The council submits that the temporary nature of the coffee cart does not support the continued growth of the activity centre, does not provide a differing trade from that already occurring and will detract from the 'coherence and ambiance of the Sassafras township'. The council does acknowledge that it is a 'complimentary use' and could be said to marginally advance the viability of the centre, that access is generally acceptable and that there is sufficient on-street parking.

The applicant submits that clause 11.03-1S of the Scheme promotes growth and diversification within activity centres, including support for small-scale uses that enhance accessibility to goods and services, reduce private vehicle use, and support local economies. In this way, it submits that the coffee cart will meaningfully contribute to the vibrancy and function of Sassafras as a small neighbourhood activity centre, as it is defined in clause 02.03-1 of the Scheme. It submits that

These centres serve the local catchment and may also cater to the tourist market, as is the case in Sassafras. The coffee cart offers a modest but valuable contribution to food and drink services for visitors, activating the site and reinforcing the town's tourism identity.

The council submits that the coffee cart itself is inconsistent with the landscape character as follows:

Many of the objectors have cited the impacts of the proposal on the unique town feel and landscape and suggest that the proposal will be at odds with the impression of Sassafras as a quaint township with a charming atmosphere. From this perspective it is readily evident how the addition of a food van on a premises with an artisan community feel would be at odds with the residents of the town and detract from its visual harmony and character. The proposal does not align with the traditional and picturesque look of Sassafras.

The Policy consideration is to protect and enhance significant landscapes that contribute to the character and identity of environments.

Sassafras is renowned for its quaint, charming atmosphere, characterised by its established brick-and-mortar shops and the cohesive aesthetic of our town centre. Introducing a coffee cart, a moveable and temporary structure, is unlikely to advance the landscape character of the area.

The applicant submits that the coffee cart will not conflict with the established character of Sassafras or detract from landscape values, citing the limited nature of the proposal and its inclusion in the uses permitted under the SCO14 which was introduced following a planning panel process. The applicant submits that it is relevant to note that the use is permitted despite the GWAZ1 zoning of the land.

The applicant submits that it will be located on land that is already used and developed for commercial purposes and that it will not intrude into sensitive landscape areas or the surrounding rural setting.

The applicant submits that clause 12.05-2S seeks to protect landscapes that contribute to character and identity and that the land the subject of this application is located within the Sassafras township boundary and does not contain any identified significant landscape features.

The applicant cites the council's delegate report as follows:

The proposal is low key... the site itself is used commercially and provides an open area for patrons. At 10 square metres, it is unlikely to be obtrusive to the urban design characteristics of the area.

...the coffee cart's modest dimensions...ensure it will remain visually recessive and subordinate to the existing built environment... Rather than detracting from township character, the cart will provide low-scale activation and visual interest to an otherwise underutilised portion of the site. It introduces a light-touch, context-appropriate use that supports local tourism and community interaction in a manner consistent with the commercial intent of SCO14.

The council submits that the proposal does not support the following decision guidelines in clause 65 of the Scheme:

• The effect on the environment, human health and amenity of the area.

In making these submissions, the council considers that the proposal does not respect the GWAZ1 land within which it is located or the significant landscape character of the area, and queries the proposed disposal of wastewater and whether that risks inappropriate and significant effects on water quality and/or contamination.

The applicant submits that the proposal reflects an appropriate interim activation of commercially used land within a township setting, and aligns with the intent of the SCO14 which allows limited commercial uses within this GWAZ1. It notes that the waste will be removed daily and that the council's health department expressed no objection, and that no other adverse amenity impacts are anticipated. The applicant submits that 'The cart promotes economic development, tourism, local employment, and activates an otherwise underutilised space without compromising safety, character, or landscape values'.

1. As set out earlier, the SCO14 has a single decision guideline - to consider whether the proposal is consistent with the purpose of the incorporated document. The purpose of that document is to allow a low scale mix of uses and development to operate on the site to support the local and tourist offering in Sassafras and to restrict the use of land to those uses where the risk to life and property from bushfire can be reduced to an acceptable level.
2. The SCO also clearly explains that specific controls may allow land to be used or developed in a manner that would otherwise be prohibited or restricted.
3. It is in this context that the application must be considered.
4. The coffee cart is a low scale use which will support local and tourist offering in Sassafras. Planning permission is not triggered under the BMO and the conditions in the incorporated document concerning design of buildings in the context of the BMO are not relevant to this application. However, a permit condition must still be included requiring a bushfire emergency management plan to be prepared and implemented with respect to the use.
5. Clause 02.01-3 provides that:

Tourism related businesses are significant contributors to local employment in Yarra Ranges in particular in Green Wedge areas.

1. While this is a low-scale use it is consistent with economic and tourism objectives and is well suited to this location. The following internal referral response from within the council provides a comprehensive explanation of this alignment:

1. The objective and strategies of clause 12.05-2S are:

Objective

To protect and enhance significant landscapes and open spaces that contribute to character, identity and sustainable environments.

Strategies

Ensure significant landscape areas such as forests, the bays and coastlines are protected.

Ensure development does not detract from the natural qualities of significant landscape areas.

Improve the landscape qualities, open space linkages and environmental performance in significant landscapes and open spaces, including green wedges, conservation areas and non-urban areas.

Recognise the natural landscape for its aesthetic value and as a fully functioning system.

Ensure important natural features are protected and enhanced.

1. This proposal does not conflict with this clause and is located in an established commercial area of the small neighbourhood activity centre, and will not affect any significant landscapes. It comprises a single moveable vehicle and will not be obtrusive in its surroundings or detract from valued characteristics of the Sassafras township. The council confirmed its view, and I agree, that the development element of the proposal, being the construction of a gate within the existing fence, will remain consistent with the style of the existing fence and does not offend any policies within the SLO or clause 12.05-2S.
2. The council notes, with respect to activity centre policy in clause 11.03-1S, that:

The intent of the Policy direction in complementing Clause 02.03-1 is to ensure the vibrancy of Activity Centre and to ensure that their (activity centres) development is in line with their hierarchal significance.

1. Clause 02-03-1 includes the following strategic directions for activity centres:

Locate retail, commercial, entertainment, community services and facilities and other intensive employment generating activities within established activity centres.

...

Discourage activity centre functions in out of centre locations.

...

Support well-designed and integrated activity centres that service the needs of local residents and visitors and contribute to a sense of local identity.

1. Having regard to the purpose and decision guideline of the SCO14 and the relevant policies in the Scheme, I concur with the council delegate report comments as included in the applicant submissions:

The proposal is low key... the site itself is used commercially and provides an open area for patrons. At 10 square metres, it is unlikely to be obtrusive to the urban design characteristics of the area.

1. With respect to waste and the relevance of clauses 02.01-5 and 65, I am satisfied that the waste from the coffee cart can be managed acceptably and the use is unlikely to detrimentally impact the area or environment. Again, the council delegate report confirmed that it would operate in a manner that is no different to any other mobile coffee cart and that the health department is supportive of the proposed method of waste disposal. In any case, a permit condition will also be included, and is required by the incorporated document to be included, to ensure there is a waste management plan prepared to the satisfaction of the council.
2. In summary, I find that this proposal is for a use that will contribute to both the local and tourist economy and retail offering, even if in a minor way, is located within an established activity centre in an established commercial location and will not affect significant landscapes in the area. It is a proposal that is supported by the purpose of the SCO14, will not conflict with the overarching green wedge nature of the area, and the relevant conditions of the incorporated document can be included in a planning permit.

1. Consistent with the discussion of permit conditions at the conclusion of the hearing, I have removed the conditions pertaining to legislation other than the PE Act, which are regulated under other legislation. Those conditions are not relevant to the planning permission granted in accordance with the PE Act and Scheme.
2. I have also included conditions 4, 5 and 6 of clause 6.0 of the incorporated document, as noted earlier, and made amendments to other conditions as discussed during the hearing.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Use of land for take away food premises in the Green Wedge A Zone

Construction of a fence in the Significant Landscape Overlay, Schedule 1.

1. Before the use 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 form part of the permit. The plans must be drawn to scale with dimensions and a digital copy must be provided. The plans must be generally in accordance with the plans submitted with the application (Plans prepared by Millar | Merrigan, dated April 2024 and referenced as Revision 3) but amended to show:

(a) Maximum dimensions of the coffee cart.

(b) The temporary vehicle crossing relocated to align with the chamfered property boundary line.

(c) Any requirements introduced following the endorsement of the Bushfire Emergency Management Plan, in condition 7.

(d) Any requirements introduced following the endorsement of the Wastewater Management Plan, in condition 6.

1. The development and use of any land or building or part thereof as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
2. The use shall be always contained within the site boundaries.
3. The use must not operate outside the following days and times:

(a) Monday to Sunday, between 7:00am and 8:00pm (including Public Holidays).

1. Except with the written consent of the responsible authority, loading and waste collection associated with the permitted use shall occur within the site boundaries.
2. Before the use starts, a Wastewater Management Plan must be prepared to the satisfaction of the Responsible Authority. When approved, the plan must be endorsed and will form part of the permit. Once endorsed, the Watewater Management Plan must be implemented while the use exists.
3. Before the use starts, a Bushfire Emergency Management Plan must be prepared to the satisfaction of the Responsible Authority and endorsed by the Country Fire Authority. Once endorsed, the Bushfire Emergency Management Plan must be implemented while the use exists.
4. The use operating on the site must close on days of Severe, Extreme and Code Red fire danger ratings as declared by the relevant fire authority.
5. The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority and the relevant fire authority on a continuing basis. This condition continues to have force and effect after the use/development authorised by this permit has been completed.
6. No advertising sign other than those allowed in accordance with the Planning Scheme can be erected on the site without a planning permit from the Responsible Authority.
7. All external lighting provided on the site to be switched off outside operating hours.
8. The use must be managed so that the amenity of the area is not detrimentally affected, through the:

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

(b) appearance of any building, works or materials;

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

(d) presence of vermin.

1. No external sound amplification equipment, loud speaker, siren or other audible signalling device will be installed on the land.
2. Noise emissions from the proposed development must not exceed the limits set out in the Environmental Protection Authority Guidelines for Noise from Industry in Regional Victoria (NIRV).
3. All security alarms or similar devices installed on the land must be of a silent type to the satisfaction of the Responsible Authority.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit.

(b) The development is not completed within four (4) years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition

1. This permit as it relates to use will expire if the use does not start within two (2) years after the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the period referred to in this condition

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] It is noted that the council has no objection to the aspect of the proposal concerning a gate to be inserted into the existing fence.

[3] As long as it is not used in conjunction with the other uses outlined in clause 5.0. There was no suggestion that the use was proposed in conjunction with any of those uses.