Victorian Civil and Administrative Tribunal|2004-04-05

BP Australia Ltd v Bayside CC [2004] VCAT 604 (5 April 2004)

Planning and Environment List - Section 77 Planning and Environment Act 1987 - Bayside Planning Scheme - Residential 1 zone - service station - car wash - convenience restaurant - "site" - traffic - noise - amenity.

With respect to permit application no. 2002/7754 the Responsible Authority's decision is set aside. A permit is granted for the subdivision of land and its use and development for the purpose of a service station, convenience restaurant, car wash, advertising signs and modifications to access to a road in Road Zone 1 in accordance with the endorsed plans at 301-307 Nepean Hwy, East Brighton. The permit must contain the following conditions:

1 Before the subdivision, use and development starts three copies of revised plans drawn to scale and dimensioned, 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 generally in accordance with the plans identified as Drawing Nos. R73966AP009 issue 2, R73966AP003 issue 3, R73966AP004 issue 3, R73966NP001 issue 4, R73966NP002 issue 2, R73966NP003 issue 1, R73966LEAS issue 2, AO1 issue 1, AO3 issue 3, CO2 issue 3, SG01 issue 1, SG03 issue 1, SG04 issue 1, SG05 issue 1 and SG06 but modified to the satisfaction of the responsible Authority to show:

a) The deletion of the Option A access arrangements on all plans and their replacement with those shown on the plan identified as Option B as shown on plan identified as Dwg No. R73966AP009 issue 2;

b) The subdivision plans to be modified to provide for the lot supporting the service station to have an area of 3515 square metres and the lot supporting the convenience restaurant to have an area of 2491 square metres as shown on plan identified as Dwg No. R73966LEAS issue 2;

c) Details of repairs to the existing acoustic fence adjacent to residential properties or its replacement;

d) The floor type to be constructed and finished floor levels to AHD;

e) All wall heights above ground level to be nominated on the plans;

f) A schedule of all external materials and finishes showing, inter alia, the colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car parking);

g) The proposed landscape treatment for the site including the existing and proposed species;

h) All plant and equipment (including air conditioning units, heating units, hot water systems, etc.) proposed to be located externally with such plant and equipment to be located away from bedrooms of adjoining properties;

i) A pedestrian path with a minimum width of 2 metres provided at the main entrance door to the service station, with the car parking spaces in front of the shop reorganised to allow for this and the disabled space to be adjacent to the pedestrian path.

j) The disabled car parking spare for the service station convenience restaurant to have a minimum width of 3.2 metres;

k) Two (2) bollards to protect the entrance to the service station convenience restaurant, and

2 Except with the written consent of the Responsible Authority, the following activities must only be open for use by patrons during the following hours:

6.00am to 1.00am the following day, on Fridays and Saturdays

Convenience restaurant drive-through and outdoor dining area

3 The use and development as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

4 Before the development starts, a site layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993 and submitted to the Responsible Authority. The plans must show a drainage scheme providing for the collection of storm water within the site and for the conveying of the storm water to Council's nominated point of discharge to the satisfaction of the Responsible Authority.

5 This permit will expire if one of the following circumstances applies:

* The development and use is/are not started within two (2) years of the date of this permit.

* The development is not completed within two (2) years of the date of the commencement of the works.

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.

6 The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the owner/developer.

7 Before the use starts, areas set aside for parked vehicles, access lanes and associated access ramps as shown on the endorsed plans must be:

b) properly formed to such levels that they can be used in accordance with the plans;

d) drained, maintained and not used for any other purpose;

e) line-marked to indicate each car space and all access lanes;

f) generally in accordance with the relevant Australian Standard for car parking facilities; and

g) directional signage indicating car parking areas to be erected as required by the Responsible Authority,

all to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

8 Before the development hereby permitted starts, three (3) copies of a Landscape Plan, generally in accordance with the "Landscape Concept Plan Option B drawn by Tract Consultants, must be submitted for approval by the Responsible Authority. The plan must show the proposed landscape treatment of the site and include supporting information to the satisfaction of the Responsible Authority. In particular, the plan should be to a scale of 1:100 or 1:200 and show:

a) Accurate location of boundaries, existing and proposed built elements, neighbouring buildings and/or vegetation that may affect or be affected by the proposed development and landscape.

b) Accurate location and identification (botanical name) of existing vegetation to be retained and/or removed.

c) Tree Protection Zones as required by the Responsible Authority.

i) Areas proposed to be lawn, pavement, garden beds and other landscape features;

ii) The location of existing and proposed trees as well as shrubs and ground cover groupings, climber locations;

iii) Coded identification for these groupings and the numbers proposed, and

iv) A Plant Schedule, which consists of an itemised list of all proposed species. The schedule must include the following headings:

* Plant code; (refers to codified botanical names used on plan, for example, Bm);

* Container size (for all other plant groups), and

e) Supporting notes on the plan that elaborate on specific requirements for the proposed landscaping (eg. site preparation, protection during construction of existing vegetation, use of a suitable mulching material and proposed depth etc.)

e) A legend that explains any graphic symbols used on the plan.

f) All paving (except driveways) to be permeable with details of the permeability of the paving to be supplied.

With the consent of the Responsible Authority, the landscape plan may allow for the removal of existing trees along the southern boundary adjacent to the rear of properties fronting Coronation Street and for the provision of new landscaping incorporating trees and shrubs growing generally to a height of 5-6 metres.

When approved the plan will be endorsed and will then form part of the permit.

9 Landscaping shown on the endorsed landscape plan as it applies to each of the lot to be created must be established within 3 months of the commencement of the permitted use on that lot. Landscaping works as shown on the endorsed plans must be established to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

10 All existing vegetation shown on the endorsed plans to be retained must be suitably marked before any demolition of existing buildings commences or development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

11 Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorised persons. This fence is to be maintained for the duration of the construction and demolition, to be a minimum height of 1.8 metres, or such alternative height as is approved in writing by the Responsible Authority, and be constructed and sited to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.

All access works are to be designed and constructed to the satisfaction of and at no cost to VicRoads and the Responsible Authority.

12 Any redundant vehicle crossings must be removed and the area reinstated with appropriate kerbing and channelling (and then sown with grass) to the satisfaction of the Responsible Authority.

13 Vehicle crossings shall be a minimum distance of 1.5 metres from any street tree unless approved in writing by the Responsible Authority.

14 The landscaped areas shown on the endorsed plan and schedule shall only be used as landscaped areas and shall be maintained in a proper tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of a similar size and species.

15 All disturbed surfaces on the land resulting from the development/building and works authorised or required by the permit shall be revegetated and stabilised to the satisfaction of the Responsible Authority so as to prevent any erosion or siltation either on or adjacent to the land.

16 The existing street tree/trees must not be removed or damaged.

17 All garbage areas must be screened from public view.

18 All activities at the premises must comply with the Occupational Health and Safety (Hazardous Substance) Regulations, 1999.

19 The amenity of the area must not be detrimentally affected by the use or development, by the:

a) transport of materials, goods or commodities to or from the land;

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

20 Except with the consent of the Responsible Authority, within 1 month of all plant equipment being installed in association with the permitted development on each lot, a qualified acoustic engineer must carry out appropriate tests to assess compliance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 [SEPP N-1], to the satisfaction of the Responsible Authority. A report setting out the results of such testing together with a schedule of recommended works to achieve compliance with SEPP N-1 must be submitted to the Responsible Authority within 14 days of the testing being completed. Except with the consent of the Responsible Authority the recommended works must be completed within 3 months from all plant equipment being installed on each lot. Further testing to ascertain whether compliance has been achieved must be carried out to the satisfaction of the Responsible Authority, until compliance with SEPP N-1 has been demonstrated.

21 No sound or amplified equipment or loudspeakers shall be installed so as to be audible from outside the subject land, to the satisfaction of the Responsible Authority.

22 Except with the written consent of the Responsible Authority the loading bay must not be used for loading or unloading of goods or materials except after 7.00am and before 7.00pm any day. The loading and unloading of goods from vehicles must only be carried out on the land. Except with the consent of the Responsible Authority, fuel tankers deliveries must not occur between the hours of 10.00pm and 7.00am the following day.

23 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

25 All signs must be located wholly within the boundary of the land.

26 The subdivision as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

27 Reticulated water, sewerage and electricity must be available to each lot shown on the endorsed plans to the satisfaction of the Responsible Authority. All basic services including water, electricity, gas, sewerage and telephone shall be installed underground and located to the satisfaction of tile Responsible Authority.

28 Each lot shown on the endorsed plans must be drained to the satisfaction of the Responsible Authority or other relevant authority.

29 This permit will expire if one of the following circumstances applies:

a) the subdivision is not started within two years of the date of this permit;

b) the subdivision is not completed within two (2) years of the date of starting.

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

30 The certified plan of subdivision must show provision for carriageway easements for the benefit of each newly created lot generally in accordance with Plan of Subdivision No. PS 512298R prepared by Bosco Jonson Pty Ltd.

31 The certified plan of subdivision must show the existing E-1 easement to be a sewerage easement, in favour of South East Water Limited pursuant to Section 12(1) of the Subdivision Act 1988.

32 Prior to the issue of a Statement of Compliance, 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.

33 Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

34 The Statement of Compliance must be lodged with the Titles Office within 5 years of the date of issue of this permit.

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

36 Unless otherwise agreed in writing by Melbourne Water, finished floor levels of new buildings within the Special Building Overlay must be a minimum of 300mm above the applicable flood level.

37 Unless otherwise agreed in writing by Melbourne Water, any new garage, carport or vehicle parking area within the Special Building Overlay must be constructed with finished floor or surface levels a minimum of 150mm above the applicable flood level.

38 Measures shall be designed and constructed to prevent fuel product spillage into the stormwater drainage system, during bulk transfer operations. The 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.

39 Upon completion of works, a certified survey plan, showing levels reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that Melbourne Water's conditions have been satisfied.

40 The applicant shall enter into an agreement with United Energy for extension, upgrading or re-arrangement of the electricity supply to lots on the plan as required (A payment to cover the cost of such work will be required).

41 The median break on Nepean Hwy opposite the entry to the service station must be closed in accordance with the requirements of and to the satisfaction of VicRoads.

42 The recommendations set out in the report by Road Safety Audits Pty Ltd dated 6 August 2003 to be implemented, to the satisfaction of VicRoads.

43 Access arrangements to Nepean Hwy must be constructed generally in accordance with the Grogan Richards concept plan drawing no. 101154/T/04, to the satisfaction of VicRoads.

* Access should be designed so that all vehicles can be driven in a forward direction when entering and leaving the subject land.

* All works associated with the construction of the access points are to be completed at no cost to the Responsible Authority and VicRoads.

* Worksite traffic management practices must be in accordance with the Australian Standard AS 1742.3-1996 "Manual of uniform traffic control devices Part 3: Traffic control devices for works on roads".

45 Any redundant existing vehicle crossovers must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of VicRoads and the Responsible Authority.

46 Adequate signs, pavement markings and traffic islands must be provided to direct and control the flow of traffic within the site.

47 Functional layout plans of the proposed access arrangements must be submitted to VicRoads for approval.

48 Subsequent to approval of the functional layout plans, detailed engineering plans of the access arrangements to Nepean Highway and North Road must be submitted to VicRoads for approval.

49 Prior to gaining approval from VicRoads to undertake. works on Nepean Highway the applicant must:

(a) Provide a bank guarantee, without a termination date, in favour of VicRoads for a sum equal to the estimated cost of all roadworks associated with access arrangements to Nepean Highway and North Road.

(b) 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.

(c) Provide evidence that the Contractor has as a minimum, proven occupational health and safety systems, quality management systems, environmental management systems and traffic, management systems. in place.

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

(e) Submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works at least 21 days prior to the commencement of 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 - 2002.

(f) Arrange for the contractor to contact the VicRoads surveillance co-ordinator on telephone number 9881 8079, at least fourteen (14) working days prior to the commencement of roadworks.

50 The applicant must provide payment to VicRoads for the actual cost of surveillance which may be undertaken during the roadworks.

51 The depth and composition of all pavements within the Nepean Highway reservation shall be to the satisfaction of VicRoads.

52 The standard of all materials and work within the Nepean Highway reservation shall be to VicRoads' standard specification for roadworks.

53 The applicant shall pay the full costs of all roadworks, drainage works, pavement markings, public lighting alterations, service relocations, signage and other costs associated with the proposed development works.

The Responsible Authority is directed to issue a permit in accordance with this order.

Mr M McH Wright QC and Mr C Townshend of Counsel instructed by Corrs Westgarth Chambers.

1 This was an application under s 77 of the Planning and Environment Act 1987 against the Bayside City Council's decision to refuse the grant of a permit with respect to permit application no. P2002/7754. The permit application sought permission for the use and development of a 24 hour service station, mechanical car wash, a 24 hour convenience restaurant, advertising signs as well as the subdivision of the subject land into 2 lots.

2 At the hearing Mr Wright QC, Mr Finanzio and Mr Stokans tabled and spoke to written submissions.

3 In addition we heard expert evidence from a number of consultants. These included 3 traffic engineers, namely, Mr Andrew O'Brien [called by Mr Stokans], Mr Henry Hume Turnbull [called by Mr Finanzio] and Mr Stephen Hunt [called by Mr Wright]. Mr Wright also called expert evidence from Mr Andrew Rodda, a town planner, Ms Elizabeth Hui, an acoustic engineer, Mr Rob McGauran on urban design issues and Mr Wulff on landscaping. The evidence in chief of these witnesses was set out in written reports. They were made available for cross-examination.

4 We were also presented with an array of other material to assist our consideration of the merits of the proposal. This material included various plans, maps and diagrams; photographs of the subject land and surrounding area as well as extracts from documents such as the planning scheme and Melbourne 2030.

5 After the hearing we inspected the subject land and locality. As indicated to the parties at the end of the hearing, our inspection included viewing the land from the backyard of the property at No 3 Coronation Street that has its rear boundary in common with part of the section of the subject land.

6 At the commencement of the hearing Mr Wright applied to amend the permit application by substituting amended plans. The plans had been circulated following directions given at an earlier hearing by the President.

7 Mr Wright drew our attention to the inclusion of 2 options for vehicle access to Nepean Hwy in the amended plans. Option `A', which generally reflects the access arrangements put forward with the permit application, essentially relies on the vehicles leaving the service station using the service road before entering the main southbound carriageways of Nepean Hwy some distance further south. Option `B' reconfigures the access arrangements so that vehicles are able to leave the service station site and enter Nepean Hwy's main carriageways directly without going down the service road. This would include changes to land owned by the council. Mr Wright said that Option `A' remains the applicant's preferred option as it does not require changes to council assets, namely, the service road.

8 Mr Stokans and Mr Finanzio offered no objection to the substitution of the amended plans. The amendment to plans was allowed under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

9 During the course of the hearing, we requested that Mr Stokans seek instructions from the council as to what its attitude would be to the Option `B' changes should a permit be granted. Mr Stokans advised that whilst the council still remains opposed to the proposal even with the Option `B' access arrangements, nonetheless he had been instructed that the council would allow the modifications to its assets if the tribunal granted a permit allowing the proposal to proceed with the access arrangements shown on the Option `B' plans. Mr Finanzio indicated that the objectors would still oppose any change to the road configuration. Mr Wright said that on the strength of what Mr Stokans had said at the hearing and upon this being recorded in our reasons the applicant would abandon the Option `A' in favour of Option `B'.

10 In light of this Mr Wright sought a further amendment to delete the Option `A' access arrangements to Nepean Hwy. The permit application was further amended to delete Option `A' from the plans.

11 Mr Stokans also sought leave to amend the notice of refusal to include the following 2 additional grounds:

* The proposed aggregation of uses is contrary to the objectives of the Residential 1 zone.

* The proposal is contrary to the objectives of clause 17.02 to locate commercial facilities in existing or planned activity centres.

12 Mr Wright and Mr Finanzio offered no objection to these 2 additional grounds being added to the notice of refusal and it was so amended pursuant to s 127 of the Victorian Civil and Administrative Tribunal Act 1998.

13 With the exception of a small parcel of public land upon which exists a an RSL memorial, the subject land is essentially located on the south-east corner of Nepean Hwy and North Road, East Brighton and extends through to have a frontage to the north side of Coronation Street. The land is irregular in shape with frontages of 102.29 metres to North Road, 52.68 metres to Nepean Hwy and 42.67 metres to Coronation Street. The land has an overall area of about 6006 square metres.

14 A single storey building that has been used for the purpose of a restaurant exists in the south-west sector of the land, towards the corner of the Nepean Hwy and Coronation Street. The building is oriented so that it faces northward towards a relatively expansive paved car park that extends along the entire length of the subject land's North Road frontage. The setbacks to Nepean Hwy and Coronation Street are not substantial and provide for a moderate degree of landscaping. We understand that the restaurant was originally established in about 1993 and operated as part of the "Sizzler" chain and subsequently as a "Lone Star" restaurant. Although the restaurant building and car park remain on the land, they are currently vacant.

15 The subject land is relatively flat. It supports several stands of mature native trees, centrally through the car park along the southern boundary and to the east of the existing building and along the east side boundary. Vehicle access into the car park is possible via two crossings, one from North Road located towards the north-east corner of the land, the other from the Nepean Hwy service road near the north-west corner of the existing building.

16 Contextually the subject land is located within an established urban area. The land has an abuttal with a two storey medium housing development fronting North Road to the east and several residential properties occupied by detached houses fronting Coronation Street to the south. The dwelling to the east is built in reasonably close proximity to the common boundary with the subject land and has a number of west facing windows with an outlook over the existing car park. Dwellings on properties to the south are well setback from the car park on the subject land with the intervening area essentially used as backyard space.

17 Further south, on the south-east corner of Nepean Hwy and Coronation Street exists a single storey building used as a child care centre whilst single and double storey dwellings exist in the residential hinterland directly east and south and further west in the area that is on the other side of Nepean Hwy.

18 The southern end of a commercial precinct that mainly extends along the east side of Nepean Hwy and then for a short distance along North Road exists in the area immediately to the north of the subject land. The properties with an interface to North Road directly opposite the subject land include a car sales showroom, a car park and a single storey building used as a veterinary clinic. Various commercial uses exist further north. It is relevant to note that the commercial area directly north is located within the City of Glen Eira, with the east side of Nepean Hwy and the north side of North Road being the municipal boundaries with the City of Bayside.

19 Nepean Hwy is a primary arterial and, as a state highway, is part of the declared road network. Adjacent to the subject land, Nepean Hwy has 4 northbound lanes heading towards central Melbourne with two additional right turn lanes at the intersection with North Road and 4 southbound lanes with 1 right turn lane at the intersection with North Road. In addition, there is a service road separated from the 4 main highway lanes that commences about half way down along the subject land's Nepean Hwy frontage and then continues in a southward direction providing access to residential streets including Coronation Street. We note that a median strip divides the northbound and southbound lanes of Nepean Hwy, however, a break in the median strip allows for right turn movements from the northbound lanes across the 4 southbound lanes and into the entry to the southbound service road. This arrangement allows vehicles travelling northbound to enter the residential area to the east without going through the Nepean Hwy/North Road intersection.

20 North Road is also a primary arterial running in an east-west direction. Adjacent to the subject land, North Road provides for 2 westbound lanes at the land's north-east corner before widening to 5 lanes [including turning lanes] further west at the Nepean Hwy/North Road intersection that is controlled by signals.

21 As part of the primary arterial road network, both Nepean Hwy and North Road carry substantial levels of traffic. It is estimated that Nepean Hwy carries about 65000 to 70000 vehicles per day whilst North carries about 28000 to 30000 vehicles per day.

22 It is proposed to use and develop the subject land with a 24 hour BP service station; mechanical car wash incorporating vacuum bays; a 24 hour "Hungry Jacks" convenience restaurant with a drive through facility; associated advertising signs, car parking and landscaping. In addition, it is also proposed to subdivide the land into 2 lots.

23 The service station building is single storey and is to be located toward the south-west corner of the subject land in about the same position as the existing restaurant building. The service station building will be oriented to face northward out towards a series of petrol bowsers to be covered by a canopy. We understand that a range of goods will be sold from this building including convenience items.

24 The proposed mechanical car wash is to be located to the east of the service station, adjacent to the common boundary with the westernmost residential property on the north side of Coronation Street. Vehicles will access the car wash via a lane that commences to the north-west of the service station building and then extends behind and around it. A 3 metre wide landscaping strip is to be provided between the car wash and the property to the east as well as the area between the access lane and Coronation Street.

25 The proposed convenience restaurant is to be located toward the south-east corner of the subject land, to the rear of the residential properties fronting Coronation Street. Although initially proposed as a double storey "Burger King" restaurant with 151 seats for customers, the proposal has been amended to comprise a single storey building with 68 seats. A drive through facility is also proposed with the entry point to the north-east of the building running along the east side boundary and then extending around the back of the building adjacent to the common boundary with properties fronting Coronation Street. An existing 3 metre wide landscaping strip will be maintained between the drive through lane and the boundary with the residential properties to the south.

26 The application also seeks permission to subdivide the land into 2 lots. We note that there was some confusion in relation to the actual dimensions of each lot, however, we are content to adopt the subdivision concept shown on plan Dwg No. R73966LEAS issue 2 that formed part of the book of amended plans. It is only marginally different to the original plans of subdivision lodged with the council. The service station and car wash will be contained within lot 1 whilst the proposed convenience restaurant and its associated car parking are to be contained on lot 2. Lot 1 is to have an area of 3515 square metres whilst lot 2 will have an area of 2491 square metres. Easements are to be created on both lots [as shown on the original subdivision plans] that will effectively allow vehicle access from one lot over the other and shared access to the adjoining roads. For example, vehicles seeking to enter the service station from North Road will be able to do so via the convenience restaurant site whilst vehicles travelling along Nepean Hwy will be able to access the restaurant site through the service station.

27 A total of 62 car parking spaces are to be provided on the land, 42 of which are to be located on Lot 1 to be used in association with the restaurant with the other 20 spaces on the service station site. The easements to which we have previously referred essentially comprise the access aisles through both lots.

28 We also note that the proposal includes several advertising signs as shown on the application plans. These include pylon, pole and various illuminated business signs associated with the proposed BP service station and Hungry Jacks restaurant. We do not propose to set out the details of each sign proposed, suffice to say that the relevant details are shown on the plans.

29 Under the Bayside Planning Scheme the subject land is located within the Residential 1 zone, the provisions for which are found at clause 32.01. 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 residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

30 In the table to clause 32.01-1, "Service Station" is a section 2 or permit required use provided that the following conditions are met:

* Adjoin, or have access to, a road in a Road Zone.

* 3600 square metres if it adjoins on two boundaries a road in a Road Zone.

31 Both Nepean Hwy and North Road and within a Road Zone and access to the subject land is available from both these roads. As such, a permit may be granted to use the land for a "service station" provided that the site does not exceed 3600 square metres.

32 Under the table to clause 32.01-1, "Convenience Restaurant" is also a section 2 or permit required use within the Residential 1 zone provided that the condition that "the site must adjoin, or have access to, a road in a Road Zone" is met.

33 Further, under clause 32.01-3 permission is required to subdivide land whilst under clause 32.01-6, permission is also required to construct buildings and works in association with a use in section 2 of the zone.

34 A small portion of the subject land, toward the north-east corner, is covered by the Special Building Overlay, the provisions for which are found at clause 44.05. A permit is required to construct a building within the area affected by the SBO and an application must be referred to the relevant flood plain manager under s 55 of the P & E Act. In this case the relevant flood plain manager is Melbourne Water. Melbourne Water has not objected to the proposal subject to conditions being imposed on the permit.

35 We also note the various provisions of the following clauses which are relevant to the consideration of the proposal:

* Clause 52.20 [Convenience restaurant and take away food premises]

* Clause 52.29 [Land adjacent to a road zone category 1, or a public acquisition overlay for a category 1 road].

36 We will refer to them as appropriate later in these reasons.

37 Amongst other things, the decision guidelines at clause 65 require consideration to be given to a range of matters including the provisions of the State Planning Policy Framework [SPPF], the Local Planning Policy Framework [LPPF], orderly planning and the impact on the amenity of the area. Clause 65.02 deals with the specific issue of subdivision and specifies a range of matters to be considered.

38 In relation to policy, at pages 9-11 of his submission, Mr Stokans' identified a raft of policies within both the LPPF and SPPF that are in some way relevant to the consideration of the proposal. We will discuss the relevance of these together with Melbourne 2030 as appropriate.

39 Following its lodgement, the council required notice of the permit application to be given. In response the council received 215 objections. In his submissions, Mr Stokans' conveniently summarised the objections as relating to "traffic and safety issues, neighbourhood character, overdevelopment of the site, noise, air pollution, detrimental to residential amenity and the proposed uses being inappropriate for a residential area". Mr Stokans' succinct description of the matters raised in the objections was by no means exhaustive and we have taken note of the more detailed summary in attachment 3 of his submission.

40 The council also referred the permit application to VicRoads given the changes to vehicle access from the land to the adjoining roads and to the various authorities to be advised in subdivision matters. By and large these authorities responded by advising the council that they did not object to the proposal, although in some cases this was subject to conditions being imposed on any permit that should issue. We were provided with these responses as part of the documentation filed by the council in response to the application for review being lodged.

41 The proposal was also considered by a number of council departments with respect to traffic and urban design. Both these departments raised concerns about the proposal as submitted. We will set out our findings on traffic and urban design matters later in these reasons.

42 On the 14 April 2003, the council resolved to refuse the permit application on the following grounds:

1. The proposal would have a detrimental and unacceptable impact on the efficiency and safety of both vehicular and pedestrian traffic in the service road to Nepean Highway.

2. The proposed development will detract from the amenity of the surrounding area in terms of surrounding area in terms of increased traffic generation.

3. The on-site access and egress arrangements are inadequate.

4. The proposal will result in an unreasonable loss of amenity to adjoining residential properties in terms of noise.

43 As noted, the council also relies on the 2 additional grounds referred to earlier in these reasons.

44 The application for review was filed on the 28 May 2003. The grounds of the application are:

1. The proposal is in accordance with State and Local planning policies.

2. The proposed use and development is appropriate for this site, given its prominent location at the corner of two main roads.

3. The proposal will not have unreasonable impact on the efficiency and safety of vehicular and pedestrian traffic in the service road for Nepean Highway.

4. The proposed development will not unreasonably detract from the amenity of the surround [sic] area in terms of traffic generation.

5. Appropriate access and egress can be provided to the site.

6. The proposal will not result in unreasonable loss of amenity to adjoining residential properties by way of noise generated from the site.

7. The proposed use and development is an acceptable outcome having regard to the relevant planning policies of the Bayside Planning Scheme and will produce a net community benefit.

45 In coming to our decision we have considered the various matters raised in the submissions presented on behalf of the parties, the evidence, the details of the proposal and the relevant matters under the planning scheme and the legislation. We do not propose to recite all that was said during the hearing, rather, we will refer to the issues raised and set out our findings having regard to the submissions and evidence.

46 We consider a useful starting point is to examine the provisions of the Residential 1 zone. Although Mr Stokans and Mr Finanzio resisted categorically asserting that the proposed use of the land for the purpose of a service station is prohibited under the provisions of the Residential 1 zone, none the less they questioned the appropriateness of using subdivision and the creation of a system of easements over the lots to be created to overcome the constraint that the site on which a service station may be permitted must not exceed 3600 square metres.

47 Putting aside the merits of the proposal, the discretion to grant a permit must exist before the council or the tribunal standing in its place is able to do so. "Service station" embraces a broad range of activities and is a section 2 or "permit required" use within the Residential 1 zone provided that the condition set out in the land use table opposite the use is met. The first part of the condition requires that the site must adjoin land in either a business or industrial zone or, in the alternative, adjoin or have access to a road in a Road Zone. The second part of the condition states that the site must not exceed 3600 square metres if it adjoins on two boundaries a road in a Road Zone. If the condition is not met, the provisions of clause 31.01-2 make it clear that such use would be prohibited.

48 It was common ground that the first part of the condition is met given that the land adjoins and has access to a road in a Road Zone. Nepean Hwy and North Road are both within the Road Zone and they adjoin the subject land. The query arises as to whether the second part of the condition is met, that is, whether the "site" to be used for service station is 3600 square metres or less. The query was raised given that the land that is the subject of the whole application has an area of just over 6000 square metres and that access from North Road to the service station is through the car park to the proposed convenience restaurant. It was suggested that if the convenience restaurant land, say the car parking area and associated accessways, is used to provide access to the service station, then this area should be included as part of the service station site. The implication would be that the service station site would exceed 3600 square metres.

49 In reviewing this issue, the first point to be made is that the condition in the land use table does not set the 3600 square metres limit as the size of the lot upon which the use is to be established, rather, it requires that the "site" must not exceed this area. We note that in his submission, Mr Finanzio agreed that although "site" is not specifically defined within the planning scheme, it cannot mean "lot" which, in general terms, is defined as being a parcel of land that is capable of being disposed of (eg: sold) separately.

50 We agree with Mr Finanzio that given that "site" is not defined within the planning scheme, it must be given its ordinary meaning having regard to the context in which it is being used. The Macquarie dictionary defines "site" as "the position of a town, building etc., especially as to its environment" and "the area on which anything, as a building, is, has been or is to be situated." There is no mention of a site being identified by title boundaries. It follows that the "site" of a particularly use or development is not necessarily the same as the title boundaries, rather, it is the position or area upon which the use is situated.

51 It is not unusual that the "site" of a use and development would coincide with title boundaries, but this is not always the case. For example, a "site" may comprise several adjoining lots. It is not uncommon for this to be the case where a "site" larger than any one lot cannot be found in a particular area to accommodate a use. Several lots may need to be combined to create one "site". The "site" would be considered as the area upon which the use is situated rather than several "sites" following the lot boundaries.

52 It can also be that the actual "site" of a use may be less than the whole of the lot upon which it is situate. This approach is consistent with the notion that there can be a number of "sites" containing separate and distinct uses on one lot.

53 In this case we are satisfied that this proposal involves 2 separate and distinct uses, a convenience restaurant and its associated car parking and landscaping etc. on one part of the land and a service station and its associated car wash and parking etc. on another.

54 Given the layout, we do not consider that there will be much difficulty identifying which part of the land is the convenience restaurant or service station site. The main buildings housing each use are clearly separate, on different parts of the lot and readily identifiable. Whilst there may be a commercial synergy created by locating the convenience restaurant adjacent to the service station, it is not essential that they be managed by the same operator nor are they necessarily dependant on each other commercially.

55 Whilst there may be, from time to time, customers who park in one area, say adjacent to the convenience restaurant, and then proceed to walk to the service station to purchase an item, this does not result in an outcome where one site is created. In many commercial areas, particularly those having abutting car parks, it is not unusual for customers to park in one [say a supermarket car park] and then visit a nearby business on adjoining or nearby land. This relationship does not, in our view, automatically mean that both businesses are on the same "site" from a planning viewpoint.

56 We also do not agree that the shared access arrangements cause one "site" to be created or that the land over which the carriageway easements are to be created on one lot form part of the "site" or area of the adjoining lot. All land relies on other land for access. In most cases such reliance is placed on an adjoining road or a public right of way. Further it is also not uncommon to find car parks serving different commercial uses to be linked or a situation where one property has the benefit of a carriageway easement over an adjoining property. Devices such as the creation of carriageway easements are specifically provided for in the subdivision legislation. We do not consider that the use of easements as part of this proposal to be a way of getting around the rules, rather, it uses a legitimate "device" provided for in the law to give effect to the more efficient use of land. We would think that this is consistent with the way that the subdivision legislation is intended to be used particularly if it facilitates better access arrangements.

57 Mr Finanzio referred us to the decision of the tribunal in Woolworths Ltd v Mornington Peninsula Shire Council [2001] VCAT 2284. That case involved the establishment of a "Safeway Plus" petrol outlet on land with an area of 852 square metres with some access via the access aisles running through the supermarket car park. In that case, the scheme's provisions at clause 32.01restricted the maximum area of the service station "site" to 3000 square metres, however, under clause 52.12, a minimum site area of 1080 square metres was also required. A permit could not be granted if the "site" exceeded 3000 square metres, however, discretion existed for a permit to be granted for a site less than 1080 square metres. In that case the tribunal found that the "site" for the purposes of both clause 32.01 and 52.12 could reasonably include the accessways as well as the service station pad thus bringing the "site" area to over 1080 square metre threshold set out in clause 52.12. However, it is relevant to say that the tribunal's analysis at paragraph 32 of the decision included 2 scenarios, that is, what the site area would be with and without the inclusion of the accessways in the "site" area. The tribunal concluded that in either scenario, compliance would be achieved with the "site" area requirements at clauses 32.01 and 52.12. Importantly, we consider it relevant to refer to the comments set out at paragraph 29 of the tribunal's decision when it stated:

It is a matter of fact in each application as to how the site is specifically defined in terms of the area and dimensions, to enable the relevant provisions of the planning scheme applicable to the subject land, to be considered.

58 We consider that in this case the creation of shared access arrangements, particularly when it is desirable to limit access points onto main roads, represents an appropriate planning outcome. It could be that by reconfiguring the layout of the buildings and car parking areas separate access off North Road could be provided for the service station. Although such an approach would remove the reliance on the easement over the convenience restaurant site for access to the service station from North Road, it would be a less preferable outcome and one that, in any event, we do not consider necessary.

59 We agree that the proposed subdivision assists in identifying the boundaries of each site in this case, however, we would not regard it as essential. We agree with Mr Wright's submission that the proposal involves 2 distinct and separate land uses. Each use is capable of being separately identified and there was nothing presented to us to suggest that one is ancillary to the other. The sharing of access between the 2 sites does not in our view make one use ancillary to the other; rather it creates efficiency in the use of the land that ought not be discouraged.

60 We accept Mr Wright's submission that the subdivision of the land seeks to facilitate the ability to create separate parcels of land that are capable of being held in different ownership rather than being a vehicle to circumvent the planning scheme's statutory prohibitions. The creation of a system of easements represents an efficient use of land and facilitates an appropriate planning outcome in terms of limiting access points onto main roads.

61 Based on the circumstances of this case, we find that the service station "site" is less than 3600 square metres as shown on the relevant lot on the proposed plan of subdivision.

62 Although we have found that based on the facts that discretion to grant a permit exists, it does not follow that a permit should or will be granted as a matter of course. Mr Finanzio was correct in drawing our attention to clause 31.01-2 which makes it clear that we must decide whether the proposal will produce an acceptable outcome in terms of planning policy, the purpose and decision guidelines of the zone and any other decision guidelines.

63 Mr Stokans and Mr Finanzio both submitted that the proposal is not supported by the purpose of the zone or the policies set out in the scheme.

64 In relation to the purpose of the Residential 1 zone, Mr Stokans submitted that proposal does not accord with these. In particular Mr Stokans referred to the 4th purpose statement that, in his submission, seeks to limit non-residential uses to those that serve a local community need. Mr Stokans argued that the proposal would create a "multi-functions activity centre" that would derive most of its custom from non-local traffic passing the subject land. He went on to argue that the proposal is akin to a small neighbourhood centre, that it should be located within a Business 1 zone and that if the council had intended the land to be used in such a way it would have facilitated the land being zoned for business purposes.

65 Mr Finanzio supported Mr Stokans' submission that the proposal does not accord with the purpose of the zone. Mr Finanzio asserted that the there is no local need for the proposed uses and presented a map showing the location of several service stations in relatively close proximity to the land. Further, he argued that the advantages presented by the land at this prominent corner location is one associated with serving a broader regional catchment of highway uses rather than fitting in with the purpose of the zone which seeks to facilitate a limited range of non-residential uses to serve local community needs.

66 Mr Wright submitted that the subject land presents itself as an appropriate site for non-residential use given its previous commercial use, that it is not developed with housing and its unsuitability for residential use given the amenity impacts such as noise and traffic, associated with the adjacent main roads. Mr Wright submitted that the use of the land for this type of use is consistent with the policy at clause 18.01 given that it will service the highway needs of highway users whilst minimising the disruption on residential communities.

67 In considering the purpose of the zone, the first thing to note is the 4th purpose statement makes it clear that it can accommodate non-residential uses. The purpose statement also makes it clear that a limited range of non-residential uses can be accommodated within it. We would think that "Service Station" and "Convenience Restaurant" would both fall within the "limited range" contemplated by the purpose statement given that they are both identified as discretionary uses in the zone.

68 Whilst it is clear that the inclusion of these uses within section 2 of the land use table to the zone does not make them automatically acceptable, we think that it would be reasonable to conclude that their inclusion as discretionary uses would imply that there would be some circumstances when they would be acceptable within the zone. Further there is no prohibition on them being located on sites next to each other.

69 We do not agree with Mr Stokans view that such uses should only be contemplated on land within the Business 1 zone given that such a zoning would have more far reaching implications. In particular the range of uses and associated development that could be anticipated in the Business 1 zone would be broadened considerably. Rather under the current zoning, the provisions allow the flexibility for some commercial uses to be located within the Residential 1 zone without the need to open up the full range of options presented by some form of business zoning.

70 As to the assertion that any non-residential use must serve a local community need, we would refer to the well known decision of the former Planning Appeals Board in Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126] in which the issue of 'need' was discussed as follows:

BP Australia Ltd v Bayside CC [2004] VCAT 604

At a glance

Court

Decision date

Source

Judgment (261 paragraphs)

BP Australia Ltd v Bayside CC [2004] VCAT 604 (5 April 2004)

Parties

Legislation Cited (2)