Are the third party objectors entitled to be parties to the proceeding?

1. At the time, the application for permit was lodged[2] with the Responsible Authority the land was subject to the Development Plan Overlay Schedule 3[3]. A development plan had been approved pursuant to this Overlay and the application was generally in accordance with the Overlay.
2. Under clause 43.04-2 an application which is generally in accordance with the development plan is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Planning and Environment Act 1987 (the Act). In other words, there is no requirement to give notice of the application for permit, there are no rights to receive notice of the determination of the Responsible Authority and there are no rights for a person to lodge an application for review if a decision to grant a permit is given.
3. On 13 May 2010, the Minister for Planning amended the Surf Coast Planning Scheme[4] and the subject land was deleted from the Development Plan Overlay. On this same day, the Responsible Authority gave notice of the application under section 52 of the Act and various third parties lodged objections to the proposed development.
4. Whilst the applicant contends, the relevant point in time for determining whether an application is exempt from third party rights is at the time the application was lodged with the Responsible Authority, and the exemption continues to apply despite the changes to the planning scheme removing the exemption, the Tribunal does not accept that contention.
5. The Responsible Authority is required to apply the planning scheme at all relevant times during consideration of a permit application. In particular, under section 52(1) (a) and (d) it is required to give notice of an application, unless it is satisfied that the grant of a permit would not cause material detriment to any person. Whilst at the time the particular application was lodged, it was, under the provisions of clause 43.04-2, 'exempt', the exemption was removed and therefore no longer applied to the particular application from the 13 May 2010. The provisions of section 52(1) do not on its face tie the giving of notice to the date of the application being lodged.
6. There is no requirement under the Act that indicates the status of the permit application be determined at the time it is lodged[5]. In Perorad Care Pty Ltd the Tribunal determined that section 83A(2) of the Act 'must operate at the time when notice of the application for review is required to be given'. If there is no exemption to third party rights and notice is given, any subsequent change to the planning scheme that makes the application for permit exempt from third party rights does not undo what has already been done or been required to be done[6]. In West Valentine Pty Ltd, Deputy President Gibson determined 'the permit application was exempt from third party rights at the time when notice of the application for review was required to be given therefore section 83A(2) applies'.
7. In this case, once the planning scheme was changed the Responsible Authority determined to direct notice thereby complying with the legislative requirements under section 52(1) (a) and (d). As it received objections the provisions of section 64 and if applicable section 82 then applied to the application. The status of the application was determined at the time the Responsible Authority considered what notice was required. At this time the exemption did not apply.
8. The third party objectors all lodged objections with the Responsible Authority, were all served with the application for review, and have all lodged statements of grounds. They are all entitled to be parties to the proceeding.
9. Given the Tribunal's findings in relation to this issue it is not considered necessary to give leave to the objectors under section 60 Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) to be joined as parties to the proceeding, as requested.

1. It was submitted on behalf of Mr Crick that the proposed use of the land by Bunnings should be characterised as a 'shop'. Under the provisions of clause 33.03-1 a 'shop' is a prohibited use within the Industrial 3 zone. The use of land for retail premises (other than a shop), restricted retail premises are within the Industrial 3 zone permit required uses under clause 33.03-1.
2. The applicant rejects the description of its warehouses/stores as a 'shop' and submits its use of land involves what is defined under the Victorian Planning Provisions (VPP) land use terms as 'trade supplies' and 'restricted retail premises'.
3. 'Trade supplies' under clause 75 of the planning scheme is nested within 'retail premises'. 'Restricted retail premises' is nested within 'shop' and 'shop' is nested within 'retail premises'. 'Timber yard' is nested within 'trade supplies'.
4. Bunnings submitted that of relevance to the application are the definitions of the land use terms: 'retail premises'; 'restricted retail premises'; 'trade supplies'; 'shop'; and 'timber yard'. These terms are defined in clause 74 of the planning scheme as follows:

Land used to sell goods or services, or to hire goods. It includes the selling of bread, pastries, cakes or other products baked on the premises. It does not include food and drink premises, gambling premises, landscape gardening supplies, manufacturing sales, market, motor vehicle, boat, or caravan sales, postal agency, primary produce sales, or trade supplies.

a) sell goods by retail, or by retail and wholesale;

f) furniture, bedding, furnishings, fabric and manchester;

g) household appliances, household electrical goods and home entertainment goods;

Land used to sell by both retail and wholesale, or to hire, materials, tools, equipment, machinery or other goods for use in:

primary production; or local government, government

Land used to sell sawn, dressed, and treated timber, wood fibreboards, and the like. It includes cutting the timber and boards to order, and selling hardware, paints, tools, and materials used in conjunction with the use and treatment of timber.

1. Bunnings is described as a store that offers hardware, timber, garden supplies and home improvement goods and services. Bunnings is also seeking a permit for restricted retail premises. Recently an Advisory Committee characterised the new Woolworths "Oxygen" hardware and home improvement stores as 'trade supplies', 'restricted retail supplies' and landscape gardening supplies' principally with reference to a comparison with goods sold by Bunnings[7]. Mr Crick's Mitre 10 Torquay also offers the same goods and services as does the Bunnings stores.
2. The Responsible Authority treated the proposed use as 'trade supplies' relying upon the decision of the Tribunal in Bunnings Building Supplies Pty Ltd v Greater Geelong City Council[8]. It did not advance any further argument one way or the other before the Tribunal in relation to the categorisation of the use.
3. In determining the categorisation of the use, reliance has been placed on the well established principles in relation to characterisation of use enunciated by the courts.[9] It is also considered important that these principles be applied in the context of the relevant zone provisions having regard to what has been referred to as 'an expansive rather than a restrictive approach'[10].
4. In both STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton CC[11] and Bunnings Building Supplies Pty Ltd v Greater Geelong CC[12] the Tribunal has held that a Bunnings Warehouse could operate under a permit for 'trade supplies'. The applicant advised the Tribunal that it is common for Bunnings to operate under a permit for 'trade supplies' and that more than a third of these stores are located in Industrial zones[13]. It is understood Bunnings seeks a permit for restricted retail premises to expand into this area to provide similar goods to that proposed to be provided by the Woolworth 'Oxygen' stores.
5. The Tribunal undertook an inspection of a number of existing Bunnings Warehouses/stores, as well as an inspection of Mitre 10 Torquay. It was observed that these stores all offered hardware, timber, garden supplies and home improvement goods and services. It was also observed, as confirmed by the applicant, that the Bunnings stores do not just supply to the trade but a large proportion of its market is to the DIY public[14].
6. It is considered such stores operate within what is defined in the planning scheme as 'trade supplies'. In reaching this view, it is accepted, as was found in STY Building Supplies that this involves the sale of goods suitable for use in the trade and is not confined, as submitted by the objector/respondents, to goods actually sold to persons in trades, businesses or professions described in the definition. Such sales under 'trade supplies' can be by both wholesale and retail. Under the definition, the sale of goods for the use in building and landscape gardening is also allowed. These are not restricted to either the building trade or the landscape gardening trade.
7. It is also accepted that there is nothing within the definition of a 'timber yard', which is nested within 'trade supplies', that it only sell goods for use in a trade. The definition refers to 'selling hardware, paints, tools and materials used in conjunction with the use and treatment of timber'. The Tribunal does not accept the contention that the land use definition should be defined by the term itself rather than the content of the definition.
8. The objector/respondents contended that to fall within 'restricted retail premises' all the goods that are sold or hired must either fall within one of the categories of goods listed within the definition, or be ancillary to a permitted category or type of goods. The objector/respondents sought to differentiate between items sold and whether they fell within the ordinary meaning given to the categories under the definition of 'restricted retail premises'[15].
9. Reliance, it was submitted, could not be made on the sale of non-complying goods being relatively small to the full range of goods on display as this contention had been rejected previously by the Tribunal in the Woolworths Limited case. It was further submitted to be considered ancillary the activity must be a necessary adjunct to the primary purpose of an activity that grows or develops from the primary use in order to enhance that use[16]. Goods which do not fall within the specified categories are new not adjunct categories.
10. Both tribunal determinations in Woolworths Limited and Bevendale Pty Ltd were overturned; reliance therefore cannot be placed on either decision. The setting aside of a decision for whatever reason by a higher court sets aside the reasons as well as the judgment[17].
11. It is considered that the proposed use comfortably fits within the definitions of trade supplies, timber yard, retail premises and restricted retail supplies. As stated in National Lifestyle Villages Pty Ltd v Wyndham CC[18] 'if a proposed use comfortably fits the definitions of two specified land use terms, the choice will often involve giving preference to the more specific term'.
12. The Tribunal notes that the Mitre 10 Torquay, which in its view is an identical use to the Bunnings Warehouses/stores, is located within an Industrial 3 zone. The contention that such a use is a 'shop' and therefore a prohibited use in such a zone appears to be somewhat disingenuous.

1. Torquay has two areas of Industrial 3 zoned land. These areas are located in Baines Crescent and in the West Coast Business Park. The land within Baines Crescent in which Mitre 10 Torquay is located is generally developed. The West Coast Business Park in which the proposed Bunnings Warehouse/store is to be located was created by way of Amendment C6 to the planning scheme on 15 July 2004 following a Panel Report[19] and Advisory Committee Report[20].
2. Bunnings proposes to develop a small format warehouse/store with a total retail area of 6,677 square metres and a maximum building height of 8.4m on eight of thirty-three lots that comprise Stage 1 of the West Coast Business Park.
3. The land has a total area of 19,333 square metres and has frontages to the Surf Coast Highway, Beacon Boulevard and Winki Way. The land is separated from the Surf Coast Highway by a generous public reserve area.
4. The building is to be set back from 83 to 100m from the Surf Coast Highway. Within this setback, an open area car park is to be located containing 210 car spaces.
5. Both the Responsible Authority and the objector/respondents submit it is inappropriate to locate a large format hardware store within the West Coast Business Park.
6. The Responsible Authority relies in this regard on the evidence of Ms Hansen who concluded that the loss of existing Industrial 3 zoned land to what is, in essence a 'retail premises' is not in accordance with orderly and proper planning. Whilst she agreed that industrial zoned land is an appropriate zone for the use of 'trade supplies' proposed, she was of the view that this type of large format store would act as an anchor and cause clusters of other bulky goods or restricted retail premises to co locate thereby reducing the supply of Industrial 3 zoned land.
7. The objector/respondents relied on the evidence of Mr Milner who concluded, as did Ms Hansen, that Bunnings is a major catalyst and anchor for other homemaker and bulky goods outlets. He considered the establishment of bulky goods, restricted retail premises should be proximate to activity centres, and that this proposal would remove land from the identified uses within the policies of the planning scheme. In his view, there is strong strategic justification for the West Coast Business Park to be used for office, service and industrial uses and the proposed use would compromise such uses. He referred to the proposed establishment of a Major Activity Centre (sub-regional centre) and mixed use corridor adjacent to the Surf Coast Highway at Armstrong Creek, approximately 11km north of Torquay, envisaged to accommodate a readily accessible homemaker centre for Torquay residents.
8. The applicant submitted the use is consistent with the Industrial 3 zone, the State and local policy framework, and expectations for the West Coast Business Park. In this regard, the applicant relied upon the evidence of Mr McGurn. The applicant also submitted there is no other site within Torquay suitable to accommodate a large format hardware store.
9. In terms of the policies within the planning scheme we find that
   • There is no suitable land within Torquay, appropriately zoned that would accommodate the proposed use. The other area of Industrial 3 zoned land in Baines Crescent is fully developed and there is no Business 4 zoned land to accommodate the proposed use. The large warehouse format with issues of loading and unloading, customer access does not lend itself to being located within an Activity Centre particularly of the size of the Torquay Town Centre.
   • There is no reference within the local policies of the planning scheme as to the suitable location for a large format hardware store, as is proposed by Bunnings. Heavy reliance was placed by those opposing the application on the Torquay and Jan Juc Structure Plan (May 2007)[21] which provides:
     • Large format building that seeks Surf Coast Highway frontage will be discouraged due to the potential impact of such development on the visual amenity of the Highway and the town's surfing identity.
     • Secondary (ie smaller scale/specialist) building retail floor space that does not require Highway frontage will be encouraged to locate at Baines Crescent within the Industrial 3 zone.

This has not been fully adopted into the planning scheme, although the document remains as a reference document to clause 21.08. Only the second dot point has been incorporated into clause 21.08 directing smaller scale/specialist bulky goods retail to Baines Crescent.

• Planning should accommodate uses to serve a growing population. 'Population growth in Torquay-Jan Juc has been rapid since the mid 1990's and the resident population is projected to double over the period 2006 to 2021'[22]. Torquay is becoming increasingly popular for permanent settlement.
• The proposed use of 'trade supplies' and 'restricted retail premises' are contemplated within the Industrial 3 zone. Both these uses are nested within 'retail premises'. The purpose of the Industrial 3 zone is to provide for 'industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict'.
• Bunnings does not operate purely as a restricted retail premises. We agree policy indicates restricted retail uses should be located close to or within Activity Centres whereas 'trade supplies' is more appropriately focused in the Industrial 3 zone. Whilst the planning scheme indicates secondary restricted retail premises are better located within Baines Crescent we consider the Responsible Authority may need to do further strategic work if concerned that bulky goods or restricted retail premises will co locate with Bunnings.
• We acknowledge that the Bunnings form of 'trade supplies' may not have been envisaged or anticipated when the land was rezoned in 2004 but the growth of the main trade area has seen that Bunnings considers this a realistic option. We do not consider that the future development at Armstrong Creek which may not occur for at least 10 years should result in this proposal not being considered.
• It is inevitable that increased growth, such as what is currently occurring in Torquay and expected to continue, brings an interest from what is described as higher order commercial. Such growth allows in our view for an increase in such higher order services, which leads to an added choice for the community.
• The proposal complies with the policy vision set out in clause 17.01-1 of the planning scheme by creating business and services to meet the communities' needs in an accessible location in what is recognised as a rapidly growing coastal town. Torquay, Jan Juc is designated as a major urban growth centre within the Surf Coast Shire.
• The 33 lots contained within Stage 1 of the West Coast Business Park provide sufficient capacity to accommodate a range of industrial activities with several lots already developed or under development.

Will the proposed development impact on the entry to Torquay?

1. The West Coast Business Park is subject to the Design and Development Overlay Schedule 5 (DDO5). The objectives of the DDO5 are:
   • To enhance the visual character and image of the Shire's industrial areas.
   • To protect the amenity and environmental quality of the townships in general, and adjacent non-industrial land uses in particular.
   • To minimise any adverse visual impact and/or noise impact from buildings and structures.
   • To ensure that development is appropriate to and blends with the surrounding streetscape in relation to scale, height, size, bulk materials and finishes.
   • To ensure that development enhances the visual character of the area and provides an appropriate buffer to adjacent non-industrial zones through appropriate building design, siting and provision of landscaping.
   • To ensure an excellent standard of architecture and urban design along land fronting the Surf Coast Highway.
   • To ensure that fences and advertising signs are designed to integrate with building and landscape design and do not detract from the amenity and appearance of the township.
2. The Industrial Development Policy as well as the Streetscape and Landscaping Policy found at clause 22 of the planning scheme are to inform the consideration of any applications under the DDO5. 'The policy seeks to ensure that new industrial development is designed, developed and landscaped in a manner that acknowledges the environmental, visual and residential amenity qualities of the Surf Coast Shire. The policy provides performance guidelines for the physical appearance and external layout of industrial premises, but does not include performance or amenity standards associated with land use as these are addressed in the industrial zones and in the general provisions of the scheme'[23].
3. The objector/respondents and to a certain extent the Responsible Authority were both critical of the proposed built form of the Bunnings Warehouse/store which would be a rectangular building in the corporate green with large panels of advertising identified with Bunnings stores.
4. They submitted the built form fell well short of the architectural excellence required and would severely diminish the 'gateway' to Torquay opposite the new civic centre. Reference was made to clause 22.05-3 which provides:

'In the Torquay North West Industrial Estate development should achieve design excellence for facades facing or visible from the Surf Coast Highway. Development proposal must demonstrate how they will contribute to the attractiveness of the entrance to Torquay. The prominence of the location demands design of the highest quality and this will be a crucial determinant in assessing planning permit applications'.

1. Ms Hansen submitted there had been no attempt to modify or alter the building format to fit within its coastal town location resulting in an uninspiring and visually domineering building within an industrial estate designed to accommodate small scale local industries and service businesses.
2. Mr Milner, whilst acknowledging that some of the amendments to the proposed building have respected some of the design objectives and performance criteria of clause 22.05, considered that the proposed layout and design falls notably short of other expectations. These included not ensuring an excellent standard of architecture; not allowing for a major office development and high amenity businesses to locate adjacent to the highway; not effectively using landscaping to enhance the visual amenity of the area and siting the car park so it is not visible from the highway.
3. Mr Murphy describes the proposed building in his evidence:

'It is to take the typical form of a Bunnings Warehouse/store being rectangular in shape with masonry walls finished in a pale colour at the base (to 2.1m) and a green finish to the upper wall. The proposed building is to be smaller, compared to the typical Bunnings stores, with a height of 8.4m[24], with a low walled non-roofed (but shade-sailed) garden section to the northern end. A central gabled 'pop-out' section creates the main pedestrian entry to the building and a pair of large openings toward the southern end of the eastern façade provide entry to the timber section.

The northern elevation is lower as it surrounds the open 'nursery' section. The façade is articulated by a series of window-like openings that are backed with contrasting coloured anodized finger-proof fencing.

The western elevation is a reverse of the eastern, with an 8.4m high wall forming the majority of the façade and the lower nursery wall to the northern end.

The southern elevation is a simple 8.4m high wall in the same two colours as the front façade.

The building is set back a considerable distance from the Surf Coast Highway, varying from 83 to 100m due to the slightly irregular shape of the site. A 6m landscaped buffer is proposed along the northern boundary, with a point of vehicular access approximately in the middle of this boundary and a delivery access at the western end. The building is set back 14.5m from the western boundary. This setback is comprised of an 8m landscape buffer and a 6.5m vehicular access way. The southern boundary curves and has a minimum 6m setback at its western end. This setback is proposed to be landscaped and accommodates two vehicle crossing points. Adjacent to the car park on the southern boundary, the landscaped area varies from approximately 5.5m to 8m'.

1. Mr Murphy recommended amendments to the main façades that would soften and articulate them, making them in his view more compatible with the local context:
   • Eastern façade - the addition of substantial panels of horizontal slatted timber, creating four distinct portions or modules to the building. The gable ended entry is timber clad. The timber slatted panel are to be allowed to weather to a natural grey colour, adding a lightening element to the predominantly green façade.
   • Northern and Southern facades - the timber slatted panels turn the corner to create a strong anchoring of the corners and reinforce the timber element. The incorporation of bold timber pergola structures fitting within the industrial design of the building. The pergolas are to be set in planted garden areas which allow for the growth of climbing plants to further soften the building.
   • Western façade - to remain in it simple industrial character.
2. The proposed development in our view will not impact on the entry to Torquay:
   • The Responsible Authority in rezoning this land to industrial, with a frontage to the Surf Coast Highway and opposite the civic centre, has already sought to manage impacts on the entry to Torquay by imposing a public reserve that separates the subject land from the Surf Coast Highway. This planted strip along the frontage of the site links in with Green Tree Park to the immediate north of the site. We note further residential development is proposed to extend to the north and it is our expectation that the gateway to Torquay will change in the future.
   • In terms of design whatever is proposed on the eight lots that make up the subject land, be it a single development as in the Bunnings Warehouse/store or eight individual buildings, landscaping[25] is an important element to reduce the impact on this entry into Torquay.
   • To seek architectural excellence within an industrial estate is problematic where utilitarian buildings are expected with large footprints, the ability for truck parking as well as loading and unloading requirements. Such examples can already be seen in the as constructed developments within the estate. Architectural excellence within an industrial estate must be considered in the context of both the building type and the location.
   • The incorporation of the eight lots for one development rather than eight individual built forms, in our view, will allow for better management of the built form and layout with lesser visual impact that can be accomplished through setbacks and landscaping. In this respect, the building is to be setback 83 to 100m from the Surf Coast Highway and landscape buffers of between 4 and 8m are located on the boundary of the site. This may not necessarily be achieved if the lots were individually developed.
   • We do not consider that the provision of an at ground car park within the front setback to the Surf Coast Highway detracts from the entry, rather it allows for the built form to be setback further from the highway and allows for an ample landscape buffer along the frontage. Additional landscaping within the car park area will also assist in softening how the built form is viewed from the highway.
   • The reduction in the overall height of the building to 8.4m we consider is a positive outcome that is more in keeping with the expected scale of buildings within this industrial estate.
   • We are supportive of the proposed additional amendments recommended by Mr Murphy and consider the use of timber elements along the facades relate to elements found elsewhere within the Torquay Town Centre and along the Surf Coast Highway. We also see the timber elements as reducing the corporate image of the built form.
   • We acknowledge Ms Hansen expressed the view that the central portion of the building could be higher, however we consider it is not necessary to increase the articulation of this element.
   • Ms Hansen considered the use of timber elements suggested by Mr Murphy was a positive outcome. Ms Hansen however suggested that the pergola elements could be extended into the car park area. Whilst we agree that an extension of the robust timber pergola along the eastern elevation of the building would further emphasise the Surf Coast style, we do not consider extending the pergola structures into the car park would be beneficial. Rather, we would prefer, as suggested by Mr Murphy, a substantial increase in tree planting giving a much stronger 'treed' character to the car park area[26].
   • We consider the suggestion of mounding within the landscaped area along the frontage to be unnecessary and acknowledge the concerns expressed by the Responsible Authority in relation to security.
   • We note that proposed advertising signs, which consist of business identification, panel, floodlit, and directional/information signs have been reduced in size since the lodging of the original application. Two signs of 45m² and 67m² are proposed to the east and west elevations, one 100m² sign to the south and two signs of 8m² and 10.8m² to the north elevation. We understand all businesses wish to have strong identification but see the reduction in the size of the proposed signage as being more responsive to the location. We expect also that the proposed landscaping will lessen any negative visual impact of the signage.

1. In support of the proposal the applicant submitted 'the proposal delivers social, economic and environmental benefits to the community of Torquay: especially by way of improving accessibility to services, providing greater retail choice and competition, and providing a local economic stimulus; and further, the proposal will also reduce escape expenditure beyond the municipality and its associated social and environmental costs'[27].
2. If there are adverse impacts on existing businesses as a consequence of the proposal, the applicant submitted, this will not undermine the retail hierarchy, nor result in a net reduction in the overall extent of adequacy of facilities available to the community.
3. In this regard, the applicant relied upon the evidence of Mr Lee who predicted that the greatest impact of the new Bunnings would be felt by the Bunnings Warehouse/store located in nearby Waurn Ponds where a large number of Torquay tradespeople, residents and holidaymakers currently choose to shop for trade supplies.
4. The objector/respondents relied upon the evidence of Mr Ainsaar and submitted there would be a severe impact on Mitre 10 Torquay of at least 36% of its turnover, as well as on other retailers within Torquay with related type hardware and building supplies, homemaker, furnishing and homeware businesses. The new store, it was submitted, would principally draw its trade from existing businesses in the area and with an impact greater than 15%, likely to result in the failure of the impacted business[28].
5. Mr Cherubin submitted that rather than focus on 'escape expenditure' consideration should be given to the monies spent locally but likely to directly flow out of the locality. He submitted Bunnings would not rely upon local suppliers, therefore all money spent at Bunnings would directly flow out of the area, resulting in minimal economic benefit, except for wages and rates. He also submitted that smaller businesses might not be established, as they would not wish to compete with Bunnings, resulting in loss of economic benefit and retail diversity to the area. Further, during the construction phase it is more likely tradespeople would come from larger centres rather than locally.
6. An economic assessment accompanied the application for permit. The Responsible Authority had this assessment peer reviewed[29]. This review similarly concluded that there would be more of an impact on businesses outside the area, although it was acknowledged there would be some impact on Mitre 10, but this was considered a result of direct competition and would not have a negative impact on existing economic policy. The proposal would assist in reducing escape expenditure and provide greater choice and access to hardware/garden products as well as providing employment opportunities. It was however not considered that the stand alone store would detract from existing retail policies.
7. We accept there will be some impact on businesses within the area, particularly to Mitre 10 Torquay as this business is the same as, and will be directly in competition with Bunnings. Whether the impact is a 37% decline in sales as stated by Mr Ainsaar or an 18% loss as estimated by Mr Lee the overall level of retail services available to the community would not decline. Competition is also beneficial, not detrimental, to the community. We find:
   • There will not be an overall adverse impact on all businesses within Torquay. The retail hierarchy may change but will not be undermined. The proposal will not result in a net reduction in the overall extent or adequacy of facilities available to the community.
   • We consider the likely competition with Bunnings between such existing stores as Villa & Hut, Adairs, Provincial Home Living and Matchbox located in the centre of Torquay to be marginal, if at all. Each of these stores specialise in sub-sectors of the hardware/homemaker market.
   • The report assessing the demand for industrial land in Torquay identified the 'continuing and growing demand for home improvement products will increase the market for hardware stores, garden nurseries, and for small manufacturers such as furniture makers, cabinet makers, etc'[30].
   • Whilst the objector/respondents focused on one of the underlying reasons for rezoning of the land to Industrial 3 to ensure surf industry participants did not relocate from Torquay, a range of factors where identified. The approved rezoning anticipates uses other than for surfing.
   • A number of permits have already been issued by the Responsible Authority for businesses in the West Coast Business Park with only one related to the surf industry. Permits approved include for plumbing supplies (Reece), storage, plasterboard supplies, steel supplies and motor vehicle repairs.
   • People from what was identified by the economists as the secondary trade area may still, given the time and distance, choose to go to Waurn Ponds rather than Torquay, particularly as Waurn Ponds offers a wider range of choice not only for hardware. Bunnings Survey data in relation to the Waurn Ponds store indicated customers came from a wide geographical area with, as stated by Mr Lee, over 10% from beyond the Surf Coast, with secondary trade areas extending into Greater Geelong.
   • We accept Mr Lee's evidence in relation to the estimated turnover performance of Bunnings with 65% of sales representing retail turnover as compared to the estimate by Mr Ainsaar of 70% with an expected market share in the main trade area of 19%. We also expect that this figure may be influenced by expected future residential development within the area.
   • We note that there is very little provision of hardware and homemaker retailing within the main trade area with residents typically travelling to Waurn Ponds or Grovedale for major purchases. We accept that with a Bunnings in Torquay there will be a significant reduction in escape expenditure as residents will not need to travel to obtain the range of hardware and the 'potential for this to be exacerbated in the face of impending competition from the Geelong - Armstrong Creek Urban Growth area'.

1. Access to the site will be via the controlled intersection of Beacon Boulevard and the Surf Coast Highway. A separate access from Beacon Boulevard is to be provided for loading with a 6.5m wide lane running south from Beacon Boulevard to Winki Way. The loading area is designed to accommodate 19.0m semi-trailers.
2. 214 car spaces, which include 4 disabled spaces, are to be provided with provision also for 8 bicycles spaces.
3. There is no specific car parking requirement for a trade supplies use. Mr De Young, on behalf of the applicant, submitted there was likely to be a peak parking demand of 167 spaces and the provision of 214 spaces would adequately exceed this expected peak demand. The excess of spaces was he stated a result of the nature of the layout of the site. We note that this will allow for the insertion of increased landscaping that will result in a slight reduction in the number of car spaces (200).
4. The statutory requirement for the proposed development is 22 employee and 13 shopper bicycle spaces. In Mr De Young's view, this is excessive. It is expected there would be 1 employee per 200m² instead of 1 per 500m² and given the nature of the goods sold, shoppers were not expected to come to the site by bicycle.
5. Mr De Young submitted the site is expected to generate up to approximately 270 and 440 vehicle movements during Friday PM and Saturday midday peak hours. In his view, the surrounding road network can adequately cater for the traffic generated by the proposal.
6. We consider the proposed provision of 214 car spaces and 8 bicycle spaces to be appropriate. We accept Mr De Young's evidence that queuing of vehicles is unlikely to result in an impact on Beacon Boulevard, which in his view is wide enough to allow cars to pass. Mr De Young did not consider, as suggested by Mr Cherubin that a slip lane on Beacon Boulevard was necessary.

1. We have considered the draft conditions provided by the Responsible Authority as well as the submissions and comments made by the parties in relation to the conditions.
2. We have adopted the recommendation made by Mr Murphy and incorporated these into the conditions.

1. Trade supplies are an appropriate use within an Industrial 3 zone. Bunnings Warehouses/stores conduct the use of both trade supplies and restricted retail premises. We accept that although such a specific form of trade supplies may not have been anticipated in 2004 the growth of the main trade area has meant that it is now a realistic option for such businesses.
2. The location of a Bunnings Warehouse/store within the West Coast Business Park is an appropriate location for such a use. It is acknowledged that Torquay is rapidly growing and the provision of a Bunnings will benefit the community by providing additional choice and services, assist in reducing escape expenditure that is currently directed to Waurn Ponds and elsewhere, as well as providing for employment opportunities. It may have an impact on Mitre 10 Torquay, a direct competitor, but is not expected to change the retail hierarchy of Torquay.
3. The amended design of the built form along with the recommended additions by Mr Murphy will sit comfortably within the landscaped surrounds of the site and will not detract from or impact upon the entry to Torquay.
4. The decision of the responsible authority will be set aside. A permit is directed to be issued subject to conditions.

• Use and development for trade supplies/restricted retail premises;
• Display advertising signs;
• Provide car parking to the satisfaction of the Responsible Authority;
• Reduce bicycle parking;
• Construct buildings and works in Wild Fire Management Overlay;
• Remove drainage and sewerage easements

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans by Caroline Jarvis TPQ1 Rev D and TPO2 Rev B and plans by WLA 1384 TP1 Rev C, 1348 TP2 Rev C, 1348 TP3 Rev B, 1348 TP4 Rev B but modified to show:

1. Vehicle swept path details for the 19m Semi-trailer at the access to and exit from the service entry in particular the exit back onto Beacon Boulevard; 2. Amended Sign H 'No Entry' signs to the Regulatory Sign R2-4 with a minimum size of 600x600mm;

1. Amended width of the pathway connection to Surf Coast Highway pathway to 2.Om, providing tactile ground surface indicators (TGSI's) as required.

1. A 'No Left Turn' (R2-6(L) Signs at the exits onto Winki Way, including removal of the left turn arrow from the pavement marking.

1. Retention of the side entry function of the pit to be incorporated into the exit from the delivery area,
2. That a 19.0m Semi-trailer can be parked off the carriageway of Beacon Boulevard if the gates to the delivery area are closed.
3. The location of the redundant vehicle crossings to be removed, replaced with barrier kerb and channel and landscape treatment.
4. Any roof top plant and the like and how such will be screened to have minimal visual impact.
5. Introduction of timber panels and timber gable entry on eastern elevation as depicted in Figure 10 in State of Evidence of Barry Murphy November 2010.
6. Introduction of timber pergolas on the north and south elevations as depicted in Figures 8 and 9 in Statement of Evidence of Barry Murphy November 2010 but extended along the eastern elevation of the building to the maximum extent practicable.
7. Additional perimeter car park and pergola planting as depicted in Figure 13 in Statement of Barry Murphy November 2010.

1. Before the development starts a plan of consolidation certified under the Subdivision Act 1988, creating one lot for the development to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions the three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   1. All bearings, distances, levels, street names, lot numbers, lot sizes, reserves and easements;

b. Remove the drainage easement on lots 132-136 PS602894X;

1. Before the development starts a stormwater management plan (three copies) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must ensure that stormwater and drainage discharge from the development site meets current best practice performance objectives for stormwater (Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO 1999)) and must include:
   1. A construction site plan that incorporates the stormwater management measures to be implemented during the construction phase of the development and outlines in detail how stormwater is to be managed, including sediment controls, during both the land development phase and the building phase. The plan should have regard to the Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995). The management controls are to be regularly monitored and maintained;
   2. The incorporation of on-site retention/infiltration, storage and re-use stormwater management techniques to reduce pollutant export

c. Reduce peak discharge from the site to that designed for the estate;

1. Before the development starts, detailed construction plans to the satisfaction of the responsible authority for any road/drainage works associated with the development must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must include:

1. Underground drainage incorporating the recommendations from the Stormwater Management Plan approved under Condition 2 of this response;

d. Removal of the existing stormwater drainage within the site;

1. Line-marking for each car space, access lanes and pavement arrows to denote traffic flow.
2. Removal of redundant vehicle crossings to the site and landscaping of them;

1. All works constructed or carried out must be in accordance with those plans.

1. Before the development starts a construction management plan (three copies) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must address the following matters:

1. Measures to minimise the impact of construction vehicles arriving at, queuing, and departing from the land; 2. Measures to accommodate the private vehicles of workers/ tradespersons;

1. Details of the location of all construction equipment and facilities, including delivery points, storerooms, toilets, temporary offices and workers' facilities;

1. Noise attenuation measures to be put in place to protect the amenity of nearby residents during construction having regard to the EPA Guidelines on Construction and Demolition Noise;

e. Measures to minimise the generation and dispersal of dust;

1. Details of a 24 hour hotline for access to a contact person or project manager accountable for the project and compliance with the CMP;
2. Arrangements for waste collection and other services to be provided during construction;

h. Details of the haul route(s) for transport of excess materials removed from the site and delivery of materials to the site.

1. Inspection of the haul route(s) with a council representative to audit condition of haul route(s) prior to and post construction with any damage identified to be rectified by the contactor at his expense.

1. Before the use starts, the area(s) set-aside for the parking of vehicles1 access lanes and stormwater management as shown on the endorsed plans must be:

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

e. Line marked to indicate each car space and all access lanes

1. Clearly marked to show the direction of traffic along access lanes and driveways to the satisfaction of the responsible authority.
2. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. External lighting of the car park must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.
2. No fewer than 200 car spaces must be provided on the land for the use and/or development including 4 spaces clearly marked for the disabled and 8 bicycle spaces including two staff showers and change rooms.
3. The loading and unloading of goods from vehicles must only be carried out on the land.
4. Within 3 months of the date of completion of the development hereby permitted the site whether occupied or not, shall be landscaped in accordance with the endorsed landscape plan and including installation of an automatic sub surface irrigation system to all garden areas and to car park tree diamonds and the installation of 20 cubic metres of structural soil beneath the pavement for each of the trees in the car park. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
5. The signs on the building must only be illuminated by external floodlights and the lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.

12. The signs shall only be illuminated until 10pm at night.

13. All signs must be located within the boundary of the land.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. Before the development starts an Emergency Management Plan (three copies) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority and CFA. When approved, the plan will be endorsed and will then form part of the permit. The plan must address the following:
   1. Consideration of wildfire risk from Grass Tree Park and how staff and visitors to the site would be managed in such an event.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

• The development is not started within two years of the date of issue.

• The development is not completed within two years of commencement.

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[3] Clause 43.04 Surf Coast Planning Scheme

[5] Perorad Care Pty Ltd v Frankston CC [2004] VCAT 2272; West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224

[6] Perorad Care Pty Ltd v Frankston CC [2004] VCAT 2272 at [18]

[7] Woolworths "Oxygen" Proposals, Report of the Advisory Committee, 25 August 2010 at 39

"...the Oxygen offer will not be substantially different to that which is commonly found in the existing Bunnings stores. Larger percentages of floor areas for white goods and a likely higher standard of in-store amenity appear to be the key points of difference.

[8] [2002] VCAT 451

[9] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529; Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157; Cascone and Vella v City of Whittlesea 11 AATR 175

[10] Radford v Hume CC [2006] VCAT 2662; El Houli v Brimbank CC [2010] VCAT 831; Hall v Kingston CC [2008] VCAT 1060

[11] [2000] VCAT 1880

[12] [2002] VCAT 451

[13] Of 45 stores in Victoria, 17 are located in Industrial zones.

[14] Notice to Admit dated 16 December 2010

[15] Woolworths Limited v Warrnambool City Council [2005] VCAT 2211

[16] Bevendale Pty Ltd v Warehouse Group (Australia) Pty Ltd v Whittlesea City Council [2001] VCAT 2273

[17] Osland v Secretary to the Department of Justice [2010] HCA 24; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd and Another [2008] VSCA 45; (2008) 19 VR 422 at [91]

[18] [2006] VCAT 798 at [11]

[19] Surf Coast Planning Scheme Amendment C6 Panel Report July 2003

[20] Surf Coast Planning Scheme Amendment C6 Ministerial Advisory Committee Report May 2004

[22] Clause 21.08-1 Surf Coast Planning Scheme

[23] Clause 22.05-1 Surf Coast Planning Scheme

[24] Clause 22.05-3 Surf Coast Planning Scheme - the height of buildings in the Torquay North West Industrial estate constructed on lots abutting the Surf Coast Highway should not exceed 8 metres above natural ground level.

[25] Clause 21.02-3 Surf Coast Planning Scheme

[26] Figure 13 Statement of Evidence - Barry Murphy

[28] Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 687

[29] Dr Jeff Wolinski, Renaissance Planning

[30] Torquay North-West Outline Development Plan - Assessment of Industrial Land Requirements, Essential Economics 29 November 2001