Freeman Tecoma Pty Ltd v Yarra Ranges SC [2009] VCAT 2457

1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following persons are joined as parties to the proceeding: Y van Osten, R Smith, A Redsell, J Georgiou, M Georgiou, Y Leeman, G Wansborough, S Meredith, M Carey, E Crow, P Barnes, K Rook, L Bucci, M Pepers, A Zanolla, D Seivers, C & P Hermann, Z Powell, S & N Gale, S Wood, L Miksa, S Graham; E Spencer; R Leslie; K Simpson and T Gough.
2. Pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the plans identified as
   • (a) PD 101, PD 102, PD 103, PD 104, PD 201, PD 301, PD 401, PD 16 and PD 17, all issue A, prepared by John Armsby Architect and dated 25/08/08; and
   • (b) The 'Landscape Masterplan' and the 'Elevations and Details' DWG No: 308066 LD MP 02, prepared by Tract and dated 10.08.09

1. The decision of the Responsible Authority is affirmed.
2. In application YR-2008/816 a permit is not granted and no permit is to issue.

Mr Chris Townshend SC instructed by Aitken Partners. Mr Townshend was assisted by Mr Jason Kane of Counsel.

• Mr Andrew Biacsi, Town Planner, of Contour Consultants Australia.
• Ms Kate Partenio, Traffic Engineer, of GTA Consultants.
• Mr Dieter Lim, Landscape Architect, of Tract Consultants Pty Ltd.
• Mr Peter Fearnside, Acoustic Engineer, of Marshall Day Acoustics.
• Mr Robert McGauran, Architect, of McGauran Giannini Soon Pty Ltd.

Evidence was called from Mr Craig Czarny, Urban Designer, of Hansen Partnership.

Mr M Vegt, Senior Road Access Planner, for VicRoads.

Mr Adrian Atkins, Town Planning Consultant, on behalf of Y van Osten, R Smith, A Redsell, J Georgiou, M Georgiou, Y Leeman, G Wansborough, S Meredith, M Carey, E Crow, P Barnes, K Rook, L Bucci, M Pepers, A Zanolla, D Seivers, N Lu and C & P Hermann.

M de Bree, B Crisp, J Tenner and A Dealy on behalf of the Tecoma Village Action Group Inc.

Construction of a retail development comprising of a supermarket, two shop tenancies and associated car parking. Floor areas of 1977m² for the supermarket and 154m² and 127m² for the smaller shops are proposed. Both of the shop tenancies will have frontage to Burwood Highway, as will the lobby area of the supermarket. A total of 117 car spaces are to be provided underneath the building, with access to the parking area being provided from both Burwood Highway and Sandells Road. A further 3 staff car parking spaces are to be located in the north-west corner of the land, to the rear of the loading bay.

At the Burwood Highway frontage, the height of the development is in the order of 7.3 metres. Due to the fall of the land, this height increases to in excess of 11 metres at the northern elevation. The loading bay is an exception to this as it is proposed to have a height of 7.6 metres. Setbacks from the northern boundary generally range between 6.5 metres to 11 metres. Adjacent to the south-west corner of the property at 89 Sandells Road, this setback reduces to approximately 2.5 metres. A landscape buffer is to extend along the northern boundary and part of the eastern boundary which interfaces with the residential properties. This width of this buffer varies between 4.8 metres to 11 metres at its widest point.

Clause 34.01-4 - construction of buildings and works on land within a Business 1 Zone.

Clause 44.06-1 - construction of buildings and works associated with a retail premises on land within a Wildfire Management Overlay.

Clause 52.02 - alteration or removal of an easement.

Clause 52.06 to reduce the car parking requirements associated with the use of the land for the purpose of a shop.

Clause 52.29 to create or alter access to a road within a Road Zone Category 1 (Burwood Highway).

The review site is located on the north side of Burwood Highway, Tecoma, between Sophia Grove and Sandells Road. The land is an irregular parcel comprised of four (4) allotments which have a combined area of 3733 square metres. A frontage of 76 metres is presented to the Burwood Highway. Part of the property is vacant, with the remainder being occupied by three (3) buildings accommodating a restaurant and retail/commercial uses. At the rear of the site is an at-grade car park. Access to the site from Burwood Highway is via a carriageway easement which extends along the property's western boundary. Access from Sandells Road is similarly via a carriageway easement which has an east-west alignment. The carriageway easements are in favour of the Council and are therefore available for use by the public. Being located on a ridgeline, the land slopes from south to north and displays an approximate 9 metre fall to the north-west corner.

The commercial centre of Tecoma extends along the northern side of the Burwood Highway and encompasses the review site. To the west is a commercial development comprised of five (5) tenancies. Occupancies include an office and restaurant. Three (3) of these tenancies are oriented in an easterly direction and face the review site. To the east is a part single storey and part two-storey building situated on the north-west corner of Burwood Highway and Sandells Road. This development is occupied by a video store and an opportunity shop. The centre extends further east of Sandells Road along Burwood Highway with a mix of small retail and service premises.

To the north is residential land which is located within the Low Density Residential Zone. Directly adjoining the site are a single storey two-unit development, a single dwelling and a vacant allotment. Further north are a single storey multi dwelling development and detached single dwellings.

Located to the south, on the opposite side of Burwood Highway are a medical centre, community centre, a petrol filling station, the Tecoma Primary School and further residential development in the form of single dwellings.

Inspections of the site and surrounds were undertaken both prior to and after the hearing.

1. Tecoma Freeman Pty Ltd proposes the construction of a retail development comprising of a supermarket, two shop tenancies and associated car parking. The Yarra Ranges Shire Council failed to decide upon the permit and, as the permit applicant lodged this proceeding requesting the Tribunal to direct the issue of a permit, the Tribunal must decide if a permit should be granted.[2]
2. Subsequent to the lodgement of the Application for Review, the Council considered the permit application and determined to deny its support for the proposal on grounds relating primarily to policy, design and built form and impacts on adjoining residential properties.
3. Local residents oppose the development on similar grounds, with the additional concerns relating to the car parking and traffic impacts of the proposal.

1. At the commencement of the hearing, applications were made to have a number of persons (principally those represented by Mr Atkins) joined as parties to the proceeding. There being no objection from any of the parties, we joined these persons pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Mr Townshend made application to substitute amended plans for the application plans. While not objecting to the substitution of the plans, Ms Marshall raised concerns that the plans had not been circulated to all persons originally notified of the planning application.
3. Mr Townshend advised that this had been an oversight that had subsequently been addressed by the provision of the plans to these persons and that the time for persons to lodge Statements of Grounds in response to the amended plans would expire during the course of the hearing. He submitted that there was therefore opportunity for such persons to participate in the hearing if they so desired.
4. We agreed to substitute the plans pursuant to Clause 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and advised that, if the need arose, we would allow any persons who wished to be heard on the basis on the amended plans to participate in the hearing.

WHAT IS THE POLICY AND STRATEGIC CONTEXT WITHIN WHICH THE APPLICATION IS TO BE ASSESSED?

1. Given the context of the site, being located in the foothills of the Dandenong Ranges, a complex matrix of planning policies and strategies are relevant to the assessment of the proposal. These were comprehensively documented in the submissions of Ms Marshall and Mr Townshend, and also in the evidence of Mr Biacsi. Rather than re-state all the policies and strategies, we will instead refer to the main policies and policy themes which are of importance to the consideration of this proposal.

1. In summary, the State Planning Policy Framework (SPPF) promotes the following:
   • Consolidation of the existing urban area to reduce the outward expansion at the metropolitan fringe and make greater use of existing infrastructure, services and transport networks.
   • Increased development of identified activity centres as key locations for housing, commercial activity, community facilities and employment. Identified benefits include reducing reliance on motor vehicles, encouraging economic activity and business synergies, providing a focal point for communities and supporting the Principal Public Transport Network.
   • Protection of the environment, including management of water, drainage, noise abatement and energy efficiency.
   • Economic development including the objective of concentrating major retail developments into activity centres (including strip shopping centres) which provide a range of land uses and are highly accessible to the community. The policies encourage developments which meet the community's needs for retail and other services and provide net community benefit in relation to accessibility and efficient infrastructure use.
   • Integration of land uses with transport routes and providing adequate access to developments.
   • Built form and urban design outcomes which take into account the natural, cultural and strategic context of the location, contribute positively to local character and enhance the public realm.
2. Given the role of the Tecoma Village as a neighbourhood activity centre, it is appropriate to identify the policies as they apply to these types of centres. This is particularly so as the role of the centre, and its development, was the subject of detailed submissions by the parties.
3. Relevant Strategies of Clause 12.01-2 include ensuring that these centres have a mix of uses to meet local community needs, are accessible to the local population by walking and cycling and are an important community focal point.
4. Local expression to these broader state-wide policies is found within the Local Planning Policy Framework of the Planning Scheme.
5. The Municipal Strategic Statement (MSS) at Clause 21 commences by drawing reference to the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan, which is currently administered under the Planning and Environment Act 1987. Relevantly, a key policy direction is that development be contained to ensure that it does not prejudice the natural resources and amenity of those who live there, and those who visit the area for recreation.
6. The 'Land Use' element of the MSS identifies Tecoma as being within the Foothills Residential Areas, together with Belgrave, Upwey, Montrose and Mount Evelyn. In relation to these areas, Clause 21.04 states:

The Foothills Residential Areas provide for residential living that is integrated into an environmental setting characterised by an extensive tree canopy, including remnant vegetation and mature exotic gardens. Located in the southern parts and lower slopes of the Dandenong Ranges many of these areas are visually prominent when viewed from other parts of the Shire and surrounding areas.

There is only limited potential for more intensive development in these areas if their established character is to be retained. Shopping facilities and other services are not as comprehensive as those situated in the more urban parts of the Shire.

1. Of particular relevance to this application are the objectives and strategies that relate to commercial development and use. These are detailed at Clause 21.04-2, which identifies the need to consolidate commercial uses in these areas. The objective of this Clause is to promote the future growth and prosperity of the Shire. It is policy that:
   • Commercial centres are the preferred location for retail, business and community services and encroachment of these uses into other areas be discouraged.
   • Any proposed land use reinforces and enhances the established role of the centre.
   • Proposed uses be located on sites that can provide adequate car parking without compromising the character and appearance of the built and natural environments.
   • Traffic generated by a proposed use be able to be accommodated without compromising the functioning of the centre or detracting from the residential amenity of the surrounding area.
   • Shops and business uses in the core area of the centre provide a continuity of retail display windows at ground floor level.
2. Also of relevance, given that the construction of a new development is proposed, is Clause 21.06 which addresses Built Form within the municipality. Specifically in reference to commercial centres, a key issue is their distinctive characteristics that contribute to the identity of the local community. It is also noted that the design and layout of development in commercial centres affects their level of accessibility, safety and convenience for users. Objectives are directed at promoting proper siting and design; and providing well designed and integrated commercial centres that provide a range of retail and business facilities to meet the needs of local residents and tourists. Relevant strategies include:
   • Encouraging the siting and design of development to respond to the characteristics of the site and surrounding area.
   • Designing new development to be compatible with the established character and built form, or with surrounding commercial development.
   • Minimising the intrusion of traffic movements associated with the centre into adjoining residential streets.
3. Clause 21.06 states that, when considering applications for commercial buildings and works, it is policy that:
   • The building setbacks, height, site coverage, design and scale of the proposed development be responsive to any established environmental and built form character of the centre and streetscape characteristics, and protect the amenity of nearby residents.
   • New development on sites adjoining residential areas protects established residential amenity through the provision of appropriate building design, setbacks and landscaping which are compatible with the scale of nearby residential development.
   • Landscaping be provided where appropriate to reinforce any established image or identity for the area, or the landscaping theme characteristic of the centre.
4. Clause 21.07 - 'Landscape' - has the objective of retaining and protecting the scenic landscapes, rural and green wedge character and special environmental features of the Shire. It is policy that all development be designed and sited to avoid prominent ridgelines, hill tops and other visually exposed sites, and be unobtrusive in the surrounding landscape.
5. The only Local Policy of relevance is Clause 22.05 which addresses vegetation protection. This policy is aimed primarily at the protection of mature and/or remnant vegetation and has limited application in the circumstances of this case.
6. In summary, therefore, the policy frameworks of the Planning Scheme promote appropriate development within the established commercial centres to enhance and consolidate their role as key focal points for the community; and require that all development be sited and designed in a manner which is sensitive to the landscape character of the municipality.

Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan

1. Clause 12.09 of the SPPF requires the Responsible Authority (and, upon review, this Tribunal) to have regard to a number of reference documents, as relevant. The Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan ('the Regional Strategy Plan') is one such document.
2. In considering the provisions of the Regional Strategy Plan, we note that Clause 53 - Upper Yarra Valley and Dandenong Ranges Region Provisions - does not apply to the subject application as the buildings and works are exempted by virtue of their location within the Business 1 Zone[3]. Notwithstanding, regard may be had to the Regional Strategy Plan as part of the consideration of the SPPF.
3. The overarching key policies, objectives and strategies of the Regional Strategy Plan as they apply to this proposal may be summarised as follows:
   • State Government policy aims to contain urban development to a level compatible with conservation of the Region's environmental features and high amenity standards.
   • There will be only limited township expansion, with development being contained within identified areas. Change should be managed to achieve a balance between protecting the environment and providing the necessary economic and social infrastructure to service the needs of the community and visitors.
   • Development in townships is to be compatible with the special characteristics of these areas.
4. More specifically, the Regional Strategy Plan includes objectives for commercial centres and states that the planning and development of a retail/ commercial centre must not prejudice the designated role of the centre. The objectives include promoting effective use of land and buildings; creating attractive centres; encouraging clustering of compatible/complementary uses in defined zones; providing active street frontages; and incorporating appropriate landscaping. Significantly, planning and development of a centre must seek to be consistent with the centre's projected future roles and the characteristics of its trading area, and to meet the needs of its catchment population.
5. Further objectives relate to providing appropriate pedestrian and traffic movement and car parking; protecting significant buildings and structures; and achieving a pleasing physical environment.
6. Of particular relevance to this application are objectives relating to the character of commercial centres, which refer to ensuring that design and height of any new development within each centre is sympathetic to existing buildings; and that buildings harmonise in character and appearance with adjacent buildings and with the character of the area.
7. Under the Regional Strategy Plan, as it is not identified as a 'Centre of Regional Significance', Tecoma Village is, by default, a Local Centre. The management policies for such centres are aimed at fulfilment of their primary role in providing for the daily convenience needs within neighbourhoods. The planning and development of these centres is to protect and enhance pedestrian and environmental aspects and minimise adverse impacts on adjacent residential areas and upon local traffic movements. The policies address the improvement of the range of opportunities for the local community in areas of identified need; protection of environmentally sensitive areas; provision of convenient access; provision of a safe and attractive environment for users; support for the viability of the centre; and avoiding conflict with the role of adjoining community centres.

Vision 2020 By Design - A Built Environment Framework for Yarra Ranges

1. Ms Marshall advised us that the document 'Vision 2020 By Design' is an adopted policy of the Council since April 2009 and submitted that, on this basis, the Tribunal is entitled to take it into account. This document includes a hierarchy of the commercial centres within the municipality, being 'Street Based Activity Centres', 'Mall or Big Box Based Activity Centres' and 'Industrial Areas and Highway Strips'. Tecoma is classified as a Street Based Activity Centre. The Preferred Character Statement for these centres is:

Street Based Activity Centres in the Shire will be distinctive for their fine grain built form, with ground floor activity fronting traditional streets, and pedestrian activity concentrated along these streets. The centres will connect directly to surrounding residential areas via routes that provide a pleasant and safe pedestrian environment. A backdrop of vegetation will be visible behind the centre and views of the surrounding hills will be seen from numerous vantage points in public spaces.

1. The design guidelines promote continuous active frontages; design which is responsive to its urban context; concealed car parking; retention of views of backdrop hills and vegetation from public spaces; a fine grain appearance and articulated building facades; and minimal vehicle crossovers. Conversely, the guidelines discourage the provision of extensive areas of at-grade car parking; development which obscures views to backdrop hills/vegetation; and unarticulated building forms.

Activity Centre Design Guidelines and the Interim Guidelines for Large Format Retail Premises

1. Reference to the State Government's Activity Centre Guidelines and the Interim Guidelines for Large Format Retail Premises was included in Mr Czarny's evidence. It was acknowledged that the latter of these relate specifically to restricted retail premises rather than to supermarkets, but it was submitted that their application to these types of developments is relevant. In essence, these guidelines promote the provision of a high quality public realm, integrating development with its context, achieving good urban design outcomes and making appropriate provision for car parking, loading and landscaping. We have had regard to these guidelines in our consideration of this matter.

IS A SUPERMARKET DEVELOPMENT ON THIS SITE CONSISTENT WITH THE STRATEGIC AND PLANNING POLICY FRAMEWORK?

1. The Council's submission did not take issue with the use of the land for the purpose of a supermarket, conceding that such a use is appropriate and consistent with the purpose of the Business 1 Zone. Council's concerns with the application relate to the proposed built form.
2. The applicant on the other hand impressed upon the Tribunal that consideration of the proposed use was appropriate in the circumstances, notwithstanding that the use is not subject to planning approval. It was submitted that the as-of-right nature of the use should be given significant weight in the assessment of the proposal, and that the benefits of a supermarket use to the local community and wider area should not be overlooked.
3. In the broader sense, the establishment of a supermarket on the site is consistent with the state activity centre policy which seeks to build up activity centres as key locations for business uses and as a focal point for the community. A supermarket on the review site would, no doubt, result in the provision of a wider range of goods to meet the daily and weekly needs of the local community than is currently the case. Such a development would most likely also act as a key attractor within the centre that may act as a catalyst for further economic activity, thereby consolidating and enhancing the role of the centre. In a wider context, Mr Biacsi also stated that a supermarket here would also introduce competition for other existing supermarkets in the region, such as the one in Belgrave, and result in further benefits for the general community in the form of upgraded facilities.
4. In our view, an important consideration in the assessment of the proposal's consistency with the planning policy context is the overall strategic vision for Tecoma as expressed in the Planning Scheme and other Council-adopted documents.
5. It is evident that Tecoma Village is a lower order centre within the hierarchy of activity centres within the municipality. This is reflected within the Framework Plans of the MSS (where Tecoma does not appear as a centre), the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan which identifies Tecoma as a Local Centre, and in the Council's 'Vision 2020 by Design' document which nominates Tecoma as a street based activity centre.
6. While we agree with the submission of Mr Townshend that Yarra Ranges is not "the land that Activity Centre policy forgot" we consider that it is important that development within Tecoma is responsive to not only its built form character but also its role within the activity centre hierarchy. Based on the material before us, it is not intended that its present role as a centre of the lowest order be altered. It is intended that the local convenience role of Tecoma be maintained and that the centre not be elevated to a role which is more regionally focussed.
7. With this policy background in mind, we consider that new development within Tecoma should be moderated/tempered in its scale and extent to ensure that it respects the established low profile and modest built form character of the centre, while responding to modern day retailing and service needs of the community. For reasons that we will elaborate on in the following section, we have concluded that the proposal does not strike this balance.

IS THE FORM OF THE DEVELOPMENT APPROPRIATE TO THE SITE AND ITS CONTEXT, FROM A CHARACTER AND BROADER LANDSCAPE PERSPECTIVE?

1. The lower order nature of the Tecoma activity centre is perhaps most evident in its limited extent and the low profile nature of the constituent buildings. The existing development is not only modest in terms of its height, but also in terms of its footprint, where it is largely sited toward the highway with the area to the rear being developed and used as car parking. This character is not only influenced by the low scale built forms, but also the residential nature of adjoining development and the separation which exists between the residential properties and the commercial buildings - including the provision of landscaping within this intervening space. The centre has a strong 'traditional' feel, having retained its street based focus, without the buildings intruding significantly toward the adjoining residential hinterland.
2. Clause 21.06 states that development should be compatible with, and responsive to, the established built form and character of the centre. This does not mean that new buildings need to be identical in their design and scale with those already existing in the centre. Development should, however, be designed to be respectful of the existing character and be able to integrate into the built form context without appearing as an obtrusive element which does not sit comfortably within its surrounds.
3. We accept that the presentation of the proposed development to Burwood Highway is generally acceptable in terms of its height, design and appearance. The proposed two-storey scale will not dominate the streetscape and represents an appropriate graduation from the adjoining and nearby single storey buildings. The contemporary appearance of the development is also acceptable, although we consider there is potential to improve its integration with the wider centre by including elements to reflect the fine grain of development that characterises this centre, rather than the expanses of glazing.
4. The centre is not characterised by development which extends to within close proximity of the adjoining residential properties. Not only does this limit the amount of built form at the rear of the commercial properties, but also restricts the height of development at the rear, given that the land falls quite steeply towards the rear of these properties.
5. In contrast, the proposed development will introduce a built form of up to approximately 11 metres in height, extending to within some 6.5 metres of the rear boundary. Aside from the likely impacts of this built form on the amenity of the adjoining residential property, this scale is significantly in excess of that which characterises this centre and no meaningful attempt has been made to moderate the height and, potentially, extent of the built form at its northern end.
6. By its very nature, adopting what may be described as a 'big box' design, the proposed building will be inconsistent with the fine grain which characterises this centre. While we understand that expansive floor plates are required for supermarket developments, a tempered approach should be adopted to reflect an acknowledgement of the modest scale of development which prevails in the centre. We agree with Mr Atkins that "development must not be driven by floorspace but instead be based on the role, function and character of the centre".
7. In our view this would necessitate adopting a reduced floor plate and stepping back the development further from the northern boundary. We consider that a supermarket of a much more modest scale would enable the consequential built form to be more respectful of its context, while perhaps also reflecting an acknowledgment of the role of the centre within the activity centre hierarchy of the municipality. That is, a supermarket which serves local convenience needs, rather than one which would seek to compete with larger supermarkets that have a wider, perhaps regional, catchment - such as the one at Belgrave.
8. As proposed, we do not consider that the development complies with the policy intent as expressed at Clause 21.06. We find that the proposed development is too large for its context and will stand as an anomaly within this local street based centre, to the detriment of its established character.

WILL THE DEVELOPMENT HAVE AN UNACCEPTABLE IMPACT ON THE AMENITY OF ADJOINING LAND?

1. As with most developments at a commercial and residential interface, this case raises issues of the building's impact on the amenity of the adjoining residential properties. The principal concern in this instance is the presentation of visual bulk to the secluded private open space areas of these dwellings.
2. We accept that an effort to minimise the impact of that part of the development which accommodates the loading bay facility has been made by restricting the height of this element to approximately 7.6 metres - equivalent to a two-storey dwelling. In addition, this part of the building is to be set back 5.1 metres and 11 metres from the adjoining sections of the eastern and northern boundaries respectively, with landscaping provided in these areas to screen and soften the appearance of the structure. We are generally comfortable with this response and consider that this component of the development will not present unreasonable visual bulk to the neighbouring secluded private open space areas.
3. We are, however, not satisfied with the interface of the remainder of the building with the directly adjoining residential property to the north. This is the highest part of the development, rising to a height that is in excess of 11 metres, and is set back approximately 6.5 metres from the northern boundary - 4.8 metres of which is to be landscaped and will incorporate trees.
4. Due to the fall of the land, the northern elevation presents as the highest section of the building. It is somewhat unfortunate that this occurs adjacent to the site's most sensitive interface. We acknowledge the applicant's submissions and evidence that the interface will be treated with landscaping and materials to reduce the mass and bulk of the wall. Evidence was also given that the dwelling is oriented towards the north, hence 'turning its back' on the review site, further reducing the potential amenity impacts of the development.
5. Given the size of the building, and its proximity to the boundary, we are not satisfied that the proposed setback, wall treatments and landscaping are sufficient to ameliorate the presentation of bulk to the adjoining land. Although the dwelling may be oriented toward the north, the rear secluded private open space area has a direct and exposed interface with the review site. It is a sensitive area which is well maintained and has the appearance of being utilised by the residents for their recreational needs.
6. The sheer height and extent of the wall is such that it will loom large over the neighbouring residential property and will result in an overwhelming presence to this site. This impact is exacerbated by the lower site level of the residential property, which will have the effect of further accentuating or exaggerating the height of the development when viewed from this land.
7. We contrast the review site with a site at Emerald (being the subject of an application to the Tribunal in the matter of Ritchie Stores & Ors v Cardinia SC & Anor [2009] VCAT 1232) referred to by Mr Townshend, and which we viewed on our tour of inspection. The Emerald site has a different site context - including land slope, adjoining land uses and its location on a corner - which, in our view, provides a different starting point for any design response.
8. We do not consider that the interface of the review site with the adjoining residential land has been successfully resolved. It appears to us that the resultant built form is largely a function of the desire to obtain a certain floorplate size on the land, rather than a considered response to the constraints of the land - including the slope and the residential interface.

WILL THE DEVELOPMENT RESULT IN UNACCEPTABLE TRAFFIC IMPACTS ON THE SURROUNDING STREET NETWORK?

1. The Council's reasons for not supporting the application did not include reference to traffic impacts. Rather, the draft conditions circulated by Council in accordance with the Tribunal's Practice Note included specific conditions to respond to the likely traffic implications of the proposal. These include the conditions required by VicRoads.
2. VicRoads is responsible for the management of the Burwood Highway. The application was referred to VicRoads for comment in accordance with Clause 52.29 of the Planning Scheme as it is proposed to alter access to this road as part of the proposed development. VicRoads did not object to the application subject to conditions, notably the provision of a right turn lane into the site and a ban on right hand turns out of the site into the Burwood Highway.
3. It is fair to say that there was general agreement amongst the experts, and VicRoads, that the traffic impacts of the development can be appropriately managed so as to not unacceptably affect either the operation and efficiency of Burwood Highway, or the residential amenity of adjoining streets. Given this general agreement, we accept this evidence.
4. A point of difference between Ms Partenio and Mr Boloutis which requires our consideration and comment is the acceptability or otherwise of trucks reversing across pedestrian paths and vehicular access lanes to enter the loading bay area. In our view, the acceptability or otherwise of such an arrangement is directly influenced by the frequency of deliveries and the times during which the deliveries are undertaken. Clearly, in a circumstance where there are a relatively low number of deliveries, and these occur at either end of the day to avoid the peak trading period of the supermarket, the impacts of trucks manoeuvring on site are less than would otherwise be the case. At these times there are likely to be fewer numbers of people and vehicles in this area who may be inconvenienced or be directly impacted upon by the truck's manoeuvres.
5. Ms Partenio in her oral evidence stated that there is likely to be a low pedestrian circulation in that portion of the site which would be affected by the manoeuvring required to be undertaken by the truck in order to access the loading bay. We think that this is correct. Based on the layout of the development, it appears to us that persons accessing the rear of the site from the east will enter the building at the eastern end in order to access the lift or walkway to the supermarket above. Alternatively, persons approaching the site from the west will use the footpath along the frontage of the site to access the supermarket and/or shops. The only persons likely to be using the walkway which extends along the northern boundary of the land are those wishing to traverse the site, which we suspect, are likely to be in the minority.
6. Further, in response to questions from Mr Townshend, Ms Partenio stated that a loading management plan to address any potential conflicts between trucks and vehicles/pedestrians in this area is achievable. We have formed the view that such a management plan is desirable and would provide control over delivery times to restrict these to periods where vehicular and pedestrian circulation on the site would be relatively low. This plan could also address the need for manual controllers to assist in the manoeuvring of trucks and avoid any potential conflicts.
7. A further point of difference is whether right hand turns out of the site into the Burwood Highway should be banned. While VicRoads and Mr Boloutis advocated this ban, Ms Partenio suggested that the ban only be implemented if it is demonstrated that it is necessary, once the use of the supermarket has commenced. Having considered the evidence and submissions, together with observations undertaken during our inspection of the site, we agree with VicRoads and Mr Boloutis that a right hand turn out of the site into Burwood Highway should not be permitted.
8. The operation of the highway in this location is influenced by its intersections with McNicol Road and Sandells Road, located within a short distance of each other; the associated complexity of vehicle movements into and out of these roads; the narrowing of the carriageway when compared to the section of the highway further west; and the bend in the road, also to the west of the review site. To add right hand turns out of the site into this context would add further complexity and unduly complicate the operation of the highway with potential undesirable implications for its efficiency and safety.

1. For the above reasons we will affirm the decision of the Council and direct that no permit be issued. In doing so, we are not suggesting that a supermarket cannot be developed on this site. Indeed, given the size of the land, we consider that a supermarket could be accommodated on this site to serve the local community. Such a development will, however, need to be much more modest than that proposed here. The design, siting and scale will need to better acknowledge and respond to the character of the area, the topographical conditions of the site and the interface with the residential properties. We consider that it will need to provide a lesser floor area with a commensurate reduction in the size and extent of the resultant built form.

[1] We have considered all submissions and accompanying material assisted by our inspection. We do not recite all of the material presented as all documentation is retained on the Tribunal's file.

[2] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[3] Refer to Clause 1.0 of the Schedule to Clause 53.01.