MEDIUM NEUTRAL CITATION: [2002] VCAT 451

Attached are my written reasons for the Order/Decision dated 30 May 2002 in these matters

Mr W Nelson of Harwood Andrews, Lawyers, for the City of Greater Geelong.

Mr Stuart Morris QC and Ms S Brennan of Counsel instructed by Lander and Rogers, Solicitors, for Bunnings Buildings Supplies Pty Ltd.

1. On 30 May 2002 we made the following order in these matters:

1. In application P416/20021 the Tribunal sets aside the Responsible Authority's requirement for further information the subject of this review and directs the Responsible Authority to consider the application for a permit as made under Section 47.

2. In application P415/2002 the Tribunal declines to make the declaration sought."

2. I now set out my reasons for that decision. Senior Member Gould is absent on leave. I understand that he concurs in these reasons.

3. Application No P415/2002 ("Declaration Application") is an application by Bunnings Building Supplies Pty Ltd ("Bunnings") against the City of Greater Geelong ("Council") for a declaration under Section 149A(1)(a) of the Planning and Environment Act 1987 that

"issues of Economic Impact and net community benefit, of the use are not relevant considerations to planning permit application No 1502/01".

4. Application P416/2002 is an application by Bunnings against the Council pursuant to Section 78(b) of the Planning and Environment Act 1987 ("Act")1987 ("Act") against a requirement by the Council for further information under Section 54 of the Planning and Environment Act 1987 ("Requirement Application").

5. The grounds of the Requirement Application are stated to be:

"Council's letter of 16 January 2002 requesting further information under Section 54 of the Planning and Environment Act 1987 to provide a detailed economic impact and net community benefit analysis for the proposed development is unnecessary and unreasonable. A planning permit is not required to use the land for a Bunnings Warehouse (Trade) Supplies). A planning permit is only required to construct a building or construct or carryout works, create access to a Road Zone Category 1, remove native vegetation and to erect and display advertising signs."

6. By planning permit application dated 14 November 2001 numbered 1502/01 Bunnings applied to the Council for a Planning Permit in respect of the subject land to build a Bunnings store, associated timber yard (trade supplies), plant nursery, advertising signs, vehicle crossing to a main road, removal of native vegetation and associated works.

7. The subject land is an irregular shape lot of 2.971 hectares located on the north east corner of Surf Coast Highway and Grove Road, Grovedale with frontages of about 80 metres to the highway and about 250 metres to Grove Road. Currently the subject land comprises a mix of uses including a single storey motel, dwelling, a landscape gardening supply storage yard and vacant land. Some vegetation along the boundaries will be removed.

8. The proposal is to build and develop the site for a Bunnings Warehouse comprising:

* A fully enclosed covered main sales buildings and drive through timber yard of 8,493.56 sqm;

* An Outdoor Nursery of 2,636.7 sqm with decorative sale cloth canopy to provide shade;

9. The application plans provided for car parking loading and access, landscaping and advertising signs.

10. The planning assessment report submitted by Bunnings to the Council described the operation of the premises as:

"The premises will operate as a Bunnings Warehouse and will sell a range of hardware, homeware, timber and garden products for use in automotive, building, industry, commerce and landscape gardening industry. The majority of customers will be householders and trades people. The store will open 7 days a week from 7 am to 9pm, Monday to Saturday and 8 am to 6 pm on Sundays, with late trading at key trading times of the year, including the period prior to after Christmas Day, prior to Easter, prior to Mother's Day and Father's Day and when special promotions are held."

11. The subject land and adjoining land to the north and east is within a Business 4 Zone under the Greater Geelong Planning Scheme. Across the Surf Coast Highway to the west the land is located in a Residential 1 Zone whilst across Grove Road to the south land is also included within a Business 4 Zone.

12. Surf Coast Highway is within a Road Zone Category 1 and Grove Road is within the surrounding land use road zone.

13. Under the provisions of the Business 4 Zone, "Trade supplies" including timber yard and landscape gardening supplies are Section 1- No Permit Required uses pursuant to Clause 34.04-1 of the Greater Geelong Planning Scheme provided the condition opposite is complied with, which states:

"The combined leaseable floor area for all trade supplies must not exceed any amount specified in the schedule to this Zone."

14. The schedule to the Business 4 Zone places no limit on the maximum combined leaseable floor area for Trade Supplies.

15. "Restricted retail premises" is also a Section 1 - No Permit Required Use - in the zone subject to a condition which is complied with in this case.

16. A planning permit is required pursuant to Clause 34.04-4 to construct a building or carry out works.

17. A planning permit is required to remove native vegetation pursuant to Clause 52.17 of the planning scheme and to create or alter access to a Road Zone Category 1 pursuant to Clause 52.29.

19. In argument other provisions were referred to as follows.

20. Section 4 of the Act setting out the objectives of planning as follows:

(a) to provide for the fair, orderly, economic and sustainable use and development of land;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in (a), (b), (c), (d) and (e)

(2) The objectives of the planning framework established by this Act are:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(d) to conserve and enhance those buildings, areas and other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community....."

21. Provisions of Section 60(1)(b) of the Act which reads as follows:

"60(1) Before deciding on an application, the responsible authority

(b) if the circumstances appear to so require, may consider -

(i) any significant social and economic effects of the use or development for which the application is made; and

22. Clause 17.02 of the State Planning Policy Framework where the introduction provides "these policies must be taken into account when preparing amendments to this scheme or making decisions under this scheme" and the objectives set out in Clause 17.02:

"To encourage developments which meet community needs for retail............and other community services and provide net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities."

"A five year time limit for commencement should be attached to the planning approval for all shopping centres or expansions of over 1000m2 in floor space."

23. The purposes of the Business 4 Zone in Clause 34.04 which are:

"Purpose - to implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies.

To encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services."

24. Clause 34.04-4 which sets out the decision guidelines to be considered, in addition to those contained in Clause 65 of the Scheme, in considering an application for construction of the buildings and works, the relevant provisions of which are as follows:

"Before deciding on an application, in addition to the decision guidelines in Clause 65, the Responsible Authority must consider, as appropriate.....

* The State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies."

25. Clause 34.04-4 also contains an exemption from notice and appeal provisions.

26. Clause 65 of the Scheme which states that because a permit can be granted does not imply that a permit should or will be granted, and the matters that the Responsible Authority must consider in Clause 65.01 and in particular the first, second, third and fifth dot points, namely:

* The matter set out in Section 60 of the Act

* The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and Local Planning Policies

* The purpose of the Zone, Overlay and other provisions

27. Clause 21.20 of the Municipal Strategic Statement relating to commercial and retail activity centres SRAC which includes the following passage under the heading "Importance and Key Issues":

"National trends in the retailing sector over the past decade can be observed in Greater Geelong, especially the move to peripheral sales and to large free standing supermarkets and their desire for suburban or fringe urban location. Land use requirements and the underlying trends associated with retail and socio-demographic patterns and preferences need to be clearly understood in planning for shopping centres and retail activity generally. The Geelong CAA (Central Activities Area) plays a major role especially in the provision of higher order retail goods and services. The CAA must be maintained as the focus for retail and other personal and community services in Greater Geelong. The recognition of the CAA's pre-eminent role should also be understood in the light of expected continuing growth in the "suburbanisation" of retail activity, to meet the local convenience needs of residents. The expected ongoing expansion in peripheral sales outlets in Greater Geelong also needs to be kept in perspective."

28. Clause 22.09 of the Local Planning Policy Framework relating to Assessment Criteria for Retail Planning Applications. The policy provisions contain the following passage:

Where a permit is required to increase the leaseable floor area, it is policy to require the following information as appropriate:

* An economic impact report if the proposal is for a retail development associated with the provision of an additional 2000 square metres or more in retail floor space which should provide the following information:

* Assessment of any likely impact on existing or planned (ie approved) retail facilities.

* Description of anticipated benefits to community (measurable and non-measurable)

* Estimated contribution to employment (in both construction and retail operation), and noting the indirect flows (although these generally to a wide area, including the State and National economy).

* Overall contribution to net community benefit."

followed by two pages of details to be supplied with the economic impact report relating to retail demand, retail supply, escape spending, impact on existing retail facilities, net community benefit and design and location.

29. Clause 22.10 applies to applications for use and development in restricted retail premises. The policy basis and objectives read as follows:

Retailing from "peripheral outlets" is increasing because of consumer demand for greater choice, the economies of scale, the lack of suitably large sites in traditional retail centres, increased site accessibility and exposure in out of town locations and competition in the retail sector. New restricted retail premises in Geelong are supported because they provide the community with a greater choice of goods. This policy is to ensure that a logical and consistent approach is used when considering proposals for restricted retail premises.

This Local Policy builds on the MSS objectives in Clause 21.20 "Commercial and Retail Activity Centres".

* To encourage restricted retailing at appropriate locations.

* To integrate restricted retailing into the existing retail hierarchy to achieve a net community benefit (as measured for example by improved levels of retail choice and service, employment growth and environmental enhancement).

Where a permit is required for a use or development, it is policy to:

* Encourage restricted retail uses to be located in the Central Activities Area, on the fringe of the Central Activities Area or within or adjoining an existing commercial area. Where sites in these locations are not available, preference will be given to clustering of peripheral retailing activities at highway locations.

* Proposals for restricted retailing in the superstore category should be accompanied by a complete retail analysis including proposed catchments, the potential impact on existing centres and a description of the net community benefit that will result.

* Proposals for restricted retailing should include an urban design context report based on the following information:

* On-site provision of, or proximity to, social infrastructure facilities.

* Public lighting and public security in the car park areas.

* Visual appearance of car park and building façade treatments with regard to visual mass and bulk.

* Provision of landscaping including depth of buffer landscaping for buildings and car park areas to Category 1 road zones and residential zones.

* The siting of buildings from the front boundary to allow for parking and landscaping with regard to the mass of buildings and the expanse of car parks.

* The length of retail street frontage to be used for display.

* Accessibility and separation of customer loading bays and large transport vehicle goods loading bays.

30. The requirement for further information under Section 54 of the Act was made by letter from Council dated 16 January 2002 to Bunnings Planning Consultants, Stokes Planning Pty Ltd, the relevant parts of which read as follows:

"Last night the Council was briefed on the abovementioned application at a Council Briefing Session. At this meeting council resolved that:

A The applicant provides an economic impact and net community benefit analysis for the proposed development as set out in council's adopted Retail Strategy.

B. Council undertakes an informal public information notification process of the permit application to obtain community comment in order to make an informed decision on the application.

Therefore, I wish to advise you that further information is required in accordance with Section 54 of the Planning and Environment Act 1987.

1. A detailed economic impact and net community benefit analysis for the proposed development.

To assist you in understanding the level of detail required in this assessment, I have attached a full copy of Clause 22.09 of the Greater Geelong Planning Scheme, which outlines the Assessment Criteria for Retailing Planning applications - this has been taken from council's adopted Retail Strategy 1998."

31. At the hearing Mr Nelson and Mr Morris made submissions on behalf of their respective clients. There were no third party objectors. Whilst no oral evidence was given, the Applicant tabled an affidavit dated 1 May 2002 of Michael John Champion, a partner of Lander & Rogers, Solicitors for Bunnings, which sets out the history of Bunnings' earlier attempts to obtain a rezoning to Business 4 Zone of other pieces of other land and of this application. He was not required for cross-examination.

32. The Applicant had given a summons to witness to the Council to produce certain files particularly about the "Geelong Smart Move" programme. Mr Morris indicated that he did not require production of the Smart Move files at this stage and perhaps not at all.

33. Mr Morris further emphasised that he did not wish to pursue the question of the construction of the building for use as a "plant nursery" as a separate issue at this stage as he considered that this use was included in the definition of "Trade Supplies" and he requested the Tribunal deal with the matter on this basis.

34. It became clear to the Tribunal that the Council has strongly opposed the introduction of a second Bunnings Store into the Geelong Area. Mr Champion's affidavit related the history of earlier unsuccessful rezoning application where Council had rejected the Panel's recommendation of the rezoning of the relevant land to Business Zone 4. This is also evident in the Council's reversal of its initial decision not to require an economic impact statement. There was also some reference to e-mails expressed in strong terms as to the Bunning applications. However the Tribunal regards the attitudes and relationships between the parties as irrelevant to the matters to be considered. Councils are obliged to make decisions on permit applications, which can be matters of controversy.

35. There was some reference by Mr Morris to an organised opposition by Geelong Hardware and Trade Supply businesses to the Bunnings proposal and to a former Councillor's subsequent commercial involvement with one of those parties. The Tribunal makes no comment on these issues and regards them as irrelevant to its consideration.

36. There is also a debate over opinions obtained from Mr Morris. He had given opinions to the Council in respect of certain matters related to other properties and permit applications, Bunnings had obtained his opinion in respect of this matter and his opinions were quoted by each party in support of their position.. Mr Morris argued how his opinions could be distinguished. Whilst the Tribunal has taken into account his submissions, which include the submissions he expressed on behalf of Bunnings in one of the opinions, the Tribunal is obliged to form its own interpretation of the effect of the planning policies on the request for further information.

37. I find some inconsistencies in Council's approach in relation to when an economic impact statement should be required.

38. The starting point arises from Bunnings first rezoning application to rezone the land at Lot 2, Princes Highway, Waurn Ponds, Geelong to Business 4 Zone. The question arose in the rezoning process as to at what stage a detailed economic impact statement should be required and Bunnings had submitted through its urban and regional planners Trevor Goff and Associates Pty Ltd in a letter dated 16 June 1998 that a more detailed economic assessment will be supplied in due course.

39. In its submission to the Panel Council expressed a concern that the submission in support of the rezoning was based only on the location element of Council's retail policies but submitted that these policies are designed to ensure that a more thorough and comprehensive assessment is undertaken at the first practical stage in the planning approval process and then went on to say:

"Council's major concern with the submission by Underwood and Dally is that it is based upon only the location element of Council's retail planning policies. Whilst it is acknowledged that the site complies with the preferred location criteria, these policies are designed to ensure that a more thorough and comprehensive assessment is undertaken at the first practical stage in the planning approval process. Council is particularly concerned that rezoning land as suggested in this submission, in the absence of any detailed analysis, in no way assists the approval process. If this land is zoned Business 4, it commits it for such purposes prior to any analysis of net community benefit having been undertaken. The provisions of the zone in fact provide that no permit is required for the use of land for "Trade Supplies" with the only control being a permit requirement over buildings and works. Neither the Application requirements nor Decision guidelines in Clause 34.04-4 provide an indication that applications need to be accompanied by documentation to assess major land use implications and it would seem to be a clear contradiction to the intent of the planning reform program to use the "buildings and works" controls to restrict or deny the "As of Right" or Section 1 uses within a particular zone.

As the Dally submission points out, the concept of determining net community benefit has become the established element in State and Council planning policies as part of the assessment of major retail development proposals. It is Council's opinion that this assessment must be undertaken as the policy basis for rezoning land and that it is quite inappropriate to attempt to undertake the major policy assessment using the "buildings and works" controls of the zone. Further, Council does not agree with Mr Dally's interpretation (p20) that the Retail Planning Assessment Criteria referred to in Part A page 21 of Council's new Retail Strategy are intended to apply at the development application (ie permit application) stage of the process. Similarly, it does not agree with his interpretation (p26) that policy 2 of new Clause 22.19 (quoted at p24 of the Dally report) should only be applied at development approval and not considered at the rezoning stage. Council's policy intention is that a project of this nature should be assessed in its totality at the rezoning stage, with the only consideration at the permit issuing stage being to those elements relating to building and works issues. Council is concerned that rezoning large areas of land to B4 zone, based only on the limited location policies of the Retail Strategy, could have the affect of creating B4 zones far in excess of any likely future requirement (ie. Without any fully integrated policy basis)."

40. This is not consistent with Council's position in the present case where the land is already appropriately zoned and the only permit required is for buildings and works, not use.

41. Secondly Mr Champion's affidavit noted that in its report of March 1999 the Panel found in relation to the Waurn Ponds land:

* it is difficult to see what more perfect site could be identified for peripheral retailing in the City of Geelong than the subject site.

* It is difficult to see what further study the Council would need to undertake in order to decide whether or not this land is suitable for peripheral retailing and therefore should be included in a Business 4 Zone.

42. However after formal requests for planning scheme amendment and the provision of reports by traffic and economic experts as requested by Council, Council ultimately made a decision not to rezone that land.

43. Further Council has adopted a contradictory position in relation to the property subject to the current permit application. After abandoning the Waurn Ponds land, Bunnings looked for other potential sites and found the subject land already Zoned Business 4.

44. Mr Champion's affidavit says that in the course of doing so Bunnings were provided with a copy or a letter from the Council to a consultant dated 3 January 2001 dealing with a proposal to rezone that land to Business 4. The letter states amongst other things:

"I do not believe your letter provides adequate policy justification for changing the zoning to Business 4 which has the effect of making "restricted retail premises" a Section 1 use. In particular, I draw your attention to the policies contained in Clauses 21.20, 22.09 and 22.10 which have their origin in Council's adopted Geelong Region Retail Centre Strategy, 1998.

The rezoning you are seeking, if successful, would enable your client to submit a permit application for buildings and works on his land to enable construction of a major restricted retail premises, thus avoiding the need for the detailed economic and net community assessments described in the above policy documents."

The land was rezoned, but Council does not now adopt its previously stated position that in a building and works application the need for a detailed economic and net community assessment is avoided.

45. The information request in the letter dated 7 December 2001 from Council making a formal request pursuant to Section 54 for the provision of a detailed economic and social impact assessment stated:

"To assist you in understanding the level of detail required in this assessment, and as a guide to the preparation of the same, I have attached a full copy of Clause 22.09 of the Greater Geelong Planning Scheme which outlines the Assessment Criteria for Retail Planning Applications. You will specifically note the concept of the net community benefit, which any Economic/Social Impact Study would be expected to address."

46. I take this statement as the Council's statement of the policy basis for the request.

47. This policy is referred to above and applies to applications for new or expanded provision of retail floor space, but it is expressed to apply "where a permit is required to increase the leaseable retail floor area".

48. Under the zoning, the schedule states no maximum leaseable retail floor area and accordingly no permit is required to increase that area, only a permit for buildings and works. Therefore the policy operates so that where there is no maximum limit on leaseable floor area set out in the schedule to the Business 4 Zoning, no such permit is required. The permit sought in this case is for other purposes and we can see nothing in Clause 22.09 to justify such a requirement for permit applications with which the policy is not concerned.

49. What has then ensued is that Council in its submission to the Tribunal has not relied principally on Clause 22.09 as the basis for the justification of the request under Section 54 but rather on Clause 22.10 relating to Restricted retail premises where the policy does enable the requirement of a complete retail analysis including proposed catchments, the potential impact on existing centres and a description of the net community benefit that will result where in an application for a permit for use or development for a proposal for restrictive retail in the super store category.

50. I consider that this shift in ground implicitly acknowledges the validity of Mr Morris's argument that Clause 22.09 is not applicable as a basis for the request for further information. I accept Mr Morris' submissions that Clause 22.09 does not provide a basis for the information requirement, and I agree that the position originally taken by Council before the Panel and in its letter of 3 January 2002 that the rezoning stage is the appropriate time for such a requirement under these provisions.

51. I do not consider that the references to Clause 17 of the State Planning Policy Framework provides any support for the information requirement. The policy in Clause 17.02 in my view is relevant to the process of zoning or rezoning the land as it requires that the relevant facilities should be located in "existing or planned activity centres". I consider this policy supports the position taken by the Council before the Panel that the question of economic impact should be considered at the zoning stage.

52. I agree with Mr Morris's comments that as there is no maximum leaseable floor area specified in the schedule, the facts that a permit would not be required for the internal rearrangement of an existing building for use as a Bunnings Warehouse and that there is an exemption for notice and advertising for the zone are not consistent with the information requirement in this case being justified in the context of the application..

53. Even if Council may rely on Clause 22.10 as the basis for its request for further information, I do not consider it is appropriate for Council to use Clause 22.09 as the basis for the detail of a report required under Clause 22.10. The detail required in a report under 22.09 is very extensive, whereas a lesser level of detail is provided in 22.10, and there is no cross reference to 22.09 as a guide.

54. I conclude that in determining whether there is a basis for this request for further information under Section 54, the Tribunal must decide whether "Trade supplies" or "Restricted retail business" is the more appropriate definition of the proposed use of the land.

"Trade supplies Land used to sell by both Timber yard Retail

Restricted retail Land used to sell or hire: Equestrian supplies Shop

Premises a) automotive parts and Lighting shop

56. In considering this matter I have taken into account the submissions of the parties. The members have also inspected a full size Bunnings Stores as arranged with the parties.

57. I have also considered the decision of the Tribunal in STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton City Council and Bunnings Properties Pty Ltd [1999] 5 VPR page 264.

58. In that application an objector to a Bunnings store in a Business 4 Zone sought a declaration that the various uses fell within the definition of "shop" which was a prohibited use in the zone. Bunnings contended that the uses fell within the definition of "Trade supplies" or "Restricted retail premises" and were generally as of right in the zone. The Tribunal dismissed the application for a declaration and affirmed the decision to grant a permit.

59. The definition of "Trade supplies" before the Tribunal in that case differed from the current definition, in that the word "trade" appeared at the end of paragraphs (a), (b) and (e), but has now been deleted.

60. The conclusions of that Tribunal, set out in paragraph 42, are essentially that in relation to timber, power tools, hardware, paint and so forth one would conclude that the uses were in the building trade. I take this to mean that the Tribunal considered that the use was within the then definition of "Trade supplies". The Tribunal went on to say that "other items that would typically be sold in a Bunnings warehouse would create a use comprised in the concept of "restrictive retail premises...". The Tribunal considered that the two definitions were broad and focussed on the nature of the goods that were being sold.

61. In my view the deletion of the word "trade" from the definition of "trade supplies" in paragraphs (a), (b) and (e) adds broadly to the scope of that definition and brings most of the goods sold within a Bunnings store within the definition of Trade supplies. Also I agree with Mr Morris that the very wide range of goods sold there can be said to be for use in building, commerce, industry, landscape garden and primary production.

62. When comparing the definition with that of "Restricted retail premises" I find that equestrian supplies, party supplies, swimming pools, videos or office supplies have little or no prominence in a Bunnings store and the other subject matters namely automotive parts and accessories, equipment, electric light fittings, floor coverings, furnishing, furniture and household appliances are not the main focus of a Bunnings store or of the respective departments in a Bunnings store in which they may be sold.

63. I make the finding of fact that, having regard to the range of goods sold in a typical Bunnings store, the departments into which they are divided and the manner in which they are displayed, the use of the premises is more appropriately encompassed in the definition "Trade supplies" rather than "Restricted retail premises" and that the latter definition does not embrace the greater or the most comprehensive part of the business.

64. From this finding I draw the conclusion that it is not appropriate to apply in any significant way and the circumstances do not require the application of the policies in Clause 22.10 relating to Restricted retail premises in determining whether a request for further information of the magnitude in this matter should be made, and I determine that the request is not supported by the policies and should be set aside.

65. I do not disagree with Mr Nelson that in a buildings and works application (leaving aside the gardening products use) the duty of the Responsible Authority to have regard to the consequences of the use of the building remains. However the significance of the proposed retail facility, the Applicant's position in the market and its ability to impact on existing and planned retail facilities must be considered in relation to the policies of the scheme, and in this case, as no permit is required in this zone for buildings and works, and as the use is as of right, the policy provisions do not give such clear direction as to justify the information requirement in this case.

66. However I am not prepared to grant the declaration sought. Whilst my reasoning on the information requirement may indicate the direction of my views of the relevance of the information sought, I am not prepared determine relevance in the absolute terms asked at this preliminary stage if such information is brought before the Tribunal in some way. It is difficult to say information or material is not relevant if it has not been examined. All that has been put before the Tribunal at this stage is a request for information, and I have determined there is no policy basis for that request. However I am not willing at this stage to preclude the Council or the Tribunal from considering actual material produced.