Medium Neutral Citation [2002] VCAT 189

The Responsible Authority's decision to refuse the grant of a permit with respect to permit application no. P221/01 is set aside. A permit is granted for the use and development of land at 570 Hall Road, Cranbourne West for the purpose of a service station (incorporating convenience shop, car wash and car parking), advertising signs and access to a road in a Road zone Category 1 in accordance with the endorsed plans. The permit must contain the following conditions:

1. The use and development must not be commenced until three (3) copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions. The plans must be submitted within two years of the date of this permit. When approved, the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the submitted plans but modified to show to the satisfaction of the Responsible Authority:

(a) Modifications to the design of the hall Road access point so that it allows for "exit" only.

(b) Reduction in the gross floor area of the convenience shop area so that it does not exceed 240 square metres.

(c) The size of the main business sign along the Western Port Highway to have an advertisement area of less than 10 square metres.

(d) Access arrangements into the site in accordance with the requirements set out in conditions 31 and 32.

(e) All materials, colours, building cladding and site treatment.

(c) Existing and proposed levels, vehicular crossovers, drainage, existing services, driveway and/or car park construction etc.

(d) A landscaping plan, indicating the area or areas set aside for landscaping and planting, any vegetation to be retained and include a schedule of all proposed trees, shrubs and ground cover and details of garden edging and mulching.

(e) The provision of an on-site stormwater retention system if this is required by the Responsible Authority.

2. The buildings must not be occupied until the following works have been completed to the satisfaction of the Responsible Authority:

(a) The premises are connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority.

(b) The premises are connected to reticulated water supply, drainage, electricity and to an on-site waste water treatment and disposal facility to the requirements of the relevant servicing authority.

(c) The areas set aside for car parking and access lanes as shown on the endorsed plan have been:

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

, Linemarked to indicate each car space and all access lanes.

(d) All landscaping works have been completed and subsequently maintained generally in accordance with the endorsed plan.

3. Vehicles must not enter the site via the Hall Road access point.

4. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan must not be altered or modified without the written consent of the Responsible Authority.

5. The development must be fully provided with services including roads, reticulated water, sewerage, gas, drainage and underground electricity.

6. The building must be modified to satisfy Australian Standard Design Rules for Disabled Persons (No. 1428).

7. Water must not be discharged from the site other than by means of an underground pipe drain to an approved discharge point to the satisfaction of the Responsible Authority.

8. Access to the site, including all vehicular crossovers, must be provided and constructed to the satisfaction of the Responsible Authority and VicRoads.

9. Directional signs not greater than 0.5m2 in area must be erected at the access points to indicate clearly the area set aside for parking and the direction of traffic movement.

10. The driveways serving the car park must be left open at all times during business hours, and must not be used for any purpose other than providing vehicular access between the street and the parking spaces and other site areas.

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

12. Car parking spaces for the sole use of vehicles suitably identified as those of disabled persons must be provided to the satisfaction of the Responsible Authority.

13. The area set aside for car parking, as shown on the endorsed plan, must be used for the parking of vehicles and for no other purpose.

14. The site must be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance, to the satisfaction of the Responsible Authority.

15. The use and development must comply with the Code of Practice, "The Control of Water Effluent from Service Stations", AIP CP1-1992, Australian Institute of Petroleum Ltd in relation to the design, construction and operation of the petrol station.

16. The filling of underground tanks, the fuelling and servicing of vehicles, the loading and unloading of goods and the standing of vehicles whilst awaiting service or collection must be carried out entirely within the site.

17. Trailers must not be parked or displayed on areas set aside for landscaping.

18. Prior to the issue of a Certificate of Occupancy, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system.

19. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

20. Measures shall be taken to prevent fuel spillage to the stormwater system during bulk transfer operations, or an alternative approved by Melbourne Water. A discreetly drained area should be large enough to contain the gantry of the delivery tanker to ensure all fuel spills occurring during transfer operations drain to the Triple Interceptor Trap.

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

22. Prior to construction activity commencing, a wastewater management plan must be submitted for approval by EPA. This plan should cover measures to:- collect and remove or recycle waste petroleum products, minimise sediment runoff, control litter and manage sewage, sullage and car wash waste. It should also incorporate the following principles and elements:

a) No wastewater should be discharged off site or disposed of to land without appropriate treatment;

b) All wastewater generated at the premises must be treated and disposed in accordance with the Australian Institute of Petroleum Code of Practice "The Control Of Water Effluents from Service Stations " (AIP CP1, latest edition), subject to condition 5(a) above.

23. Ensure actions are taken to prevent the discharge of dust and sediment during the construction and post construction activities at the premises. In addition construction activities must be in accordance with the following EPA guidelines and policies:

* Environmental Guidelines for Major Construction Sites (EPA publication No 480, December 1995)

* Construction Techniques for Sediment Pollution Control (EPA publication No 275, May 1991)

24. Noise emitted from the premises must not exceed the requirements set out in the Interim Guidelines for Control of Noise from Industry in Country Victoria.

25. Petroleum storage tanks must be installed according to the most recent edition of the "Code of Practice for the Design, Installation and Operation of Underground Petroleum Storage Systems (UPSS)" published by the Australian Institute of Petroleum Ltd and comply with relevant Australian Standards.

26. Litter screening devices should be installed on all stormwater drainage lines or channels to prevent litter from entering stormwater drains. The property management should be responsible for the regular emptying of baskets and traps.

27. Adequate signs and provision of litter bins and enclosing garbage storage areas to prevent the spread of litter to surrounding areas.

28. All sewerage and sullage from the service station (toilets and sink wastes) generated at the premises must be treated and disposed in accordance with EPA Publication451 "Code of Practice -Septic Tanks".

a) Cut-off drains and/or bunds must be installed to ensure all washing effluent, detergent and detergent solutions will be retained within the vehicle wash unit at all times;

b) Pumps, drains and piping must be installed to ensure that all effluent from the vehicle wash will be directed to a treatment plant and to an approved waste water irrigation system. This must comply with the 'Guidelines for Waste Water Irrigation' (EPA Publication 168) and 'Guidelines for Wastewater Reuse' (EPA Publication 464). Winter storage of waste water may be necessary;

c) Any pump installed to direct effluent must be level controlled to ensure that the effluent sump (or collection vessel) cannot overflow; and

d) An interlock system must be installed to prevent the carwash operating when the effluent sump (or collection vessel) is full.

30. Vehicles may only be washed within the carwash.

31. A left turn deceleration lane shall be constructed to the entry access on Western Port Highway to current road design standards, to the satisfaction of VicRoads and the Responsible Authority.

32. Detailed construction plans for the access arrangements shall be submitted to VicRoads and the Responsible Authority for approval. When the plans are approved, an additional copy shall be submitted to VicRoads for surveillance purposes.

33. Prior to gaining approval from VicRoads to undertake works on the highway the developer shall:

* Provide payment to VicRoads of $550 (includes GST) or 1% of the estimated cost of roadworks, whichever is greater, to cover the cost of surveillance.

* Provide a bank guarantee, without a termination date, to VicRoads for the estimated cost of works. The bank guarantee will be held by VicRoads for a three (3) month period after works have been completed to VicRoads satisfaction, as determined by VicRoads Surveillance Officer.

* Provide evidence that the Contractor has a public liability insurance policy for at least $10 million that will be effective for the duration of the works.

* Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor.

* Submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works. The Traffic Management Plan shall meet the requirements of the VicRoads Worksite Traffic Management (Roadworks Signing) Code of Practice which incorporates AS 1742.3 - 1996. Traffic management/control shall be carried out by suitably trained personnel.

, the use and development is not commenced within two years of the date of this permit; or,

, the development is not completed within two years from the date of commencement.

The Responsible Authority may extend the periods referred to, if a request is made in writing before the permit expires or within three months afterwards.

Mr C Tate, Town Planner, appeared on behalf of the Responsible Authority.

Mr P Barnes, planning consultant, appeared on behalf of the applicant.

1. This is an application under Section 77 of the Planning and Environment Act 1987 which seeks the review of the Responsible Authority's decision to refuse the grant of a permit with respect to permit application no. P221/01. The permit application seeks permission for the use and development of land at 570 Hall Road, Cranbourne West for the purpose of a service station which incorporates a "convenience shop" and a manual car wash. Permission is also sought for advertising signs and new access to a road in a Road zone Category 1.

2. The permit application was lodged with the Responsible Authority on 9 April 2001. The Responsible Authority required notice of the application to be given and in response no objections were received.

3. The Responsible Authority also referred the permit application to VicRoads, Melbourne Water and the Environment Protection Authority. All three of these authorities advised that they had no objection to the proposal subject to the inclusion of conditions on any permit granted. Two conditions required by VicRoads were the subject of submissions and evidence. These were:

1. the northernmost access to the development from the Western Port Highway (ie: closest to Hall Road) shall be deleted;

2. a left turn deceleration lane shall be constructed on the Western Port Highway, 3.5 metres wide and 162 metres long from the ultimate southern boundary of Hall Road to the satisfaction of VicRoads;

4. Other conditions required by referral authorities were generally acceptable to the applicant.

5. The Responsible Authority subsequently made its decision to refuse the grant of a permit on 23 October 2001. The grounds of refusal are:

1. The proposal does no comply with the State Planning Policy Framework.

2. The proposal does not comply with the Local Planning Policy Framework, particularly:

3. The proposal does not comply with the objectives of the Rural Zone.

4. The proposal does not represent orderly and proper planning.

6. The application for review was filed on the 31 October 2001. The grounds of the application are:

1. The proposal does comply with the State Planning Policy Framework and will make a positive contribution to the identified State objectives and policy criteria.

2. The proposal complies with the Local Planning Policy Framework including the Municipal Strategic Statement, Activity Centres Policy and Future Urban Areas Policy. The proposal will meet these criteria to a high level.

3. The proposal complies with the objectives of the Rural Zone and is consistent with the purpose of this zone.

4. The proposal represents orderly and proper planning and will make a positive contribution to the area with no implications in relation to future development.

7. At the hearing, Mr Tate and Mr Barnes tabled and spoke to written submissions to which they added further oral argument. Mr Aspinall made oral submissions. In addition the parties presented various plans, photographs of the land and surrounding area (including some very useful aerial photographs) and extracts from other documents relevant to the consideration of the proposal.

8. Mr Barnes called evidence from Mr Henry Turnbull, a traffic engineer, and Mr Peter Anderson, a director of the applicant, to give evidence. Whilst Mr Anderson's evidence was to some extent of an expert nature and a report had not been filed and served prior to the hearing, after hearing him, Mr Tate and Mr Aspinall did not request an adjournment of the matter. Both witnesses were available for cross-examination.

9. All submissions, reports and other documents tendered have been considered and are retained on the Tribunal's file.

10. At the commencement of the hearing, Mr Barnes applied to amend the permit application by substituting an amended plan (TP 01 dated December 2001 by Barnes Planning) for the corresponding plan (SK1 dated May 2001 drawn by Team Design) lodged as part of the permit application documentation. The other parties did not oppose this request. I allowed the amendment as requested pursuant to cl. 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

11. Contextually, the subject site is located about 45 kilometres south-east of central Melbourne on the Western Port Highway. The highway links Melbourne and the Mornington Peninsula and acts as the municipal boundary between the Cities of Casey and Frankston.

12. The site is part of a rural lot of about 40 hectares located on the south-east corner of Western Port Highway (Dandenong Hasting Road) and Hall Road, Cranbourne West. The site comprises a parcel of about 2.33 hectares located towards the Western Port Highway/Hall Road intersection which is presently used for grazing. The site has an irregular shape with a frontage of 192.29 metres to the highway and 161.88 metres to Hall Road. It is devoid of any significant vegetation and is used for grazing. Land surrounding the development site is generally used for rural purposes, and such the immediate area presents a somewhat "open" rural landscape.

13. The Western Port Highway is divided with two carriageways in each direction. Hall Road provides for a single carriageway in either direction. A large roundabout exists at the intersection of these two roads.

14. Although earmarked for future urban development, Mr Tate advised that a development plan has not been approved for the area within which the subject land lies and that the Responsible Authority envisages that development of the area for urban purposes would be some ten years away. The nearest planned activity centre [Cranbourne West Activity Centre] is located about 2 kilometres to the west on Halls Road.

15. Mr Tate advised that the Responsible Authority has issued a number of permits for service station developments on the east side of the Western Port Highway, to the north of the subject land. Although these permits are still valid (ie: they have not yet expired) none of these service station developments have been commenced.

16. I was also advised that the property to the west, on the opposite corner of the intersection, has been the subject of an application before the Tribunal for a service centre incorporating a convenience shop, convenience restaurant and "country trade supplies" offering for sale fresh produce and craft materials. (Application for Review no. 2001/18739 Hendriksen v Frankston City Council). It would seem that although the Tribunal found that, in principle, it was disposed to grant a permit for the use of the land for a service centre, the proposal was eventually rejected because of the applicant's failure to amend the proposal in accordance with the Tribunal's directions.

17. In addition, I understand that the Responsible Authority has also refused an application for a service station on land located on the corner of the Dandenong-Hastings Road and Cranbourne - Frankston Road which is about 3 km to the south of the subject land. The review of this decision is the subject of a proceeding before another division of the Tribunal (Application for Review No. P50852/2001), however, no decision has yet been made.

18. Mr Barnes set out the details of the proposal as follows:

"The proposed development of the site is for a highway service centre comprising a service station, convenience shop, car wash and associated car parking. This development is to take place on the southern portion of the site, the northern part of the site being retained for possible future commercial use(s) or for other suitable purposes, subject to planning approval. The service centre has been deliberately set towards the southern part of the site in order to enable good motorist access to the facilities.

The highway service centre development will comprise:

* Four undercover bays containing bowsers for the sale of fuel and lubricants;

* A large undercover link (canopy) connecting the fuel bays to the convenience shop;

* A convenience shop selling motor vehicle accessories and parts, food, drink and other convenience goods;

* A car wash with four bays for washing cars, two industrial vacuums and a small service/store room.

Car parking will comprise 16 delineated car spaces and considerable opportunity for informal (non-delineated) car parking around the car wash and service station.

* A 12 metre wide crossover located on the western side of the subject site. The entrance is off Dandenong - Hastings Road (Western Port Highway) approximately 167 metres south of the intersection.

* A 6.5 metre wide crossover (entry and exit) located on the north-east corner of the subject site. This secondary entrance is located off Hall Road approximately 142.5 metres east of the intersection.

* A 12 metre wide crossover located on the south-west corner of the subject site. The exit is off Dandenong - Hastings Road (Western Port Highway) approximately 216 metres south of the intersection.

* A 6.5 metre wide crossover (entry and exit) located on the north-east corner of the subject site. The exit is off Hall Road approximately 142.5 metres east of the intersection.

The area around the car wash and service station will be an appropriate hard surface allowing traffic to utilize all facilities, park and turn easily."

19. The proposed signs take the form of an 8 metre high internally business sign to be located adjacent to the Western Port Highway about 32 metres from the south-west corner of the site and other smaller signs mounted at the entry to the car wash and convenience shop. I note that the total advertisement area of the main business sign is 19.4 square metres. Such a sign also falls within the definition of a panel sign given that it has an advertisement area exceeding 10 square metres.

20. Under the Casey Planning Scheme [CPS], the subject land is located within the "Rural Zone", the provisions for which are found at clause 35.01. The purpose of the zone is:

To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at the source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision

21. A service station is a Section 2 or "permit required" use within the land use table for the zone at clause 35.01-1 subject to a condition that the site must not have direct access to a rural freeway. It was common ground that this condition is met. A permit is also required under clause 35.01-3 for buildings and works associated with a Section 2 use.

22. Permission is also required under clause 52.05 for the proposed advertising signs with the provisions of category 3 being relevant to land in the Rural zone. Although there is discretion to grant permission for an internally illuminated business sign on the land, a panel sign is prohibited within the zone.

23. Given that the Western Port Highway is located within a Road zone Category 1, permission is also required under clause 52.29 to create access from the site to the highway with VicRoads specified as a referral authority. Other relevant provisions are those at clauses 52.06 (car parking), 52.12 (service station) and decision guidelines at clause 65.

24. The purpose of the zone and the various decision guidelines require that consideration be given to such matters as the State and Local Planning Policy Frameworks, the purpose of the zone, orderly planning and amenity.

25. An extensive list of strategies and policies which are in some way relevant to the consideration of the proposal. These were set out in some detail in the submissions presented by Mr Tate (pages 8-11) and Mr Barnes (pages 11-15). I do not propose to set the details of these policies out in these written reasons as to do so would simply lengthen them unnecessarily. Suffice to say that I agree with Mr Tate and Mr Barnes as to the policies that are relevant and I will refer to them as appropriate in these reasons.

26. After having considered the submissions and evidence presented by the parties, the relevant matters under the planning scheme and the details of the proposal, it seems to me that the key issues in this matter are:

* whether the proposed use and development of the land for a service station and associated facilities bring about an acceptable planning outcome having regard the purpose of the Rural zone and the planning scheme's policies and strategies, and

* whether the proposed facility will undermine the future development and economic viability of the Cranbourne West Activity Centre which has been planned in a locality to the east of the subject land.

27. Before turning specifically to these two key issues, it is appropriate that, in the first instance, I make a number of observations.

28. First, after having heard Mr Tate's submissions, it seems to me that the Responsible Authority essentially has no real concern about the actual design of the proposed facility. In particular, there were no concerns raised about the site layout (ie: of the various facilities to be provided), the appearance of the buildings and proposals with respect to landscaping.

29. Second, it is also apparent that the Responsible Authority does not have any real concern about matters relating to the overall number of car parking spaces to be provided on the site and the ability for vehicles to manoeuvre and circulate within the site.

30. Third, whilst there were concerns expressed by both the Responsible Authority and VicRoads about the access arrangements into the site, it became apparent during the course of the hearing that these concerns can be overcome with appropriate permit conditions. One concern related to the sight distance available at the proposed Hall Road entry point. However, the applicant is prepared to accept a condition which limits access from this particular point to "exit" only thus eliminating concerns associated with vehicles movements into the site from Hall Road. In relation to concerns about access from the Western Port Highway, after hearing from both Mr Turnbull and Mr Aspinall, it seems to me that opportunity exists to provide a suitable deceleration lane leading from the highway into the site. Ms Aspinall agreed that it would be possible. Mr Aspinall said that VicRoads had forwarded a set of revised conditions to the Responsible Authority requiring, amongst other things, the provision of a deceleration lane to VicRoads satisfaction. Based on the evidence and submissions, I am satisfied that appropriate access into the site can be provided.

31. Fourth, whilst I note that the Responsible Authority has concerns about the appropriateness of the proposed advertising signs, this concern is based around the notion that the proposed use and development as a whole is inappropriate. There were no specific criticisms of the proposed signs themselves. Indeed, Mr Tate conceded that "given the proposed use and future development of the land, the sign is considered to have some merit." Although the signs proposed are of a suitable type for the proposed use of the land, it will be necessary to reduce the size of the main business sign to less than 10 square metres so that it does not fall within the definition of a panel sign. This can be achieved by permit condition.

32. I now turn to the two key issues in this matter.

33. The first of these is whether the proposed use is one which is acceptable having regard to the purpose of the Rural zone. On this point the Responsible Authority's main argument was that the proposed use is not one which is consistent with the purpose of the zone and as such, it is premature to allow the land to be developed for what is in reality an urban purpose.

34. It is perhaps fair to say that a service centre is not a use which responds directly to the purpose of the Rural zone, however it is not uncommon to find service centres of the type proposed along rural highways and freeways and on land zoned for rural purposes. Although they are not a rural use per se, it is generally acknowledged and accepted that they perform an important role in providing a facility for highway travellers and in this regard, the provision of appropriate facilities accords with the general thrust of the policy at Clause 18.01 of the SPPF which calls for new uses which "enhance the service, safety and amenity" of existing transport routes. I acknowledge that the distance between central Melbourne and Hastings is not substantial in terms of highway travel times, but none the less, there is some distance between the nearest highway facility and the subject land.

35. It is also relevant to observe that it was not put to me by the Responsible Authority that there is no need for a service centre of this type along the highway in this locality per se. Rather, the Responsible Authority considers that it is inappropriate to grant a permit given that approvals have already been issued for similar facilities on three other sites located further north along the highway. Whilst permits have been issued for other facilities, the reality is that, as it stands at present, these other facilities do not exist. Permission may have been granted for other service centres, however based on the submissions and evidence presented by the parties, there is only speculation as to whether such approvals will be acted upon and there was no evidence presented that any of these proposals will be proceeding. As I understand it, these approvals were sought by landowners and not by service station operators. The time for commencement for one of these permits has already been extended. The simple fact of the matter is that the approvals granted thus far appear to based on speculation. They have not been acted upon, and as such, I must consider the merits of this proposal based on the circumstances at hand, namely that although permits have been issued and that there is another matter before the Tribunal pending, there is no similar facility along this part of the highway.

36. Although the proposed service centre is to be located on land within the Rural zone, in my view, this particular facility will not simply serve a local function, it will also service the needs of highway travellers. As such I do not consider the fact that the land is zoned for rural purposes should, as a matter of principle, render the proposal unacceptable particularly when such a facility is geared towards servicing the needs of highway travellers and it would appear that the Responsible Authority has agreed to similar facilities in the general locality.

37. Next I need to consider whether the proposal is in conflict with the planning scheme's policies and strategies. To this extent it would be fair to say that much of the Responsible Authority's concerns relate to the fact that land is not located within an area for which a development plan has been approved.

38. In this regard I note that under the MSS the subject land is located within the urban fringe area and an area that has been identified for future urban purposes. I acknowledge that both the MSS and the local policy at Clause 22.01 call for development within rural areas that have been defined for future urban purposes to occur only once a development plan has been approved. This is to ensure that inappropriate development does not occur prematurely thus prejudicing the future orderly and development of these areas. This is a sensible approach.

39. However, in considering the merits of the particular use and development proposed in this application, I think it relevant to make a number of points.

40. First, whilst the proposal involves a land use which is urban in nature, it is also a land use which is found along rural highways on land zoned for rural purposes. It is a highway related use which services the needs of highway travellers. In this regard, this particular use can be distinguished from other types of commercial uses which are also discretionary but may not necessarily service the needs of highway travellers.

41. Second, although the land is currently zoned for rural purposes, the planning scheme clearly identifies the land as being located in an area which has been earmarked for future urban development. I would not consider the development of this type of facility at a major intersection within an urban area to be contrary to orderly planning.

42. Third, there has been no evidence presented to me to demonstrate that the land is unsuitable for the proposed use or some form of commercial use and development. Indeed Mr Tate readily conceded that (at page 9 of his submission) that "the change to a commercial use is inevitable_, given the land's future urban designation"(my emphasis)._

43. Fourth, whilst there is no approved development plan for the area, I do not consider that this should be fatal in the case of an application for a proposal that may be appropriate in both an urban and rural setting. I remain somewhat unconvinced that the existence of such a plan would be of any great assistance in considering the merits of a proposal such as this. An example of such a development plan is the "Lynbrook Development Plan" which covers the area to the north of the subject site where the three service centre facilities have already been approved. I note that the Lynbrook plan does not identify suitable sites for this type of facility, yet approval for service station developments has been given.

44. In short, I do not consider that the proposal is at odds with the general thrust the planning scheme's local policies. In particular, I do not consider that this particular proposal will hinder existing rural activities given that the balance of the larger lot can still be used for its current use nor will it impair the land's capacity to accommodate future urban development. This particular proposal is for a use which can, in the appropriate circumstances, fit into either the rural or urban context. In my view given that:

* the zoning of site provides discretion for the use to be considered (ie. no rezoning is required);

* the site is located in an area which has been designated for future urban development;

* the site is located on a rural highway and at a major intersection;

* the proposed use provides a facility that will service the needs of highway travellers, and

I do not consider it inappropriate or premature to allow this site to be developed for a highway related service type use such as that proposed here.

45. I accept Mr Anderson's evidence that this is a good site for such a facility. It is located on the departure side of an intersection, it has a frontage to the highway, satisfactory access arrangements can be made available, the land is flat and not encumbered by buildings or vegetation and furthermore it is located in an area where at some stage in the future urban development will take place.

46. I acknowledge that another division of this Tribunal [Member Monk] in Sherer v Casey City Council, I Crossley and Ors (2000/95273 unreported) rejected a proposal for a service station on land to the south of the subject site. However, I consider there are two important differences between this case and Sherer's case. The first is that in Sherer's case, the land was not located within a future urban area but rather in "the farm" or rural area under the MSS. The MSS strategies essentially call for the protection of agricultural land and to encourage farming pursuits in "the farm" area. In this case however, although the land is within a rural area, it is also earmarked for future urban development. Mr Tate conceded that the change from rural to urban is "inevitable". Second, it is evident from the Tribunal's comments in Sherer's case that the proposal before it was poorly conceived and lacking insufficient detail for it to be confident that it was appropriate. The proposal before me does not suffer from this deficiency. Accordingly I think that the circumstances of this case is somewhat different given these to fundamental differences.

47. The next major issue to be addressed is whether the proposed use is inappropriate because it is not located within a designated or planned activity centre.

48. It is true that the policies in both the SPPF and LPPF generally encourage the consolidation of commercial activities within established and planned activity centres. This needs to be balanced against the need to provide for facilities which service highway users. Although highly desirable, it is simply not always practical for this type of facility to be located within an activity centre.

49. I acknowledge the concern raised by Mr Tate about the potential for the proposal to compete with the identified activity centre located to the east (the Cranbourne West Activity Centre). In general terms I would not be concerned with a service station having a convenience shop component to serve highway needs. However in this case the retail component of the proposed centre is relatively large. It is well over 400 square metres. To this extent I consider it inappropriate to call it a "convenience shop" given that under the planning scheme's definition this type of retail outlet would have a maximum floor area of 240 square metres. This is a much larger retail facility that is akin to a small supermarket. In my view it is inappropriate to locate a retail use of this size outside a defined activity centre given that it is likely that a larger retail outlet will have some impact on the function and viability of planned centres.

50. This is not to say that a highway related service station should not have a retail component. It is appropriate to have some retailing that provides for convenience goods within such a facility. Indeed the provisions for Freeway Service Centres at clause 52.30, which are not dissimilar in concept to what is proposed here, limit the retail component to not more than 240 square metres. What I am saying is that the retail component should be much smaller. To this extent I consider that it would be appropriate for the "convenience shop" component to be reduced in size of 240 square metres which is more in line with the type of retail outlet which is envisaged for a highway service centre.

51. It may that at some stage in the future a larger retail component may be appropriate. However for the time being I consider that the retail component should be limited to no more than 240 square metres for the reasons that I have previously expressed.

52. Accordingly, the Responsible Authority's decision is set aside. A permit is granted for the development of a service centre and associated facilities on the subject site. The permit will contain conditions generally as discussed with the parties at the end of the hearing. This particularly so with respect to the modified access arrangements to both Hall Road and the Western Port Highway. In addition to the above I will also require amended plans to be submitted which reduce the size of the convenience shop component to no more than 240 square metres.