Clustering retail and service providers in single locations, obviating the need for residents to undertake multiple trips to meet their needs;

Facilitating the viability and delivery of higher density housing types in residential areas adjacent to centres; and

Ensuring the delivery of retail and service floor space in public transport nodes.[5]

1. We conclude the proposal does not accord with the strong policy direction to locate and consolidate new commercial facilities in existing or planned activity centres. Rather, it is our view that the proposal would introduce new retail activity in a location that is not identified as an activity centre in the Planning Scheme. It is in a location that cannot be considered conveniently accessible by public transport; it does not have the advantage of providing co-located community services or facilities that allow for multi-purpose trips; it does not have the place-making opportunities; or the community interaction and business synergy benefits that are sought for activity centres. The C2Z means there is no opportunity for development of dwellings in and around the centre in a manner that supports reduced car dependence and contributes to viability of activity centres.
2. Notwithstanding our finding that the proposal is not supported by activity centre policy, we agree with the Applicant that policy is a guide and should inform the exercise of discretion and a balanced approach is required having regard to the totality of the Planning Scheme, including other policy. We address other relevant provisions of the Planning Scheme next.

IS THE PROPOSAL SUPPORTED BY OTHER PROVISIONS OF THE PLANNING SCHEME?

1. The Applicant referred extensively to the changes to the commercial zones in the Planning Scheme introduced under VC100. The Applicant highlighted that no permit is required for a supermarket of 1800 square metres or specialty shops of 500 square metres in a C2Z. Therefore, in the Applicant's submission, sites outside traditional C1Z are now regarded as wholly acceptable for substantial retail activity. It says VC100 was designed to improve the level of retail services to the community and this policy shift has been acknowledged in other Tribunal decisions.[6]
2. Findings in various reports[7] that informed the reform of commercial zones were referred to by the Applicant including identification of the need to reduce regulatory burdens to boost productivity, addressing zoning restrictions that reduce land availability for retail outlets and the investment opportunities provided by 'out-of-centre' location.
3. Mr McNamara says VC100 is a deliberate policy change to the way retail facilities might be provided. He agrees that the amendment has broadened the physical locational opportunities and created greater flexibility and growth opportunities for new entrants to the market.
4. The Applicant argues that Council, Ritchies and AGRA fail to recognise the fundamental shift in statutory planning about establishing retail premises throughout Victoria that was brought about by VC100. It says their views are an:

...overly narrow and outdated approach to policy. Amendment VC100 plays an important role in the Tribunal's decision making in this case because it informs the correct approach to the zone and associated policy and because it is underpinned by a significant body of work that explains its sound economic rationale.[8]

1. The Applicant is critical of Council for not undertaking further strategic work post VC100 and says there is no express support or guidance in local policy that reflects this policy shift. Mr McNamara concurs with this view.
2. The Applicant submits that as an important matter of principle 'out-of-centre' development in the C2Z can no longer be regarded as 'contrary to policy' because the C2Z encourages all retail land uses, and supermarkets of a certain size are as of right and have the capacity to create a new centre without the exercise of discretion.
3. The Applicant argues there is significant support for the proposal in policies that seek to support the economy by adding jobs and investment benefits whilst also providing of the needs of residents in the catchment.
4. Mr McNamara says the proposal meets the objectives of clause 18 - Transport as it is well situated as a commercial land use given it is at the junction of two arterial roads and near a freeway interchange.
5. Council acknowledges that the changes introduced under VC100 allow more flexibility in the siting of retail uses outside a C1Z but says this proposal seeks to double what is permitted as of right and the new supermarket will function as an anchor to a locally significant shopping centre.
6. The Council argues the proposal does not align with the purposes of the zone as a substantial supermarket anchor is not suitable in a zone where bulky goods retailing is preferred and further, it would have an adverse impact on the existing activity centres. It says clause 21.02-3 states activity centres are the focus to integrate transport and land use planning and there is a need to protect, strengthen and diversify the role and function of these centres.
7. Council accepts that VC100 made more uses as of right or subject to discretion on C2Z land but submits these changes were not accompanied by a shift in policy that advanced support for such outcomes. Council says changes in policy were limited to support for small scale shopping opportunities that meet local needs and where net benefit to the community is achieved.[9] It is significant, in Council's submission that the extensive policy that supports a hierarchy of activity centres, supports integration of public transport nodes with activity centres, seeks residential and a range of retail and other services within activity centres did not change under VC100.
8. Ritchies argues that VC100 did not displace the well-established principles of directing growth into defined activity centres. It says clause 17.02-2S and the PPF make this clear. It submits the C2Z reinforces these policies as larger supermarkets still require a planning permit and assessment against activity centre policy.
9. Mr Milner considers Amendment VC100 was designed to encourage and enable small supermarkets but an:

...appreciation of the strategic site and policy context was required before endorsing the merits of any proposal seeking to establish a more substantial proposal.[10]

1. VC100 introduced two new commercial zones. The explanatory statement for the amendment said:

The new commercial zones aim to provide greater flexibility and growth opportunities for Victoria's commercial and business centres, responding to changing retail, commercial and housing markets by allowing for a wider range of uses to support mixed use employment.

1. We agree VC100 changed the retail planning landscape with a fundamental shift in allowing retail uses on land outside traditional activity centres. In allowing a supermarket of 1800 square metres or specialty shops of 500 square metres in a C2Z without a permit, there is clear support for retail use and development outside the C1Z land of most activity centres.
2. The purpose of the C2Z is:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To encourage commercial areas for offices, appropriate manufacturing and industries, bulky goods retailing, other retail uses, and associated business and commercial services.

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive uses.

1. As a permit is required for a retail proposal with floor area greater than specified for 'as-of-right' use, we are required to consider the purpose of the C2Z. The first purpose requires consideration of policy.
2. We have set out the relevant PPF and local policy provisions in the section on the Planning Scheme context. We have assessed the proposal as failing to accord with the State and local policies that provide strong strategic support for new commercial development to be located in existing or planned activity centres.
3. Also important is policy relating to employment, business and out-of-centre development.
4. Clause 17.01-1S relates to a diversified economy and seeks to facilitate growth in a range of employment sectors including retail. The proposal will provide for new jobs but the extent to which this is greater than the employment provided by existing retail facilities on the land and the impact it may have on jobs in nearby activity centres is contested. We address this issue in more detail later.
5. The objective relating to business[11] is to encourage development that meets the needs of the community for, amongst other things, retail services. Subject to establishment of need, a matter we address later, we consider the proposal is supported by this objective.
6. There is a range of strategies related to business.
7. We consider the proposal fails to meet the strategy that seeks location of commercial facilities in an existing or planned activity centre.
8. There is some aggregation of commercial facilities with the proximity of the proposal to the existing hotel and the mix of commercial premises around the nearby intersection although walkability between the various uses is limited due to the expansive road reserves.
9. It could be accepted that the location of the proposal is adjacent to an existing 'commercial centre' where strategy seeks new convenience shopping facilities to be located. However, this strategy specifically relates to providing for needs of the local population in new residential areas. The residential areas around the review site are not new so it is arguable that this strategy is not relevant.
10. A further strategy seeks to provide small scale shopping opportunities that meets the needs of local residents and workers in convenient locations. The Applicant does not contend the proposal is small scale. We agree and thus find this strategy is not relevant.
11. The provisions of clause 17.02-2S relating to out-of-centre development are relevant. The objective is to 'manage' out-of-centre development. This requirement to 'manage' in our view requires an exercise in discretion - it does not seek to 'restrict, nor does it seek to 'encourage'.
12. The strategies of this clause are:

Discourage proposals for expansion of single use retail, commercial and recreational facilities outside activity centres.

Give preference to locations in or on the border of an activity centre for expansion of single use retail, commercial and recreational facilities.

Discourage large sports and entertainment facilities of metropolitan, state or national significance in out-of-centre locations unless they are on the Principal Public Transport Network and in locations that are highly accessible to their catchment of users.

Ensure that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal or provides small scale shopping opportunities that meet the needs of local residents and workers in convenient locations.

1. There was no significant dispute that it is only the final strategy that is of relevance. We accept the proposal is not single use as it contains a bottle shop, supermarket and speciality shops.
2. This final strategy provides two options when out-of-centre proposals can be considered. We consider it is only the first one that is relevant - where the proposed use and development is of net benefit to the community in the region served by the proposal. The second option that refers to small scale shopping opportunities to meet the needs of local residents and workers in convenient locations we consider is not relevant given the size of the retail offer proposed.
3. Thus clause 17.02-2S requires us to exercise discretion to grant a permit only if we are satisfied that the proposal is of net benefit to the community in the region served by the proposal.
4. Other policy of relevance, in our view, includes the direction for reduced dependence on the use of private motor vehicles; for facilitating greater use of public transport; support for development in activity centres with a range of services and facilities to provide for multi-purpose trips; and for facilitating sustainable development that takes advantage of investment in transport.[12]
5. Although the review site is well located for access by private vehicle with convenient frontage to main roads, the location is not well served by high quality public transport. We are not persuaded that the location of the proposal accords with the emphasis in policy on reducing use of private motor vehicles or providing for multi-purpose trips.
6. Having considered the relevant policy required to be implemented in the first purpose of the C2Z we now turn to the second purpose. This states:

To encourage commercial areas for offices, appropriate manufacturing and industries, bulky goods retailing, other retail uses, and associated business and commercial services.

1. It is our view that the proposal is supported by this purpose that specifically encourages 'other retail uses'.
2. The final purpose in the C2Z relates to the impacts on safety and amenity of adjacent, more sensitive uses. Given the site context, we are satisfied the proposal will not violate this purpose.
3. We agree with Council's observations that VC100 did not include significant changes to the PPF that reduced support for new commercial development to be directed to existing or planned activity centres and to integrate public transport nodes with activity centres. However, that does not mean that there is no support for commercial use and development outside activity centres. To the contrary, the purpose of the C2Z that encourages retail uses and the zone provisions that allows retail uses up to a certain size without a permit is clear demonstration there is support and indeed capacity to create a new activity centre without discretion.

WILL THE PROPOSAL CREATE A NEW ACTIVITY CENTRE?

1. Council argues the proposed supermarket will function as an anchor to become a locally significant shopping centre with a large bottle shop, specialty retail and food and drink premises. Ritchies and AGRA say it will be an unplanned activity centre with a large supermarket that will compete with Aspendale Gardens, some four minutes drive-time away. They say it is an isolated car dependent location, without the community services and facilities expected in an activity centre.
2. Mr Milner says the subject site already contains a pocket of convenience outlets and personal services that gain advantage from their exposure to the arterial road network. He considers the existing conditions at the intersection are a low-key commercial precinct rather than an activity centre. He says the proposal will create a new activity centre as it will offer uses and floorspace typically found in a small neighbourhood centre.
3. The Applicant argues the site already operates as an existing commercial node given the pocket of commercial uses on or near the subject site. It submits that nothing in clause 17.02-1S says that new convenience shopping facilities must be in identified activity centres. It relies on the evidence of Mr McNamara who says the site is already operating as a de-facto activity centre due to the presence of the petrol station/convenience store, hardware store, bottle shop, take-away food premises and childcare centre that support the local community. He considers if approved, the site will remain a drive-in, limited services site at the intersection of two main roads.
4. Mr McNamara says the proposal will serve a gap in the provision of retail services but will not replace the way that the existing activity centres network functions. He says the existing activity centres will continue to attract residents requiring the broader functions provided by those centres.
5. The Applicant argues an area can function as an activity centre even if it is not designated as one in the planning scheme. It says it can perform some of the roles of an activity centre, even if it does not perform all of them. The Applicant says that although the approach of the parties is to consider the proposal as 'out-of-centre' because it is not located in a recognised location in the local retail hierarchy, the existing operation of the area as a commercial cluster means it is unlikely to pose the same kind of economic risk to existing centres as a new stand-alone retail development.

1. We agree with the submissions that the review site is within an area that operates as a well-established commercial node. This includes the current use of the review site for retail associated with hardware and liquor sales.
2. We agree the proposal will create a larger commercial node at this intersection as the inclusion of a full-line supermarket and specialty shops significantly changes the type of retail activity occurring on the site. Its location on two main roads will provide convenient access by car.
3. Whether the proposal effectively creates a new activity centre can be argued both ways. It will, as pointed out by Mr Milner, offer floor space and uses typically found in a small neighbourhood activity centre. With the existing commercial uses nearby, it would offer more than many small activity centres.
4. Conversely, it can be said that the proposal is effectively re-purposing an existing building currently used for retail purposes in an existing commercial node. The C2Z that applies to the land and nearby land will limit the opportunity for growth in the manner expected for a 'rounded' activity centre. For example, development of dwellings is prohibited.
5. Ultimately in reaching our view on whether the proposal will result in a net community benefit, we think the more important consideration is whether approval of supermarket and specialty shops will have a detrimental impact on the function and viability of existing activity centres. We address this matter following an assessment of need.

IS THERE AN IDENTIFIED NEED FOR ADDITIONAL SUPERMARKET FLOOR SPACE IN THIS PART OF THE MUNICIPALITY?

1. The Applicant argues the spatial distribution of activity centres results in a lack of convenience retailing in the south east area of the municipality. It says this does not meet Plan Melbourne's expectations for people to meet their daily needs within a 20-minute walk or 800 metres from home (5-minute drive). It relies on the spatial analysis conducted by Mr Ganly that shows a significant proportion of residents within the catchment presently travel more than 5 minutes to access a supermarket. It argues the undersupply and poor spatial distribution perpetuates inconvenience, lack of choice for residents and results in significant escape expenditure from the catchment.
2. It is the evidence of Mr Ganly that there is a substantial undersupply of supermarket floor space in the Chelsea Heights region, indicating a need for the addition of a full-line supermarket. Having regard to the average provision for supermarket floor space for Melbourne and the population of the catchment, Mr Ganly says there would be a demand for 13,326 square metres of supermarket floor space. The total floor space in the catchment is approximately 7070 square metres representing an undersupply of 6256 square metres. These figures are updated from the Need & Economic Impact Assessment (NEIA)[13]
3. Mr Ganly revised his evidence (after the conclave of economic witnesses)[14] to reduce the floor space attributed to Ritchies IGA to 2206 square metres. His estimate of supermarket undersupply is increased from 6256 square metres to 6981 square metres based on the revised floor space. It is his evidence that Ritchies should not be considered a full-line supermarket given it does not meet the generally recognised size of at least 3000 square metres.
4. Adopting a 5-minute drive as the benchmark for convenient drivetime to a full-line supermarket, Mr Ganly's analysis is that there is poor access from within most of the catchment. It is his evidence that of the 18,227 residents within the catchment only 6118 currently have access within a 5-minute drive-time to a full-line supermarket. This means 12,109 residents in the catchment do not have such access. Mr Ganly referenced a benchmark in recently released Draft Guidelines for Precinct Structure Planning in Melbourne's Greenfields which proposes that 80-90% of dwellings should be located within 800 metres of an activity centre.

Figure 5: Access to full-line supermarket within a 5-minute drive time Source: Supplementary evidence of Mr Ganly dated 19 November 2020 (Figure 2, page 7)

1. It is Mr Quick's evidence that the current provision of supermarket floor space (16 square metres per 100 residents) in the trade area is well below the Melbourne average (32 square metres per 100 residents). Even if the proposal is approved (raising it to 24 square metres per 100 residents) he says the area would continue to suffer an undersupply of supermarket floorspace.
2. Mr McNamara says the South Kingston area is poorly served by the network of activity centres due to an inequitable activity centre pattern around the Wells Road residential areas that extends from Patterson River and up to the Waterways Estate. He says this has occurred due to the prevailing settlement pattern that separates the beachside suburbs from Wells Road/Mornington Peninsula Freeway area by the highway/rail corridor and limited rail crossings to the east. Mr McNamara says this proposal will fill the gap for areas east of the Edithvale wetlands as these residents do not have convenient, accessible and competitive food and grocery facilities in easy reach.
3. Ritchies state that the alleged need for the supermarket is overstated and does not justify a large supermarket in an out-of-centre location.
4. Ritchies say the residents of Chelsea Heights and Aspendale Gardens have convenient access to multiple full-line supermarkets including Ritchies IGA at Aspendale Gardens, Woolworths at Chapel Road, Keysborough, the Woolworths and Coles at Patterson Lakes and the Woolworths at Chelsea. It is submitted that the level crossing removal program will improve accessibility to the activity centres along Nepean Highway and the construction of the Mordialloc bypass will improve accessibility generally within the Chelsea Heights/Aspendale Gardens area.
5. Ritchies point out that it is agreed between the economic witnesses that the extent of population growth within the catchment will be negligible. In their submission, this means the proposal is not required to meet the need of a growing population. Rather, it will have to rely on capturing expenditures from the existing supermarkets. It is further submitted that the site is not central to the catchment as it is skewed to the north, south and west. It notes the Mornington Peninsula Freeway acts as a barrier to the east, in conjunction with the Green Wedge Zone (GWZ). It submits the site is removed from most of its immediate residential catchment and other commercial uses by the two busy arterial roads that act as a barrier to pedestrian connectivity to surrounding residential and commercial land uses.
6. Mr Milner notes the site is located at the edge of a narrow fully established corridor of urban land that is constrained in its access to its immediate catchment which is influenced by the Edithvale wetlands and GWZ. He considers there is minimal prospects for significant population growth in this area and therefore the use will capture customers from other supermarkets and activity centres including Chelsea and Aspendale Gardens.
7. It is Mr Shipp's evidence that there is no compelling evidence that indicates an undersupply of supermarket floor space in the catchment having regard to:
   • The use of the Melbourne average as the 'benchmark' for adequate supply means equal numbers of areas will have a provision ratio higher and lower than the benchmark. Lower than average does not necessarily demonstrate undersupply as it would apply to half of all areas in the metropolitan area.
   • The assessment is highly sensitive to the spatial area chosen. The spatial area chosen excludes major competing retailers at the periphery of the catchment, including Woolworths and Aldi at Mordialloc, Woolworths and Coles at Patterson Lakes and Aldi at Carrum. When the population and supermarket floor space of Mordialloc, Patterson Lakes and Carrum are added to the spatial area the average provision of floor space increase to 29 square metres per 100 residents.
   • The estimates for trading levels of existing supermarkets in the catchment made in the NEIA do not suggest the type of strong performance that would be evident if there was a considerable undersupply of supermarket floorspace.
8. Mr Shipp says that adopting a 5-minute travel time as a measure of reasonable and convenient access, almost all residents in the catchment (except small pockets of Aspendale and Chelsea Heights) can readily access a full-line supermarket.

Figure 6: Access to full-line supermarket (5-minutes travel time) Source: Evidence of Mr Shipp dated 5 November 2020 (Figure 4, page 16)

1. Mr Williams disagreed with the comparative use of average supermarket floorspace as a measure of undersupply saying an average is not necessarily a measure of adequacy or need. He highlighted the provision rate of floorspace is highly sensitive to how a catchment is defined and noted that areas at the edge of the catchment have close access to substantial supermarkets such as Mordialloc to the north and Patterson Lakes to the south.

1. There is difference of opinion in the economic evidence on whether there is an undersupply of supermarket floor space and a corresponding high level of need in the area of the review site. Having regard to the evidence and submissions, we are not persuaded that there is an unqualified demonstration of need for additional supermarket floor space on the review site. We say this for the following reasons.
2. The site sits in a context where population growth is limited, a view shared by all four economic witnesses. This limitation is imposed by planning controls that designate the nearby residential areas for only incremental housing change, the physical barrier of the Edithvale wetlands to the west and the land included in the Green Wedge Zone to the south east. These constraints on growth mean there should be no reliance on future population growth to support the proposal.
3. The assessment of convenient access to a full-line supermarket relies on a variable interpretation of what is meant by 'full-line'. We were not advised of any universally accepted definition of a full-line supermarket. We were referred various measures including a floorspace threshold, range of products, 'facings' (the number of items a customer sees), choice of similar products and regularity of restocking. We take the view that a full-line supermarket is one where a consumer expects to do a weekly shop. On the information before us and having regard to our site visit, we are satisfied Ritchies IGA at Aspendale Gardens is capable of handling a weekly shop, a view Mr McNamara offered in cross examination. We further note that need for some households may be met by smaller supermarkets in the area.
4. We agree with Mr Williams and Mr Shipp that a floorspace supply lower than average does not necessarily translate to an undersupply.
5. The need assessment is strongly influenced by catchment definition. While boundaries for a catchment must be set, the location of a number of supermarkets on the periphery of the catchment undermines the conclusion that there is a clear undersupply of supermarket floor space.
6. The 'tests' for convenient access referred to by witnesses are not referenced in the Planning Scheme. There is no provision that says households should be within a 5-minute drive to a full-line supermarket or within 800 metres of an activity centre. We acknowledge that Plan Melbourne's expectations, the 20-minute neighbourhood concept to provide people the ability to meet most of their everyday needs within a 20-minute walk, cycle or local public transport trip from their home and suggested distances in the Greenfield Guidelines provide some guidance on the measure of convenience.
7. It is our view that the assessment of need for additional supermarket floor space is not an exact science. Estimates of need will vary considerably depending on inputs. The differences in the visual representations of the 5-minute drive to access a full-line supermarket provided by Mr Ganly and Mr Shipp (Figures 4 and 5 above) demonstrate this point. We agree that a supermarket on the review site will provide residents of the area with an additional and convenient full-line supermarket, but we are not persuaded that the need is unequivocal.

WILL THE PROPOSAL CONTRIBUTE POSITIVELY TO EMPLOYMENT?

1. The Applicant submits the proposal will positively contribute to employment. Mr Ganly in the NEIA estimates the following:
   • the construction phase of the proposal would generate 150 full-time equivalent jobs (FTE) with an additional 200 indirect FTE jobs supported though multiplier effects in the local economy during this phase.
   • A total of 127 ongoing direct FTE jobs will be created as well as an additional 80 indirect FTE jobs though multiplier effects in the local economy.
   • With an estimated 80 people working in the exiting Mitre 10 and bottle shop, the redevelopment would result in a net increase of 47 FTE jobs and 77 total FTE jobs in the local economy.
2. It is Mr Shipp's evidence that the proposal would primarily result in a transfer of sales from existing retailers and this generally means that employment is transferred from one location to another. In his view this does not result in a net employment benefit and rather, should be considered a neutral impact.
3. Mr Williams questions the extent of employment generated by construction stating referring to a recent report[15] that suggests a different job multiplier benchmark. In relation to ongoing employment, Mr Williams says the failure to account for a decrease in retail employment due to loss of sales as a result of the development is a serious flaw in the calculation. If the impacts of lower retail expenditure in other centres is considered, Mr Williams expects the ongoing employment impact of the proposal would be close to neutral.

1. Even if the estimates of FTEs in the construction phase are incorrect, we accept there is economic benefit in the employment created by construction. Based on the evidence, the ongoing employment benefits are less clear. On balance we find there will be positive impacts created by a net employment contribution.

WILL THE PROPOSAL UNDERMINE THE VIABILITY OF EXISTING ACTIVITY CENTRES?

1. Council submits the proposal has the potential to significantly affect nearby established neighbouring activity centres, particularly Aspendale Gardens and Chelsea by drawing investment and expenditure away from those centres. Council relies on the evidence of Mr Williams that a new substantial supermarket at Chelsea Heights necessarily means there will be lower sales and less foot traffic at surrounding activity centres. Mr Williams says fulfilment of the planning vision for a successful activity centre hierarchy requires the Chelsea MAC and Aspendale Gardens NAC to thrive, not just hang on.
2. Mr Williams says the approach taken to modelling the retail impacts of the new supermarket on surrounding centres undertaken in the NEIA appears broadly sound. He notes the report identifies the largest total retail impacts will be on Chelsea and Aspendale Gardens as receiving a drop in total retail trade of 8.1% and 6.9% respectively with food and grocery sales dropping 11.6% and 9.3% respectively. Mr Williams says the typical threshold for concerning impacts in regard to food and grocery sales is 10% so these impacts are right on the threshold. It is his evidence that while these retail impacts in isolation may not threaten the overall viability of a healthy centre, they will necessarily mean that centres will not accommodate as much activity as would otherwise occur without approval of the proposal. He says this is of particular concern for Chelsea which is facing challenges in fulfilling its role as a MAC as well as the additional challenges Covid-19 is posing for retailers across all centres.
3. Ritchies submit the proposal will likely have the most impact on the Aspendale Gardens supermarket given it is within a 4-minute drive of the review site and is of comparable size. It is submitted that the proposal will undermine the Ritchies supermarket having regard to the following:
   • The catchment of the proposed supermarket is relatively small and constrained by physical barriers and almost entirely overlaps with the catchment of Aspendale Gardens supermarket.
   • Significant population growth within the catchment is not expected.
   • The impact to the Ritchies supermarket is outside acceptable limits and, given its anchor role in the Aspendale Gardens activity centre, will undermine the activity centre as a whole.
4. It is the evidence of Mr Shipp that approximately $5.54m of sales is likely to transfer from the Aspendale Gardens supermarket to the proposed supermarket. This equates to 26% of its current turnover and it is Mr Shipp's opinion that this loss in a single year would be major challenge for a supermarket to withstand. He says this level of impact would result in the supermarket considerably underperforming relative to other supermarkets and would require changes to operations including a reduction in staff levels, decrease in stock and range and potentially a reduction in floorspace utilised. The market share taken by the proposal will, in Mr Shipp's view, continue over time. He says that given the market size is unlikely to increase to any great extent, the trading impacts of the proposal will endure for many years. Mr Shipp says it relevant that the loss of sales at the supermarket will translate to the reduction in footfall to the Aspendale Gardens activity centre overall resulting in flow-on sales losses to other businesses in the centre which rely on the supermarket as the main driver of visitation.
5. AGRA says the proposal will result in significant detrimental consequences to businesses at Aspendale Gardens activity centre. AGRA says attracting and retaining speciality shops to the Aspendale Gardens centre has been an ongoing issue in a volatile and fragile retail market. The approval of this proposal, in AGRA's submission, creates a real possibility that the centre will become unviable with the associated loss of benefits to the community. AGRA questions the forecasts and conclusions made by witnesses for the applicant and submits the peer review by Ethos Urban[16] represents a more realistic account of the economic impacts. This report says the Chelsea centre and the Aspendale Gardens centre are likely to experience a reduction in total sales in excess of 10% and 20% respectively with impacts higher for food-based retailers.
6. The Applicant relies on the NEIA as updated in the expert evidence of Mr Ganly and on the evidence of Mr Quick. Taken together, the Applicant says this evidence affirms the proposal will not undermine the role, function or viability of existing activity centres. The Applicant says the relevant question is not whether the proposal will impact on the profitability of commercial competitors but rather whether the extent and adequacy of facilities available to the local community will be adversely affected.
7. In his evidence, Mr Ganly says the impact to the Chelsea activity centre would be -7.7% and on the Aspendale Gardens activity centre would be -6.9%. In the NEIA, he estimates the overall average forecast on the catchment area retailers is -7% (with -10.6% for Food) compared to sales that would otherwise have been achieved in 2022. He says such one-off impact for food and other retailers is relatively modest and well within the limits expected in a properly functioning retail system. He says it is important that the majority of the impacts will be experienced by successful supermarkets and will be highly unlikely to cause these businesses to cease trading as a result.
8. In his evidence, Mr Ganly criticises Mr Shipp's analysis for focussing entirely on the impact on Ritchies supermarket rather than the entire centre and the wider activity centre network. However, adopting that approach he says the impact would be -14.8% to Woolworths at Chelsea and -8.6% to Ritchies at Aspendale Gardens and such impacts can be accommodated without threatening viability of those supermarkets. Mr Ganly contends the Ritchies' strong brand identification combined with its customer loyalty will help combat an incoming competitor.
9. It is the evidence of Mr Quick that the impacts of the proposal will be predominantly on the supermarkets across all centres, particularly the full-line stores. He says these stores and operators are large enough to absorb the impacts expected and will continue to trade, thereby not impacting the service they provide the community, nor the role played by the centres they are within. He says the impacts are within the range expected in a competitive market with the total impact to supermarkets within or on the periphery of the trade area is assessed at $22.2 million with impacts ranging from -1% for Carrum up to -9% for the nearby Chelsea Heights IGA centre. For Chelsea MAC he estimates -8.6% of annual turnover and for Aspendale Gardens NAC -8.6% post the proposal operating.
10. Mr Quick also criticises Mr Shipp's analysis for focussing on one store only. However, adopting Mr Shipp's approach but adding a 'pro-rata market share' impact assessment, Mr Quick estimates the impact on Ritchies would be -12% which he says is a manageable impact which Ritchies is able to absorb and respond to. In Mr Quick's view, Ritchies is not directly competitive nor a direct substitute for the proposed Woolworths due to the differences in full-line offer, the other drivers for visiting Aspendale Gardens that will continue to attract business, shopper loyalty and the convenience of the centre for those in the immediate area.

1. Based on the evidence, we are satisfied that although there will be a loss in trade experienced by existing supermarkets and nearby activity centres, it will not be to be the degree that results in their closure or undermines their continued viability. We reach that view having regard to a number of matters.
2. Although we acknowledge there is a degree of subjectivity to the estimates of trading impacts, we prefer the analysis of Mr Quick and Mr Ganly which includes assessment of impacts on nearby centres and on the overall activity centre rather than the impacts on a single store. Their evidence estimates a maximum impact on the Chelsea MAC and Aspendale Gardens NAC of -8.6% which they both say are within the range expected in a competitive market.
3. We accept Mr Quick's evidence that the proposal will not impact the ability of the surrounding centres to serve their designated role and there will not be major changes in vacancies as a direct result of this development.
4. In reaching our view on the likely impact, we have had regard to Mr Williams' evidence that accepted the approach of Mr Ganly (as set out in the NEIA) for modelling the retail impacts of the proposal on surrounding centres. Furthermore, Mr Williams accepted the impact on food sales for Chelsea at -11.6% and for Aspendale Gardens at -9.3% were close to the typical threshold of -10%.
5. There was no economic evidence that suggested that the proposal would threaten the viability of any existing supermarket to the extent that it would close. Even with an estimated loss of trading at -26% for Ritchies, Mr Shipp did not say the store will close.
6. There is no economic evidence that suggests existing nearby supermarkets are low trading or especially vulnerable. There is evidence that Chelsea MAC and Aspendale Gardens NAC have low vacancy rates. These factors suggest currently viable supermarkets and activity centres.
7. We consider the proposal will not detract from the advantages that both Chelsea MAC and the Aspendale NAC will continue to offer. This includes the benefits of multi-purpose trips that a 'rounded' activity centre can provide. In the case of Chelsea this includes access to fixed rail transport and a range of community service functions. At the Aspendale Gardens NAC it includes an adjacent school and community centre.
8. In reaching this view, we have had regard to the view that the economic impacts of the proposal on a single nearby business is insufficient to justify rejection. We agree with the findings of the Tribunal in Wittner v Kingston CC[17]that also refer to a High Court decision:

... that it is not sufficient to argue that a retail proposal may have an economic impact on one or more nearby businesses, instead the impact on a broader activity centre is the necessary threshold. This was held by the High Court in the decision of Kentucky Fried Chicken Pty Ltd v Gantidis[18] where Justice Stephen wrote:

...However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration

IS THE LOSS OF THE EXISTING HARDWARE STORE OR THE PROPOSED SUPERMARKET TENANT RELEVANT?

1. AGRA raised concern about the loss of the Mitre10 hardware store and the absence of a similar service close by. Reference was made to community feedback in support of retaining the store.
2. Council says the C2Z is where bulky goods retailing is preferred.
3. Mr Milner's evidence is that in a locality where large undeveloped commercially zoned land does not exist for large floor plate use, concern should be had for the local economy and the reduced prospect of convenient access for the local community to a large hardware store.
4. The Applicant says there is no mechanism to compel the use of land for a particular purpose. The Applicant says in circumstances where the uncertainty association with the current tenancy arrangements and the ease of termination, no weight should be placed on the 'loss' of the Mitre10.
5. During the hearing, we were advised that a contract proposing a 5-year lease with a 6-month exit/vacate clause exercisable by the landlord or the tenant has been agreed upon by Mitre10 and the landowner.
6. We agree with the Applicant. Although the Planning Scheme at times seeks to 'encourage', 'support' or 'facilitate' particular land uses and developments, it does not compel such outcomes. The findings of the Tribunal in Empire State Holding v Kingston CC[19] support this view:

The role of this permit application process is to assess the proposed new development and application for a liquor licence. The planning scheme cannot force the existing business to remain.

1. We acknowledge the proposal will result in the use of C2Z land for purposes other than bulky goods stores. In the absence of a designation of the land for a strategic purpose, such as a preferred location for bulky good retailing, we consider the proposal can be seen as one discretionary use replacing another.
2. AGRA raises concern that the Woolworths occupant of the proposed supermarket will result in a monopoly that could negatively impact competition rather than support it.
3. The planning permit sought is for use and development of a supermarket and shops. The future occupier of these premises is not a matter controlled by the planning permit process.

IS THE PROPOSAL APPROPRIATELY SITED IN RELATION TO THE EXISTING GAMING VENUE?

1. Ritchies submit the co-location of the supermarket with a gaming venue and electronic gaming machines (EGMS) is an outcome strongly discouraged by planning policy. Ritchies say that:
   • There is clear direction in the Scheme to the effect that gaming machines should not be located next to or within retail centres.
   • Pursuant to s60(1)(f) of the Planning and Environment Act 1987 consideration is required of any significant social and economic effects the use or development may have.
   • The detrimental social impacts of co-locating a supermarket next to gaming machines are well known. It encourages convenience gambling.
   • If approved, the situation confronts problem gamblers with the temptation of gambling while they go about the daily, weekly and regular food, grocery and alcohol shopping on the site.
   • This is an evil that should be avoided.
2. Reference is made to the Tribunal decision in Queensberry Hotel Pty Ltd v Minister for Planning and Community Development[20] where the issue of convenience gaming is addressed.
3. It is the evidence of Mr Milner that a fundamental feature of the planning controls applying to gaming venues is that they are either prohibited or strongly discouraged in proximity to shopping complexes and strip shopping centres. He says the tension between retail and gaming policy arises from an objective aimed at harm minimisation where it is recognised that those vulnerable to problem gambling are not assisted if planning facilitates opportunities to gamble directly opposite shops where a large section of the local community is daily or regularly attracted with money to spend on the staples of living. It is his evidence that it is not good planning to place a large full-line shopping centre directly opposite the entrance to a gaming venue.
4. AGRA submit that the location of a supermarket and shops adjacent to the hotel is an inappropriate combination that will have a significant adverse impact on families and individuals from the local region. It is questioned whether the shopping centre is planned to help increase the number of customers to the gaming venue especially in a context where it is difficult to increase the number of EGMS due to policies. AGRA say the intent of the law is to limit the proximity of gaming premises to convenience activities including shops and this should be applied to the proposal.
5. Council raises no concerns about this issue.
6. The Applicant submits the following:
   • The starting point must be an acknowledgement that the land already contains a well-established hotel with gaming together with retail in large hardware and liquor shops.
   • It can be reasonably inferred that the decision of Council not to prohibit gaming machines in all strip shopping standards alongside an extensive list of shopping areas where gaming is prohibited, that each application must be assessed on its merits.
   • There is no prohibition on retail proximate to a gaming venue and no express discouragement in policy for the co-location of retail and gaming venues.
7. The Applicant accepts the relationship between retail and gaming uses is a matter that requires attention to discern whether adverse social impacts associated with exacerbation of risks of problem gambling are likely to arise.
8. The Applicant relies on the evidence of Mr Quick that the venue and location of the Hotel presents a low risk of problem gambling-related harm, despite the potential for increased activity on the site given:
   • residents within 5km radius of the venue and across the municipality have low levels of disadvantage and favourable demographic characteristics that present a low risk of problem gambling;
   • despite access to gaming, machines in the area are not used intensively;
   • the venue is low risk due to low number of machines, low gaming expenditure and wide range of alternative activities; and
   • the addition of a supermarket will not fundamentally change the way residents use the hotel noting there is already high activity on the site generated by the hardware and liquor store.
9. Additional characteristics of the land that the Applicant says support the acceptability of the proposal include:
   • The hotel is a destination rather than convenience venue with vehicle access arrangements supporting this view;
   • The broader parcel of land is large allowing the uses to operate and function separately and at some distance albeit with shared car parking; and
   • The land is accessible by foot but not convenient to nearby residents in a manner that would give rise to a material risk of convenience gambling for residents living proximate to the hotel, noting this accessibility is currently available and has been for decades.

1. The purpose of clause 52.28 is to ensure that gaming machines are situated in appropriate locations, that the social and economic impacts of the location of gaming machines are considered and to prohibit gaming machines in specified shopping complexes and strip shopping centres. A permit is required to install or use a gaming machine. The Schedule to clause 52.28 lists 6 shopping complexes and 40 strip shopping centres in Kingston where the installation or use of a gaming machine is prohibited.
2. The application before us does not propose installation or use of gaming machines and the provisions of clause 52.28 are not triggered.
3. Other than clause 52.28, there are no other specific provisions or policies in the Kingston Planning Scheme relating to gaming.
4. Even in the absence of a permit trigger, the Applicant accepts the relationship between retail and gaming uses is relevant to discern whether adverse social impacts associated with exacerbation of the risks of problem gambling are likely to arise.[21] We proceed on that basis and identify relevant considerations that, at the highest level, call for consideration of the compatibility of use and development:
   • the objectives of planning in Victoria which include to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians ...;[22]
   • ensuring that, amongst other things, there is explicit consideration of social and economic effects when decisions are made about the use and development of land;[23]
   • consideration of any significant social effects and economic effects which the responsible authority considers the use or development may have;[24] and
   • the requirements for integrated decision making where the aims of planning include meeting needs and expectations of society by addressing aspects of economic, environmental and social wellbeing affected by land use and development.[25]
5. Mr Quick described[26] the concept of convenience gambling whereby there is a greater risk of issues associated with problem gambling behaviour if gaming machines are located conveniently to other facilities where people go about their day-to-day activities. He referred to the contention as there being a greater risk of a person visiting a location for one reason (e.g., supermarket shopping) and being attracted to gamble when they had not intended to due to the convenience of the two uses, in turn potentially leading to problem gambling behaviour. He said:

Close proximity of gaming venues to shopping facilities is the most commonly cited situation of convenience gambling. The concern typically arises where the is a pedestrian "ant trail" past the gaming venue or room between points of everyday activity. This concept was the foundation for the introduction of clause 52.28 into Victorian planning schemes which prohibits installation of gaming machines in nominated shopping complexes or shopping strips.[27]

1. It is our view that the location of the proposed shopping centre opposite a gaming venue with direct sightline and within approximately 75 metres does not achieve the spatial separation commonly seen to limit the encouragement for convenience gambling and its potential impact on problem gamblers. Although we accept that the opportunity for convenience gambling is only one of the risk indicators of problem gambling, we think it is a key one controlled by planning that aims to ensure the appropriate location of gaming venues.
2. The design of the proposal in relation to the hotel layout contributes to our concerns. An entrance to the hotel that leads directly into the gaming room is located on the south side of the hotel building. It faces towards the northern entry of the proposed shopping centres over a car parking area. Although, the physical separation is over 70 metres, we consider the direct line of sight between entries to each, the open nature of the separation, the shared use of the car park and the hotel advertising adjacent to the entry, results in a proximity and visibility that does not discourage convenience gambling.
3. Notwithstanding our concerns about the potential for convenience gambling and impacts for problem gamblers created by the location of the supermarket near the gaming venue, we do not find this a reason to reject the proposal. We reach this view based on the lack of a demonstrated significant adverse social impact arising from the proposal; the absence of a permit trigger that connects the proposal with proximity to an existing gaming venue; and the limited guidance provided in the Planning Scheme.
4. Although submitted as unnecessary, the Applicant said a screen of vegetation or some more solid structure to limit the direct views between the two entrances and removal of gaming signage could be undertaken. We consider a solid screen on part of a shared car park adjacent to the southern entry of the hotel and removal of the gaming advertising at the southern hotel entrance will assist in limiting direct visibility and is an appropriate inclusion for a permit condition.

1. Mr Gnanakone says a manual aerial count of the existing parking on site is 626 car spaces but, due to an area east of the Mitre 10 being cordoned off and used for storage, 596 spaces are currently available. It is his evidence that the proposal will provide a total of 633 car spaces and that represents an increase of 37 car spaces (when compared with the 596 existing useable spaces).
2. It is his evidence that the proposal will generate an additional demand for approximately 201 car spaces.[28] He says that with the additional 37 car spaces proposed as part of the redevelopment, a shortfall of 164 car spaces results. In reaching the view that the proposed car parking is adequate, Mr Gnanakone takes into account:
   • A parking credit for the Mitre 10 store of 132 car spaces based on parking rates for bulky goods stores.[29]
   • Parking surveys[30] that showed even if peak periods for uses across the site coincided there is more than sufficient capacity to accommodate the shortfall of 164 car spaces.
   • An additional 37 car spaces are to be provided as part of the proposal.
3. We are not persuaded that the analysis undertaken by Mr Gnankone is comprehensive. It fails to identify the car parking requirements of previous permits issued for the hotel, the Mitre 10 and the bottle shop; it excludes an area of parking that is cordoned off from the assessment; it assumes there is no reduction in car parking in association with the existing use (unclear unless assessed against permit or Planning Scheme requirements); and it assigns a parking credit for the Mitre 10 based on a NSW document rather than the existing permit or Planning Scheme rates.
4. The Applicant, in submissions, provided further information relating to car parking including an analysis of the requirements of the existing permits and aerial photos[31] taken over five consecutive years from 2015 to 2019 showing car parking availability in the car park at various times of the day and week.
5. Although we remain unclear about some components of the car parking assessment, we are satisfied that the carparking proposed will meet the demand generated by the proposal and the hotel.
6. There will be 633 car spaces provided. Allowing for 471 car spaces allocated to the hotel (as specified in the permit for the hotel), 162 car spaces are available for the supermarket, liquor shop and specialty shops. Although this is a reduction from the amount required by the Planning Scheme, we consider the shared nature of the car park that allows for temporal differences in peak demand, the empirical demand for the hotel estimated by Mr Gnanakone and the surveys and aerial photos that demonstrate parking availability at a variety of times, the carparking provided will be adequate for the proposal. In reaching this view we have had regard to the Council raising no concerns about the adequacy or layout of the car parking.

1. One of Council's grounds of refusal referred to inadequate opportunities for landscaping throughout the site. Specific concern was raised about the removal of trees, the inappropriate replacement trees proposed and the limited amount of proposed canopy tree planting. Reference was made to a landscape plan approved in 2007[32] with Council submitting it would be entirely reasonable for the proposal to comply with this plan.
2. The Applicant says the landscape plan prepared by SLS Designs provides for canopy trees and grassed nature strips in the new car park area and additional planting at the northern and western edges of the existing car park. The Applicant says the landscaping will vastly improve the current condition of the existing car parking area and will signal the main entrance to the retail area assisting in way finding and providing a level of amenity for users.
3. An arborist report[33] that assessed 50 existing trees on the site identified 3 trees with high arboricultural value, 19 trees of medium arboricultural value and the remaining 28 trees of low arboricultural value.
4. There is direction in the Planning Scheme[34] to ensure landscaping responds to the site context, enhances the built form, contributes to amenity, safety and attractiveness of the public realm, provides shade and a softening effect to car parking and achieve best practice especially on key sites along main roads. There is also encouragement for development to retain existing vegetation.[35]
5. We consider the proposal has inadequately responded to the landscaping outcomes sought in the Planning Scheme. We say this for the following reasons.
6. The plans that form part of the permit application material did not show any existing trees or nominate any trees to be removed or retained. This approach fails to accord with the direction that seeks a design that responds to context and incorporates a comprehensive site analysis as a starting point for design.
7. The arborist report, prepared in January 2021 well after the design process, identifies high and medium value trees that exist on the land. There is no clear indication in the proposed site plan or the landscape plan as to which if any of these trees are to be retained.
8. The landscape plan before us shows planting in the new area of car park. It does not show existing trees to be retained or removed, include any planting to the road frontages, any planting in the car park between the proposed development and the hotel and fails to acknowledge the extensive planting that was shown on the endorsed landscape plan associated with an earlier permit for development on the land, as referred to by Council.
9. Notwithstanding our criticism of the approach to landscaping, it does not form a reason for refusal of the application. The review site is large and the car parking assessment shows there is potential for a reduced car parking provision. In these circumstances, we consider our concerns can be addressed by permit conditions that required revised plans to show existing trees; a layout that responds to retention of high and medium value trees; tree management requirements; increased opportunities for canopy tree planting throughout the car park; planting to road frontages that reflect the previously endorsed landscape plan; and inclusion of species that are appropriate for the setting.

WILL THE PROPOSAL RESULT IN A NET COMMUNITY BENEFIT?

1. As referred to earlier, the policy relating to out-of-centre development seeks to ensure that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal. The provisions relating to integrated decision making requires consideration of net community benefit. Clause 71.03-2 says:

Society has various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development.

Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. The Planning Scheme also requires a decision maker to decide whether the proposal achieves an acceptable outcome. An acceptable outcome does not mean an ideal outcome. This concept is set out by His Honour Justice Osborne in Knox City Council v Tulcany Pty Ltd:

... The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits.[36]

1. There are matters we consider that are relatively neutral or of modest benefit in an assessment of net community benefit. These include the existence of need for a new supermarket which we have found to be equivocal. We agree with the applicant that the loss of the Mitre 10 store is of limited relevance in our balancing of the benefits of the proposal. There is no planning mechanism that compels an existing use to continue.
2. The matters we consider sit on the negative side of an assessment of net community benefit include:
   • The poor alignment of the proposal with the Planning Scheme policy relating to activity centres.
   • The absence of new residential areas and the lack of any significant expected population growth expected in the catchment. This scenario does not accord with the business strategy that supports new convenience shopping facilities to provide for the needs of the local population in new residential areas.
   • Access to the site that relies heavily on private vehicle access and the limited range of services and facilities proposed do not support multi-purpose trips. This is contrary to policy that seeks to reduce private vehicle trips by integrating land use and public transport.
   • Although in a commercial node, the nearby uses (other than the hotel) are not easily walkable to other commercial uses due to the two wide and busy arterial roads that act as a barrier to pedestrian connectivity. This limits the effective aggregation of commercial facilities sought in strategies relating to business.
   • The location of the proposed shopping centre opposite a gaming venue fails to provide the spatial separation that 'first principles' planning would seek in order to limit the encouragement for convenience gambling.
3. In terms of positive aspects, we find the proposal:
   • Accords with the purpose of the C2Z that encourages use of commercial areas for retail, noting a supermarket of 1800 square metres and shops up to 500 square metres can establish without a permit.
   • Will not undermine the ongoing role and function of existing activity centres in the hierarchy, including Aspendale Gardens, based on the economic evidence.
   • Will offer increased choice in shopping opportunity in a location on two main roads, conveniently accessed by car, and to a limited degree by walking, for residents of the area.
   • Replaces an existing retail use on a site that is already operating as a commercial node.
   • Will generate employment opportunities.
   • Provides appropriately for car parking and will offer an accessible at-grade car park that will be convenient for shoppers.
   • Acceptably accommodates vehicle access, loading and waste removal and raises no concerns about accommodation of traffic on the nearby road network.
   • Results in no adverse amenity or built form impacts for nearby residential or sensitive uses.
   • Repurposes an existing building and uses existing parking infrastructure in a sustainable manner and offers an opportunity for enhanced landscaping and pedestrian access around the site (via proposed permit conditions).
4. On balance, having regard to all the matters we are required to consider, we find the proposal is acceptable and will result in a net community benefit. We may have reached a different view if it had been demonstrated that the proposal would undermine the continued viability of existing activity centres or there was support in the Planning Scheme for locational separation of a new retail use from an existing gaming venue.

1. Council circulated draft permit conditions with an updated version to include correct plan references and these were discussed at the hearing. We have generally adopted these conditions subject having regard to those discussions and to alterations that reflect our findings.

1. For the reasons set out above, we set aside the decision of the Council and direct the grant of a permit subject to conditions.

Use and development of the subject land for a supermarket and retail premises in the Commercial 2 Zone and creation of a carriageway easement pursuant to clause 52.02 in accordance with the endorsed plans and reduction of the car parking requirements of clause 52.06.

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 substantially in accordance with the numbers TP01-TP10 inclusive comprising of: TP01 (undated); 'revision a' plans TP02 dated 20/11/2019, TP03 dated 06/11/2019, TP09 and TP10 dated 20/11/2019; 'revision b' plans TP04 dated 07/02/2020, TP05 dated 20/11/2019; TP06 (undated); 'revision c' plans TP07 and TP08 dated 21/02/2020; 06/11/2019 (TP03), 07/02/2020 (TP04) and 21/02/2020 (TP07 and TP08) all submitted to Council on 5 March 2020 and a landscape plan prepared by 'SLS Designs Pty Ltd' drawing no. SD01 dated 06/12/2019 submitted to Council on 19 December 2019 (Landscape Plan), but modified to show:

(a) The provision of a solid screen adjacent to the southern entry to the existing hotel on the land in a location and of a size and material that will limit direct views between the northern entry of the supermarket and the southern hotel entry.

(b) Removal of signage relating to gaming activities that is located on the south side of the existing hotel on the land.

(c) Amendments to the Landscape Plan to show the following:

1. substitution of the Hymenosporum flavum (Native Frangipani) for Eucalyptus camaldulensis (River Red Gum);
2. substitution of the Corymbia ficifolia 'Wildfire' and Tristaniopsis laurina 'Luscious' for Eucalyptus ovata (Swamp Gum);
3. substitution of the Eucalyptus mannifera 'Little Spotty' for Eucalyptus radiata (Narrow-leaved Peppermint);
4. planting that, as practical, reflects the landscape plan endorsed on 7 June 2007 pursuant to permit number KP296/2006
5. an additional twenty (20) indigenous canopy trees planted in the carparking area between the retail development and the existing hotel;
6. substitution of any remaining non-indigenous species for indigenous plants;
7. a survey, including, botanical names of all existing trees on the site including Tree Protection Zones calculated in accordance with AS4970-2009;
8. identification of existing trees to be retained and those to be removed. The location, height, canopy width and botanical names of all trees to be retained and' unless otherwise approved by the responsible authority in writing, the retained trees are to include all trees, except trees 30, 43 and 44, as identified in the Arboricultural Report prepared by Kylie May, consultant arborist dated January 2021.
9. a survey including botanical names, of all existing trees on neighbouring properties where the Tree Protection Zones of such trees calculated in accordance with AS4970-2009 fall partially within the subject land;
10. all trees provided at a minimum of 2 metres in height at time of planting, medium to large shrubs to be provided at a minimum pot size of 200mm;
11. a sectional plan demonstrating sufficient soil volume is available for the canopy trees planted to reach their expected mature size;
12. notes regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements;
13. tree protection measures accurately drawn to scale and labelled as per the endorsed Tree Management Plan required by Condition 4.

(e) the provision of a creation of easement plan prepared by a land surveyor showing the proposed carriageway easement in favour of City of Kingston.

(f) any changes required by a Sustainable Management Plan as required under condition 7.

(g) a full colour palette, finishes and building materials schedule for all external elevations, outdoor paving and accessways of the development with the surface material of all driveways/accessways and car parking spaces nominated in all-weather coloured concrete sealcoat, or similar.

1. The use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. All trees shown to be retained on the endorsed landscape plan required by Condition 1 are to be retained to the satisfaction of the Responsible Authority.
3. Concurrent with the endorsement of plans, a Tree Management Plan prepared by a suitably qualified arborist in accordance with AS4970-2009, must be submitted to and be endorsed by the Responsible Authority and must incorporate:

1. any non-destructive root investigation undertaken to determine the location and distribution of roots of trees nominated on the Tree Protection Plan;
2. proposed footings and construction methods for any buildings or structures within the Tree Protection Zone nominated on the Tree Protection Plan;
3. how excavation impacts, including soil level changes and the works required for the car parking area will be managed;
4. how the canopy of trees nominated on the Tree Protection Plan will be protected.;
5. any other measures required to demonstrate the successful ongoing retention and viability post-construction of any trees nominated on the Tree Protection Plan.

(b) A Tree Protection Plan (scale drawing) which must provide details of:

1. the Tree Protection Zone and Structural Root Zone, calculated in accordance with AS4970-2009, for all trees to be retained on the site and for all trees on neighbouring properties where the Tree Protection Zone falls partially within the subject land;
2. tree protection fencing, or ground protection where required, provided in accordance with AS4970-2009;
3. stages of development at which inspections are required to ensure tree protection measures are adhered to must be specified;
4. appropriate signage on any tree protection fencing prohibiting access, excavation, changes in soil levels, or any storage within the Tree Protection Zone in accordance with AS4970-2009 unless with the prior written consent and under the direct supervision of the consulting arborist;
5. maintenance of the area(s) within the Tree Protection Zone in accordance with AS4970-2009;
6. any pruning to be undertaken being in accordance with AS4373-2007;
7. a notation to refer to the Tree Management Plan.

1. All protection measures identified in the endorsed Tree Management Plan must be implemented, and development works undertaken on the subject land must be undertaken in accordance with the Tree Management Plan, to the satisfaction of the Responsible Authority.
2. Prior to the commencement of works, the name and contact details of the project arborist responsible for implementing the Tree Management Plan must be submitted to the Responsible Authority.
3. Concurrent with the endorsement of the plans required pursuant to Condition 1 of this permit, the provision of a Sustainable Management Plan (SMP) to be prepared by a suitably qualified professional must be submitted to and approved by the Responsible Authority.
4. All works must be undertaken in accordance with the endorsed SMP to the satisfaction of the Responsible Authority. No alterations to the SMP may occur without the prior written consent of the Responsible Authority.
5. The supermarket may operate only between the hours of:
   • Monday to Sunday - 7:00 am to 12:00am (Midnight)

Or otherwise as approved by the Responsible Authority in writing.

1. The bottle shop may operate only between the hours of:
   • Monday to Saturday - 9:00 am to 11:00pm
   • Sunday - 10:00am to 11:00pm

Or otherwise as approved by the Responsible Authority in writing.

1. All other retail premises may operate only between the hours of:
   • Monday to Sunday -7:00 am to 9:00pm

Or otherwise as approved by the Responsible Authority in writing.

1. Prior to the commencement of the use, the provision of a Waste Management Plan to be prepared by a suitably qualified professional must be submitted to and approved by the Responsible Authority.
2. Prior to the commencement of any buildings and works on the subject land, a Construction Management Plan (CMP), to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. The CMP must be prepared in accordance with the City of Kingston Construction Management Policy and Construction Management Guidelines. The CMP must specify and deal with, but is not limited to, the following elements:

When approved, the plan will be endorsed and will then form part of the permit and shall thereafter be complied with during the undertaking of all works.

1. Unless with prior written consent of the Responsible Authority, before the development commences the following Integrated Stormwater Management (drainage) documents must be prepared, by a suitably qualified person, to the satisfaction of the Responsible Authority:

(a) Prior to submitting detailed engineering plans, a comprehensive stormwater management (drainage) strategy for the site must be prepared that addresses the requirements specified within Council's "Civil Design requirements for Developers - Part A: Integrated Stormwater Management".

(b) The stormwater management (drainage) strategy must include a report with MUSIC modelling results demonstrating water sensitive urban design treatments that achieve Victorian best practice objectives. These may include the use of an infiltration or bio-retention system, rainwater tanks connected for reuse, or other treatments to the satisfaction of the Responsible Authority.

(c) The water sensitive urban design treatments as per conditions 15 a) and b) above must be implemented on-site, unless an alternative agreement for stormwater quality in-lieu contribution is reached with the Responsible Authority.

(d) Detailed Stormwater Management (drainage) Plan(s) must be prepared, with supporting computations, showing the stormwater (drainage) works to the nominated point of discharge in line with approved Stormwater Management (drainage) Strategy Report. The plan(s) must show all details of the proposed stormwater works including all existing and proposed features that may have an impact on the stormwater (drainage) works, including landscaping details.

1. Stormwater (drainage) works must be implemented in accordance with the approved stormwater management (drainage) plan and to the satisfaction of the Responsible Authority and must include the following:

(a) All stormwater (drainage) works must be provided onsite so as to prevent overflows onto adjacent properties.

(b) The implementation of stormwater (drainage) detention system which restricts stormwater discharge to the maximum allowable flowrate calculated as per Council's "Civil Design requirements for Developers - Part A: Integrated Stormwater Management".

(c) All stormwater (drainage) works must be maintained to the satisfaction of the Responsible authority.

1. Any relocation of pits/power poles or other services affected by this development must be relocated to the satisfaction of the relevant servicing authority and the Responsible Authority, at the cost of the owner/developer.
2. The shared user path is to be constructed to Council standards to the existing internal driveway/proposed pedestrian crossing with carriageway easement applied to the satisfaction of the Responsible Authority.
3. Property boundary and footpath levels must not be altered without the prior written consent of the Responsible Authority.
4. The replacement of all footpaths, including offsets, must be constructed to the satisfaction of the Responsible Authority.
5. All reinstatements and vehicle crossings must be constructed to the satisfaction of the Responsible Authority.
6. All redundant vehicle crossings must be removed (including redundant portions of vehicle crossings) to the satisfaction of the Responsible Authority.
7. Before occupation of the development hereby permitted, areas set aside for parking vehicles, access lanes and paths as shown on the endorsed plans must be:

(a) Constructed to the satisfaction of the Responsible Authority.

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

(c) Surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority.

(d) Drained to the satisfaction of the Responsible Authority.

(e) Line-marked to indicate each car space, all access lanes and, if necessary, the direction in which vehicles are to travel to the satisfaction of the Responsible Authority.

(f) In accordance with any Council adopted guidelines for the construction of car parks.

Parking areas and access lanes must be kept available for these purposes at all times and maintained to the satisfaction of the Responsible Authority.

1. In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.
2. The car parking provided on the land must always be made available for the use by persons on or visiting the subject land to the satisfaction of the Responsible Authority and no measures restricting access by such persons to the car park may be taken without the prior written consent of the Responsible Authority.
3. Concrete kerbs or other barriers must be provided to the satisfaction of the Responsible Authority to prevent direct vehicle access to an adjoining road other than by a vehicle crossing.
4. The amenity of the area must not be detrimentally affected by the development and use of the subject land, through the:

(a) Transport of materials, goods or commodities to or from the land.

(b) Appearance of any building, works or materials.

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

1. The development and / or use of the subject land shall not cause nuisance or be detrimental to the amenity of the neighbourhood by the emission of noise. In this regard any nuisance shall be assessed in accordance with the Australian Standards AS1055 and AS2107 relating to the measurement of Environmental Noise and recommended sound levels.
2. The loading and unloading of goods to and from vehicles must only be carried out on the land.
3. No goods or packaging materials shall be stored or left exposed outside the building so as to be visible to the public from a road or other public place.
4. All external surfaces of the building elevations must be finished in accordance with the schedule on the endorsed plans and maintained in good condition to the Responsible Authority's satisfaction.
5. Before commencement of the usee hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority. The landscaping must then be maintained to the satisfaction of the Responsible Authority including that any dead, diseased or damaged plants are to be replaced.
6. Prior to the commencement of the use, all buildings and works and the conditions of this permit must be complied with, unless with the further prior written consent of the Responsible Authority.
7. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
8. In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • The development is not started within two (2) years from date of this permit.
   • The development is not completed within four (4) years from the date of this permit.
   • The use does not commence within two (2) years from completion of the development.
   • The use is discontinued for a period of two (2) years.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

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

[3] Applicant opening submission - para 3(b).

[5] Paragraph 43 of Mr William's evidence.

[6] For example, Wittner Pty Ltd v Kingston CC [2014] VCAT 789 and Vicinity Centres Pty Ltd v Mornington Peninsula SC [2017] VCAT 1802.

[7] Including the Reformed Zones Ministerial Advisory Committee Report 23 February 2013; Inquiry Report on the Economic Structure and Performance of the Australian Retail Industry, Productivity Commission 4 November 2011; Inquiry into Victoria's Regulatory Framework, Victorian Competition and Efficiency Commission, March 2012.

[8] Applicant Further Submission - para 25.

[12] At clauses 11, 18.02-2R, 18.02-2S, 21.02-1 and 21.09-1.

[13] Prepared by Mr Ganly as part of the permit application material dated 6 February 2020.

[14] The four economic witnesses called in this proceeding were directed by VCAT (Order dated 25 September 2020) to prepare a joint statement which identified points of agreement and disagreement and associated reasons for any disagreement.

[15] UDIA May 2020, Helping Australia Bounce Back

[16] Peer Review of Chelsea Heights Need and Economic Impact Assessment (Deep End Services 6 February 2020) prepared for Ritchies Stores Pty Ltd dated 15 April 2020.

[17] [2014] VCAT 789 at paragraph 16

[18] [1979] HCA 20; (1979) 140 CLR 675 at page 687

[19] [2017] VCAT 506 at paragraph 41.

[20] [2013] VCAT 444 at paragraph 69.

[21] Paragraphs 127 of Applicant's submission.

[22] At s 4(1)(c) of the Planning and Environment Act 1987.

[23] At s 4(2)(d) of the Planning and Environment Act 1987.

[24] At s 60(1)(f) of the Planning and Environment Act 1987.

[26] At paragraph 76 of Mr Quick's evidence dated 5 November 2020.

[27] At paragraph 78 of Mr Quick's evidence dated 5 November 2020.

[28] Based on the supermarket and shop components only since there is no increase in the bottle shop floor space.

[29] Sourced from the Guide to Traffic Generating Developments by the New South Wales Roads and Traffic Authority dated October 2002.

[30] Taken Friday 30 November 2018 between 11am and 8pm and Saturday 1 December 2018 between 11am and 8pm (pre-Covid-19 restrictions).

[32] Endorsed as part of planning permit K296/2006 issued 18 August 2006 for hotel alterations and additions.

[33] Arboricultural Report 1-23 Wells Road, Chelsea Heights prepared by Kylie May Consultant Arborist of John Patrick Landscape Architects Pty Ltd dated January 2021

[34] Including at clauses 15.01-1S, 15.01-2S, 21.06, 34.02-7, 52.06-9 and 52.06-10.

[36] [2004] VSC 375 part of 13(e)