The order of the Tribunal is that the decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.

Mr John Cicero, Solicitor. Mr Cicero called Ms Julie Katz, Town Planner as a witness.

1 This application relates to the most appropriate place for the establishment of a village centre to serve a rapidly growing residential community at Epsom on the northern periphery of Bendigo. The application proposes the development of a supermarket, a small number of smaller shop premises, and a convenience restaurant all within a sea of car parking on land fronting the Midland Highway at Epsom. The Responsible Authority and Objectors oppose the application because it would interfere with the establishment of a village centre at a preferred location some 700 metres to the north of the subject land.

2 The subject land falls within a Business 1 zone, and within the zone both a shop and convenience restaurant are permitted uses. Therefore in addition to issues relevant to the actual development, can the issue relating to the strategic location of a neighbourhood village in the Epsom locality be a relevant consideration, and if it is relevant is the application premature.

3 At the commencement of the hearing Mr Montebello applied to amend the permit application by the substitution of amending plans in accordance with notice given as required by the Tribunal's practice requirements. No party opposed the substitution of amending plans, and the Tribunal ordered the amendment of the application in accordance with Mr Montebello's request.

4 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

5 The subject land is an irregular lot located on the east side of the Midland Highway approximately 6.5 kilometres north of the Bendigo CBD and approximately 700 metres south of the intersection of Howard Street with the Midland Highway, the Responsible Authority's preferred location for a village centre. The racecourse creek adjoins the subject land to the east, the land is relatively flat and subject to flooding. An unsealed government road adjoins the subject land to the north, this road terminates at racecourse creek. The land is presently used for the purposes of caravan sales.

6 The Midland Highway in this location supports a number of highway related commercial uses, and some residential development. Development along the highway and in the immediate environs of the highway near the subject land is relatively sparse. The highway is at present a single two way carriageway, but in the longer term the divided carriageway configuration found closer to the Bendigo CBD will be extended past the subject land.

7 The proposal is to develop a quite conventional, outer suburban, shopping complex comprising a supermarket, and a small number (4 to 6) of smaller shop premises in a single building, associated with a separate convenience restaurant. It is proposed to provide 174 car spaces towards the front of the site. Access to the site is to be gained from both the Midland Highway, and the Government Road to the north of the subject land. The land contains some valuable remnant native vegetation which is to be largely retained on a difficult to use rear section of the site directly behind the proposed supermarket. The proposed floor areas are set out below:

8 Both the Department of Sustainability and Environment, and VicRoads, objected to the proposed development. However, in both cases the Permit Applicant was able to reach an accommodation with these referral authorities.

Planning Scheme Provisions & Recent Strategic Planning

9 The subject land is affected by the Business 1 zone, the Land Subject To Inundation Overlay, and the Environmental Significance Overlay (ESO1 - Water Course Protection). Under the zone provisions both shop and convenience restaurant are section 1 or permitted uses. Under the zone provisions and the provisions applying to both the overlays, a permit is required for development (the construction of a building or carrying out of works).

10 Epsom is part of Bendigo's northern growth corridor. Over the last decade, there have been a number of strategic reports dealing with the future development of the corridor. From the perspective of the Responsible Authority this strategic work has lead to the conclusion that there should be a village centre anchored by a supermarket, established in the Epsom area, and that the preferred location for such a village centre is at the intersection of Howard Street and the Midland Highway. The site for the development of a village centre in this location is founded in part by the redevelopment of the Epsom Recreation Reserve. The evolution of strategic thinking in this corridor was described in considerable detail in the submissions and evidence before the Tribunal, I will only attempt to give a brief overview of this history.

11 This study is a reference document in the planning scheme. At the time of the study it was considered that population growth in the corridor would be low. Land fronting the Highway in what was called the commercial core, was promoted as a location for bulky goods, and other large scale highway based uses. The study recommended that the subject land, and the adjoining land within the Business 1 zone, be rezoned to a Business 4 zone.

12 The commercial land strategy was a broadly based commercial strategy for all of Bendigo. The strategy recognised the rapid population growth in the Epsom area and endorsed the establishment of a village centre in Epsom. The strategy included design objectives for new commercial development, and particular objectives in relation to the establishment of the village centre in Epsom. Amendment C60 proposes the incorporation of the policies and strategies of the commercial land strategy into the planning scheme. The panel report relating to Amendment C60 was released within days of the hearing, and it made a large number of recommendations, recommending further strategic work, but made no specific recommendations in relation to the village centre at Epsom.

Northern corridor and Huntley local structure plan 2005 -

13 The structure plan, among things considered the preferred location for a village centre in Epsom. A number of possible sites where compared, the design objectives both general and specific developed in the Commercial Land Strategy 2004 were used as a basis for comparison and as previously indicated the Howard Street site was assessed as being the preferred location. The local structure plan also recommends the rezoning of the subject land and adjoining land in the Business 1 zone, to Business 3 zone. The Responsible Authority undertook quite extensive public consultation in the preparation of the structure plan.

14 The council has a fairly comprehensive vision for a village centre on the Howard Street site, the combination of council owned land, and adjoining privately owned land, results in a site for the village with an area of approximately 7.6 hectares. The council hopes to create an integrated village centre incorporating a supermarket, specialty shops, community facilities, open space and a new primary school. The council has called for expressions of interest in the development of the site. A schematic plan for the development of the village centre formed part of Ms Allen's submission:

15 Amendment C70 proposes the rezoning of the Howard Street land. Amendment C69 proposes the inclusion of the structure plan as a reference document in the planning scheme, and among other things proposes the rezoning of six sites, including the subject land. Both amendments are at an early stage in the statutory process, with Amendment C69 only going on exhibition on the day of the hearing.

16 Mr Montebello having reviewed the planning scheme provisions pithily concluded:

Thus, it is obvious that the relevant controls are development related and not use related. Those issues raised by council and the objectors which relate to development are fair game. Those that relate to the use of the land are not and they are irrelevant.

17 With the exception of VicRoads, the arguments of the Responsible Authorities and the Objectors related almost exclusively to the issue of the strategic disposition of land uses within the northern corridor of Bendigo. (The strategic land use issue) As I will discuss later in these reasons, I do in fact have a number of reservations about the proposed development of the subject land. Nevertheless, it is the strategic land use issue which is of most importance, and therefore a key consideration is whether or not it can be a relevant consideration in this application for review, or is as Mr Montebello argues, is irrelevant.

18 The strategic land use issue in this application is the preferred location for a neighbourhood centre to serve the newly expanding community north of Bendigo. This application is relevant to that issue, because it is broadly accepted by the parties that a supermarket will be the retail anchor around which a neighbourhood centre will develop, and that for the foreseeable future there is only room for one small supermarket in the locality. The Responsible Authority's strategies identify the preferred location for the neighbourhood centre as being approximately 700 metres north of the subject land at the intersection of Midland Highway and Howard Street.

19 The Responsible Authority has clearly developed a considerable body of strategic work to arrive at its preferred strategy for this northern corridor. Nevertheless, from the perspective of the planning scheme this work remains embryonic, because the planning scheme has not yet been amended to give effect to this strategic plan. The embryonic nature of this strategy adds another layer of complexity to the question of whether or not the strategy is a relevant consideration.

20 Both Mr Stokans and Mr Cicero referred me to an earlier decision of the Tribunal[1] in Teac Australia Pty Ltd v Port Phillip City Council [1999] VCAT 122. In the Teac decision the application before the Tribunal was adjourned broadly on the basis that the planning policy for the area was in a state of flux. The Tribunal held that a decision in the particular case would significantly affect the future achievement of the relevant policy which was at the time under active consideration. In effect it was decided that a decision in that matter would be premature and that is a conclusion urged on me by both Mr Stokans and Mr Cicero in this current application.

21 In the Teac case the policy issue "in flux" related to the height of buildings being developed around or near that part of Port Phillip Bay. Height is undoubtedly a development related issue, and in the Teac case a permit was required for development. So therefore I agree that the TEAC decision is support for the contention that a particular proposal may be premature in a context where relevant planning considerations are being actively reviewed. In this particular case the issue remains, is the strategic land use issue at the heart of this application, a relevant consideration, where a permit is only required for development.

22 Travelling backwards through time to the Restricted Business Zone under the MMPS and beyond there has always been a debate within the Victorian planning system, and presumably elsewhere, about the extent to which a distinction should be drawn between use and development controls in planning schemes. In Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445 Deputy President Gibson had this to say about this ongoing debate:

We take the view that whilst we must apply those policies that are specifically relevant to development and built form outcomes, we must do so in a way that supports the overall vision and objectives of the planning policy framework. It is not appropriate to attempt to divide the overall planning scheme vision/objectives for Doncaster Hill into neat and separate use and development categories and say that some are not relevant because this is a development only application. That is an excessively narrow approach and one which misinterprets the purpose of all the zones, overlays and various other provisions expressed throughout the planning scheme, which is:

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

23 Subdivision is a development application, and for at least 15 years the Tribunal has held that the future use and development of the land resulting from the subdivision must be a primary consideration in the decision whether or not a permit should be granted. Relevant decisions of the Tribunal include McHugh and K G Goodison and Associates v Shire of Eltham (unreported 1990/38738), Tee and Adis v Boroondara CC [1999] VCAT 2246 and more recently Merrett v Moira SC [2005] VCAT 93. Indeed, the earlier decisions of this type predated VPP based planning schemes which now include a decision guideline relating to the future use and development of the land, probably in response to this line of decisions.

24 In my view the subdivision cases make it clear that use related issues pertaining to the land itself are relevant. For example if the future use of the land is for dwellings, the capacity of the land to absorb effluent is a relevant consideration. What is less clear is the relevance of the effects of the future use of the land to be subdivided in a neighbourhood or regional context.

25 None of these cases suggest that any consideration is a relevant consideration in an application where for example the only discretion relates to development. In the planning context the rule which applies is commonly known as the National Trust principle. The principle is that the considerations in planning applications must be relevant to the purpose of the particular planning control. The principle arose from a decision of the Full Court of the Supreme Court of Victoria in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592. In more recent times the President of the Tribunal has handed down a decision Victorian National Parks Association Inc v Iluka Resources Ltd [2004] VCAT 20 which is a most useful discussion of the application of this principle in the context of modern VPP based planning schemes. The President found that not only do the National Trust principles continue to apply, they have a valuable role in the administration of planning under the VPP based planning schemes by ensuring a manageable decision making process.

26 In the National Trust case the planning provision which created the discretion, was concerned with the height of buildings, while the objectors were concerned with the preservation of an historic building. The control had a very narrow purpose unrelated to the heritage issue. Height and heritage controls are usually controls over development, nevertheless, the question of what are relevant considerations is not so much that the control is a control over use or development, rather it is the purpose of the control and how widely it can be construed.

27 In this case the development control is part of the Business 1 zone provisions[2]. The zones are in a sense the underlying framework upon which a planning scheme is built and it would be rare for the purpose of a zone and its related controls to be as narrowly focussed as those that might be relevant to an overlay or a particular provision.

28 Nevertheless, in the Iluka case the President found that the purposes of the zone control must be interpreted in relation to the land within the zone[3].

29 In this case the particular area of land in a Business 1 zone is small, it incorporates the subject land, and a small amount of adjoining land to the north and south. Business uses, or more particularly shop uses, usually exist within a functional hierarchy, particularly within neighbourhoods and regions. In this context, I do not think that the relevant land within the zone, is the subject land and its immediate neighbours, but rather land within the zone within a relevant neighbourhood or region including in this case land which is proposed to be included within the zone as a consequence of a planning scheme amendment resulting from a strategic planning process.

30 In retailing, as in most other forms of economic activity, investment decisions are made by individuals or firms who have made market based decisions about the appropriateness of the investment. The planning scheme cannot easily replicate this market based approach, in the normal course should not interfere with this decision making process, particularly where the proposed use is as of right.

31 However, in this case the issue is the establishment of a neighbourhood centre, and:

•

the mix of uses which can be established within the centre,

•

the mix of uses which will surround the centre and usefully interact with it,

•

the infrastructure which supports the neighbourhood centre including the road system, and

•

the location of the neighbourhood centre in relation to the community which it is intended to serve

are issues which are fundamental to the purposes of planning. In many respects these issues arise because here we are dealing with a rapidly developing green fields area on the periphery of a major provincial city.

32 The subject application is only relevant to this broader planning issue because it was argued by the Responsible Authority, and not seriously contested by the Applicant, that a small supermarket will be the anchor upon which a neighbourhood centre is established and that if a supermarket is established on the subject land, then it is highly unlikely another developer would develop a supermarket on nearby land. The issue is essentially one of timing in relation to the pattern of growth in the area.

33 My conclusion is that in any development application the future use or development of the land is a relevant consideration. Where the development control arises from the zone provisions, then relevant considerations must relate to the purposes of the zone control and the land within the zone. Because the zones are fundamental building blocks upon which planning schemes are based zone purposes would usually encompass a broader range of considerations than would be the case for an overlay control or a particular purpose provision. In the case of the Business 1 zone, and shop use in particular, there is a functional hierarchy relevant to neighbourhoods, sub regions and regions which may on a case by case basis be a relevant consideration.

34 It follows from the above conclusion the I am of the opinion that the strategic land use issue in this case is a relevant consideration.

The proposed development and the broader strategic context

35 Having concluded that the strategic land use issue in dispute in this application can be a relevant consideration in the decision that must be made, then one could reasonably conclude that the application is premature because the extensive planning process embarked upon by the Responsible Authority has not yet been resolved. However, it is argued on behalf of the Applicant that the Responsible Authority has a conflict of interest, because it is a land owner affected by the outcome, and that the planning scheme amendments it proposes are or could be seen as self serving.

36 The Responsible Authority does have a conflict of interest of sorts. However, in my view this does not necessarily indicate that their strategic vision for this locality is flawed, it may be the case that the Responsible Authority is using the availability of public land to leverage what will be a desirable planning outcome for the local community. Ultimately, the planning scheme amendments on exhibition, are part of the process to resolve this question.

37 Nevertheless, I think that I have to turn my mind to the relative merits of the Responsible Authority's preferred outcome, vis a vis that of the permit applicants. It would be manifestly unjust to refuse or adjourn an application on the basis that its premature, if the competing planning vision was patently flawed or inferior.

38 In this particular case I believe that there is a reasonable prospect that the various planning processes underway will ultimately support the Responsible Authority's conclusion that the Howard Street site is to be preferred, because:

•

It is a larger site upon which it should be possible to integrate the proposed retail facility with other community and recreational facilities including the local primary school;

•

The size of the site should allow for expansion of the facilities provided, to meet the needs of a growing community;

•

The Howard Street site is better located in relation to the residential community it is designed to serve;

•

The Howard Street is better located in relation to the road network and is likely to be more accessible, to motorists, cyclists and pedestrians.

39 It is my conclusion that in respect of the broader strategic context, the proposed development is premature.

40 The submissions at the hearing focussed heavily on the broader strategic context, and in my view the site responsiveness of the proposed development was not carefully considered. There are two aspects of the proposed development which are of concern to me, the first is the proposed landscape setting, and the second is the impact of the inundation of the site.

41 The proposal is for a fairly typical big box type detached shopping centre set within a sea of car parking and common to newly developing residential areas. In my experience it is rare for such shopping centres to make a positive contribution to neighbourhood character and this is usually a consequence of the failure to provide an appropriate landscape setting for what are relatively utilitarian buildings.

42 Across the frontage of the site there is a wide road verge which includes some substantial remnant vegetation. The design relies heavily on this road verge to create a landscape setting for the proposed shopping centre. There are only very narrow garden strips (1.0 and 0.5 metres wide) between the car park and the front boundary of the site. Opportunities for other landscaping within the car park area, other than for trees in tree grates in the car park itself, are very limited.

43 Even with the existing broad road verge, I doubt that there is sufficient space for landscaping in the current design to provide a pleasant setting for future users of the shopping centre. However, my primary concern is that when the highway is duplicated, as it is a short distance to the south, then the road verges will be quite conventional, relatively narrow, urban road verge. When this happens the deficiencies of the on site landscaping will be evident. It is true that there are some commercial uses fronting the Midland Highway in this locality with very limited landscaping provision, however I do not accept that these developments are a model for acceptable development on the subject land.

44 The land is subject to inundation. The flood plain managers were content with the development provided that the floor levels of the proposed buildings were at least 300 millimetres above the 100 ARI event and the car park level was at least 200 millimetres below the flood level of a 100 ARI event. Mr Montebello submitted that in a 100 year event water depths across the site would be in the order of 300 to 350 millimetres.

45 Mr Montebello relied on the decision of the Tribunal in Gisborne Superfresh Pty Ltd v Macedon Ranges SC [2003] VCAT 1580, in support of his contention that the Tribunal has allowed the development of supermarket and speciality shops on land subject to inundation. I agree that this decision supports the contention that within reason land within a business zone, which has historically been used for commercial purposes, can be developed for new commercial purpose, including a supermarket even if it is subject inundation.

46 However, in the Superfresh case the proposal was for a new supermarket on the edge of an established town centre which contained other supermarkets and other retail premises.

47 In this case we are dealing with a new shopping centre for a newly expanding residential community. If the subject land is inundated, then this local community is denied access to local retail facilities until the flood subsides. On one hand it can be said that this hardly a fatal consideration, Epsom is on the edge of Bendigo a major provincial city, and there are other retail facilities in Bendigo. However, one must ask the question, is it sensible to establish a new shopping centre for a newly developing residential community, on land which is subject to inundation.

48 During the course of the hearing I highlighted both these issues, and in relation to the landscape issue, I indicated to the Applicants that if I regarded it as an issue potentially fatal to their application then I would give them a further opportunity to address me on that issue, and perhaps to offer further solutions to alleviate my concerns. However, having regard to my conclusions in relation to the proposal in the broader strategic context, I see no purpose in seeking further submissions on this issue.

49 It is my conclusion that both these considerations, that is the opportunities to create a landscape setting for the proposed development, and the fact that the land is subject to inundation, militate against the grant of a permit.

50 Mr Montebello is correct this is a development application. How should the development be characterised for the purpose of decision making under the planning scheme? In my opinion it is proposed to develop a small local shopping centre encompassing uses which are permitted in the business 1 zone. This more purposeful or functional characterisation of the development is to be preferred over a more general description of the development as being development for the purpose of shop.

51 I commented above that the proposal is for what has been for some time a fairly conventional design solution for a minor shopping centre. I have always had some reservations about this particular design solution considering theses shopping centres one of the bleaker aspects of newly developing suburban areas. It seems to have been accepted that this design solution was an inevitable consequence of the almost total reliance on motor vehicles in such areas.

52 However, this case has forced me to think about the role of shopping centres at the local level, and I have reflected upon my local shopping centre and the roles it fulfils in the local community. In my local shopping centre:

•

The centre is directly connect to the surrounding road and foot path system and nearby residential development,

•

The centre is easily accessed by the elderly community even those on walking frames, or using electric scooters;

•

The centre provides a reasonably complete range of convenience shopping;

•

The centre provides related community services, there is an optometrist, a hairdresser, a doctor, etc.

•

At lunch time the shopping centre is crowded with people employed in the local area who come to buy their lunch do their own shopping, or to meet with friends or colleagues or business associates and have lunch in one of the local cafes.

•

The cafes and the inevitable outdoor eating areas are crowded with young mothers with small children, neighbours walking their dogs, or cyclists returning from their Saturday morning ride.

53 My shopping centre is a relatively conventional strip shopping centre, with some perhaps advantageous features, ie:

•

An attractive group of buildings and street trees, although at footpath level the shopfronts are the typical hotch potch that develops over time;

•

There is angle parking off a service road compensating for the complete absence of any public off street car parking;

•

There are 5 metre wide footpaths.

When the 19th century subdividers developed my shopping centre, they could not envisaged how it would evolve to meet the needs of my local community in the 21st century. What they did provide, probably unintentionally, was a robust urban design solution which has been capable of evolving to meet these needs.

54 If one considers the present design with its 2 metre wide "footpath" along the front of the shop premises set in a sea of car parking relatively disconnected from the nearby road and footpath systems and the residential areas which it serves, one can easily ask the question how can this urban design solution possibly evolve to achieve any of the social benefits that I see evident in my local shopping centre.

55 I accept that I can be easily accused of being a grumpy old town planner but it is my view that a provision of a fast food outlet with drive through facility in the middle of the car park is not the solution to my criticism of this design for a local shopping centre.

56 These are concerns which have occurred to me since the hearing of the application. Had I been of the view that the issues considered and argued during the course of the hearing did not constitute a basis for affirming the decision of the Responsible Authority, then I would have been obliged to call for further submissions, posing a series of questions i.e.:

i

Having regard to the attributes of a successful local shopping centre discussed above, can the shopping centre proposed in this application be reasonably regarded as adequately performing its function for the newly developing residential community in the area?

ii

If the proposed shopping centre cannot adequately perform the functions of discussed above, will its establishment be an obstacle to the creation of another shopping centre serving the same residential community, which will provide this range of facilities and services.

57 I think it is worthwhile commenting on the approach I am adopting here and its relevance to the broader jurisdictional issues raised by this application for review:

•

I am embarking upon what is a functional assessment of the proposed development. I consider that this is a relevant approach. Indeed, it is, for example, what we do when we assess applications for dwellings under ResCode, when we consider issues such as energy efficiency, solar access, the provision of private open space and its relationship to interior living areas, the provision of storage for future occupants etc etc etc.

•

I think it is important to ask the question I pose in (ii) above, because in a market economy the important issue is not that a particular developer risks wasting his or her investment in a badly designed shopping centre, but whether or not that badly designed shopping centre has consequences for its users or the broader community. It is the goal of the Planning Policy Framework to manage the use and development of land to achieve a net community benefit.[4]

•

It occurs to me that this functional approach to the assessment of the proposed development is in a sense "bottom up" way of approaching the strategic land use issue. In essence one is asking how will this development function in its local or community context, and this in turn invites a broader strategic planning assessment. Clearly, the extent to which any development raises significant strategic issues, is highly dependent on the nature of the development itself.

58 One must accept that in newly developing areas, there will be a considerable period during which the range of facilities and services available to this emerging community are less than those commonly available in more established settings. The concern I have is that this almost ubiquitous design solution is fundamentally flawed. Are we creating urban areas in which at some future date there will have to be major surgery to create a space in which there can develop a sense of community like that created by shopping centres which were developed during the first half of the 20th century and earlier. Is such an outcome consistent with the purposes of planning set out in the act and the planning scheme.

59 Having regard to my discussion of the issue surrounding the broader strategic and size specific context of the proposed development, it is my conclusion that the decision of the Responsible Authority should be affirmed and no permit granted.

[1] Mr Howard Terrill and I were the Tribunal in the Teac case.

[2] Clause 34.01-4, Greater Bendigo Planning Scheme

[3] Victorian National Parks Association Inc v Iluka Resources Limited [2004] VCAT 20 Para 43

[4] Clause 11, Greater Bendigo Planning Scheme