.
11. In the course of discussion on this question I was referred to a decision of the Tribunal in Prizac Investments Pty Ltd v. Cardinia SC [2006] VCAT 1687. That was a determination dated 17 August 2006, after the decisions in West Valentine and Hope & Percy. It concerned proposal for a hotel on land in close proximity, and subject to the same zoning and overlay controls, as the review site in this present case. The site in that case was on the other side of Lakeside Boulevard and a bit to the north.
12. I understand that I was referred to the Prizac case on the basis that the circumstances were similar and because the Tribunal, in that case, treated objectors as parties in spite of the planning scheme exemptions from notice otherwise required under s.52(1)(a)(b) and (d). I note that the members constituting the Tribunal for that case did not include a legal practitioner. Furthermore, the cases of West Valentine and Hope & Percy do not appear to have been referred to or considered by the Tribunal in that case.
13. It was put to me that the Lutheran Church might be regarded as an objector and party (having filed a statement of grounds) because the exemptions, whilst referring to other paragraphs of sub-section (1) of s.52, do not include paragraph (c). Section 52(1)(c) refers to the need to give notice under s.52 in the following terms:
    • (c) to any person to whom the planning scheme requires it to give notice;
14. I was then referred to s.96 PE Act.
15. Section 96 in fact deals with a situation that seems to have been superseded, for all practical purposes, having regard to cl.67 of the planning scheme. It provides for the situation where the council is the responsible authority but where the council itself needs, under the planning scheme, to obtain a permit. In those circumstances, and also where somebody else applies for a permit but where the land is owned by the responsible authority, the application was not to be dealt with by the council, but by the Minister for Planning, acting as responsible authority.
16. In the hotel case the municipality had apparently been the registered proprietor of the land, although it had sold the land pursuant to a contract of sale where the transaction had not been settled. Mr. Crawford informed me that a similar situation had obtained in relation to this review site in as much as the responsible authority had owned it at or about the time of the permit application, although it had sold it pursuant to a contract for the sale of land. It was thereby suggested that s.96 applied because it was the owner of the land.
17. Attached to the written report of Mr. Govenlock there is a title search dated 26 June 2007 which indicates the registered proprietor of the land in question in the current case, as at that date, was not the responsible authority, but Earldean Pty Ltd. On that basis, s.97 is no longer relevant, if it ever was. Section 96(6) provides that if the responsible authority ceases to own the land, then the Minister ceases to act as responsible authority and the council resumes its responsibilities as such.
18. In any event, s.96(2) contains an exemption from the application of the section. It provides that where a person other than the responsible authority requires a permit from the Minister in relation to land owned by the responsible authority there is an exemption from the sub-section if such an exemption appears in the planning scheme. This exemption is quite different from the exemption from notice under s.52. It is an exemption from the operation of s.96. Where the exemption applies the Minister does not act as responsible authority in place of the council. On the contrary, the council continues to act as responsible authority.
19. There is such an exemption found in cl.67.01 of the planning scheme. That clause contains exemptions from s.96(1) and (2). It is now an extremely wide exemption which is specified in three classes, the third of which reads:

1. In accordance with these provisions we have a situation where, for practical purposes, s.96 will not apply to make the Minister act as responsible authority in place of the council, but rather that the council will continue to act, even in relation to its own applications and applications by others in relation to land owned by it.
2. Clause 67.02 contains some safeguards in this regard where it provides that, in accordance with s.52(1)(c) of the Act, notice must be given to the owners and occupiers of adjoining land. However, s.52(1)(c) only requires the giving of notice where the planning scheme requires notice to be given. If it were not for the exemptions from giving notice under s.52(1)(a) or (b) or (d), such notice would be required. However, the permissions sought in this case are exempt[1] and I do not see any other provisions in the planning scheme requiring the giving of notice in this case to which s.52(1)(c) could apply.
3. In any event, there can be an issue as to whether the Lakeside Lutheran Church is the owner of "adjoining land" in terms of cl.67.02 in as much as its land does not touch the review site, but is over the road.
4. In the circumstances, I concluded that the Lakeside Lutheran Church should not have been give notice because of the exemption from giving notice, except in relation to the carpark in question, and that it is not a party, except in relation to that question.
5. I ruled that the church was entitled to be heard in relation to car parking but was not a party in relation to the other permissions being sought. Ms. Rigo then sought leave to make submissions on behalf of her client. I said that I would reserve that question until we had heard the case on behalf of the responsible authority. She subsequently received instructions to withdraw from the case. However, she remained in the hearing room during the case on behalf of the responsible authority. At the close of that case I asked her whether there were any further submissions she wished to make. She adopted what had been said on behalf of the responsible authority and made some brief further submissions pursuant to the leave I had impliedly granted her by asking her whether there were further submissions she wished to add.
6. This was just before the adjournment for lunch. After making her further submissions pursuant to leave she excused herself from further attendance and did not return after lunch.

1. This proposal is for a supermarket. I borrow the following account of the site and locality, and of the proposal, from paragraphs 3 and 4 of the written submissions on behalf of the responsible authority.

A useful description of the Land is provided in Council's Officer's report as follows:

The subject site is located in the Lakeside Boulevard Activity Centre and is located on the eastern side of Lakeside Boulevard and abuts Paddington Walk and Portobello Road. The site is rectangular in shape with a frontage to Portobello Road of 62 metres and a depth of 64.5 metres, with an overall area of approximately 3872 square metres. The site is currently vacant.

North: Immediately north of the subject site the land is occupied as car parking which services the Coles supermarket and a number of small shops which form part of the Lakeside Activity Centre.

East: Immediately east of the subject site is a Child Care Centre.

South: Across Portobello Road, the land is developed and used for the Lakeside Lutheran School.

West: Across Lakeside Boulevard, the land is currently vacant.

The land is affected by a registered restrictive covenant AE904712S which was created on 19 February, 2007. In general the covenant restricts the development of the land for the purpose of a retail complex. The covenant also requires approval by Delfin prior to the commencement of any works on site.

The proposal was described in Council's Officer's report as follows:

The proposal will comprise buildings and works to construct a supermarket, associated signage, a loading bay and car parking. Below is a table which summaries (sic) the proposal:

The building will comprise an ALDI supermarket with a net retail area of 950 square metres. Approximately 475 square metres is to be provided for storage, office and amenities. A loading bay of approximately nineteen (19) metres is to be located at the rear of the site and accessed via Portobello Road. Fifty seven (57) car spaces are proposed.

A number of signs are proposed as part of the development, and these include -

1. one (1) light box mounted along the southern elevation;

2. one (1) canopy sign to be mounted above the northern elevation;

3. illuminated pole sign along the northern side of the site, adjacent to the store entrance.

A total of fifty-seven (57) car spaces are proposed on site, with four (4) to be designated as staff parking. The proposed access to the car spaces is via three access ways along Paddington Walk.

A loading bay is proposed to be located at the south western corner of the site and access via Portobello Road.

The overall building height will be an average of 5.8 metres, however, it will extend to 7.1 metres along the front elevation.

The construction materials proposed for the supermarket are rendered concrete and include architectural detailing to be finished in three (3) different colours. A clock tower is proposed.

1. At the conclusion of the hearing, I announced my decision and gave fairly detailed oral reasons in relation to the issues raised in the course of the case. These reasons have been recorded and the representatives of the parties made notes.
2. After I had done so, Mr. Wren SC indicated, on behalf of his client, that no written reasons were required in the circumstances. Mr. Crawford observed that he had taken fairly full notes of my reasons which I took to be acquiescence that further written reasons are not required. If access to my reasons is required it should be sought by access to the recording, or rather to a transcript of the recording.
3. In the course of the reasons, I included some discussion of the nature of neighbourhood centres like this one, and the place of supermarkets within them. I also noted the various difficulties presented by supermarkets however desirable they might be from other points of view. These difficulties include the need for large areas of car parking and large buildings, generally with large, long walls which can be bland and boring.
4. The responsible authority has criticised the layout and design of this proposal and sought a relocation and re-orientation of the buildings so as to present a built structure along Lakeside Bouldevard, more or less at the line of the street frontage with a view to obtaining an active area in that location, and with loading and parking facilities to the rear.
5. The proposal envisages approximately half the frontage to Lakeside Drive being occupied in that way, with the other half being part of the carpark which would thereby be visible from that street giving prospective customers an opportunity of location the carpark, and perhaps seeing whether there are vacant spaces within.
6. Although I acknowledged the reasoning behind the objections of the responsible authority in these respects I nevertheless concluded that the proposal is acceptable in its present form, including having its "back of house" facilities (including the loading bay) located on the south side of the proposed building with visibility from and over Portobello Road and the Lakeside Lutheran Church property to its south.
7. Whilst recognising the difficulties of locating carparks and accommodating large buildings with large and long walls, I consider that the ameliorating aspects of this proposal, including physical articulation, imaginative use of colours and the inclusion of interesting and attractive features (including a clock tower and the proposed signs) mean that such disadvantages are largely overcome, and probably overcome to the extent that it is possible to do that in the circumstances, having regard to the locality and the size of the proposed supermarket. This is certainly a superior proposal, from these points of view, as compared to the existing Coles supermarket to the north.
8. Although there was mention of this being an overdevelopment of the site, that is not an issue that was pursued and is not justified in my opinion.
9. I was satisfied, partly in reliance on the expert evidence of Mr. Walsh, that the proposed 57 car parking spaces is appropriate in the circumstances (including the availability of other parking nearby on the Coles site and on the street, but which is not likely to required) is sufficient. Council traffic engineers have observed that the proposed provision was less than that specified in the planning scheme without giving any indication at all as to what would be an appropriate level. The council planning officers had adopted a formula of 5.5 spaces per 100 square metres of retail area, apparently on the basis that this formula had been adopted in relation to other supermarkets, but without any follow-up survey to see if it was sufficient or, for that matter, excessive. I have preferred the evidence of Mr. Walsh, including his opinions and the survey evidence upon which he relied.
10. There was no opposition to the proposed signs.