5. Street tree planting consisting of nine (9) Pyrus Chanticleer (Ornamental Pear) is to occur in the Arawatta Street frontage of the site. Council is to undertake planing and future care of these trees. The applicant/developer/owner is required to pay $2205.00 plus GST for the cost of these trees.

6. Street tree planting consisting of nine (9) standard bay trees is to occur in the Koornang Road frontage of the site. Council is to undertake planting and future care of these trees. The applicant/developer/owner is required to pay $2596.00 plus GST for the cost of these trees.

7. Deliveries to and from the site (including waste collection) must only take place between:

• 7.00am - 10.00pm Monday to Saturday (inclusive)

• 9.00am - 10.00pm Sunday and Public Holidays

VicRoads

8. Prior to the commencement of any use or works authorised by this permit, the applicant must arrange for detailed engineering plans of proposed access arrangements and associated roadworks on Dandenong Road (Princes Highway) to be prepared to the satisfaction of VicRoads in consultation with the Responsible Authority.

9. Prior to the commencement of roadworks, the developer must contact VicRoads Team Leader - Improvement Projects Team (telephone No. 9881 8080) for the following:

(i) Provide VicRoads with a bank guarantee (in the name of the developer) without a termination date, for the estimated cost of the works;

(ii) Provide evidence that the Contractor has a public liability insurance policy for at least $10 million, effective for the duration of the works;

(iii) Provide VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works, at least 21 days prior to the commencement of works. The Traffic Management Plan must meet the requirements of the VicRoads Worksite Traffic Management (Roadworks Signing) Code of Practice which incorporates AS1742.3-2002;

(iv) Arrange for the contractor to contact the VicRoads Surveillance Coordinator (Telephone Number 9881 8079) at least 7 days prior to the commencement of works. Note: The contractor will be charged for the actual cost of VicRoads surveillance, which may be undertaken at certain key times during the works;

(v) Provide evidence that the contractor has developed and maintained a Quality Management System, Occupational Health and Safety System, Environmental Management System and Traffic Management System, to the satisfaction of VicRoads.

10. Prior to the commencement of works within the road reservation, approval must be gained from VicRoads or the Responsible Authority.

11. The developer must pay the full cost of all roadworks, drainage and road safety devices, service relocations and civil works and any other associated costs.

12. The design, depth and composition of pavement (new and existing) must be to the satisfaction of VicRoads.

13. The standard of material and works must be in accordance with VicRoads Standard Specifications for Roadworks and to the satisfaction of VicRoads.

14. Prior to the use allowed by this permit commences, the applicant must complete all roadworks specified, to the satisfaction of VicRoads.

15. All roadworks must be constructed in accordance with endorsed plans and to the satisfaction of VicRoads.

16. The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

Note: This does not obviate the need for a permit where one is required.

17. The layout and description of use(s) as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

Note: This does not obviate the need for a permit where one is required.

18. The development must not commence until a Development Contribution Fee has been paid to the Responsible Authority. The fee payable must be calculated in accordance with Schedule 1 to the Development Contributions Plan Overlay of the Glen Eira Planning Scheme.

Note: A $40.00 administration fee will also be charged.

19. Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.

All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

20. The location of the sign(s) (including the size, nature, panels, position and construction) shown on the endorsed plan must not be altered without the prior written consent of the Responsible Authority.

Note: This does not obviate the need for a permit where one is required.

21. The sign(s) must not contain any flashing light.

22. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

23. (a) Subject to condition 24(b), the loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land.

(b) Loading and unloading of private cars, couriers and vans can occur off-site if parked in a lawful manner to the satisfaction of the Responsible Authority or as specified in the Plan prepared under condition 3.

24. All disused or redundant vehicle crossings must be removed and the area reinstated with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

25. All car parking spaces must remain available for general use by members of the public at all times.

26. The noise attenuation and mitigation measures recommended in the report prepared by Mr David Dolly of Acoustic Consulting Australia Pty Ltd dated 15 September 2005 Reference 5166-9 must be carried out to the satisfaction of the Responsible Authority. Prior to the use of the land commencing a report prepared by an appropriately qualified and experienced acoustic engineer shall be submitted to the Responsible Authority which certifies that the noise attenuation and mitigation measures recommended in Mr Dolly's report have been satisfactorily carried out. The report must be to the satisfaction of the Responsible Authority.

27. (a) Before the development starts, a landscape plan 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 be drawn to scale with dimensions and three copies must be provided.

(b) Before the use/occupation of the development starts, or by such later date as it approved by the responsible authority in writing, the landscaping works shown in the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

(c) The landscaping shown on the endorsed plans must maintained to the satisfaction of the responsible authority.

•

The development does not start within 2 years from the date of this permit; or

•

The development is not completed, the use is not started or the advertising signs are not displayed within 4 years of the date of this permit.

The Responsible Authority may extend the time referred to if a request is made in writing before this permit expires or within three (3) months after the expiry date.

Ms M Quigley SC and Ms S Brennan of Counsel, instructed by Deacons. They called as witnesses:

•

Grant Beck, architect, the Buchan Group

•

Ian David Shimmin, economist, Urbis JHD

•

Roz Hansen, town planner, Hansen Partnership

•

Phillip Borelli, town planner, SJB Planning Pty Ltd

•

Stephen John Hunt, traffic engineer, Grogan Richards

Witness reports were tendered on behalf of the following but they were not called to give evidence:

•

David Dolly, acoustic consultant, Acoustic Consulting Australia Pty Ltd

•

Simon Smith, landscape architect, MDG Landscape Architects Pty Ltd

Mr Tim Power, solicitor, of Freehills. He called as witnesses:

•

Mike Scott, town planner, Planisphere

•

Andrew O'Brien, traffic engineer, Andrew O'Brien and Associates

A witness report was tendered on behalf of the following but they were not called to give evidence:

•

John Henshall, economist and Scot Stephens, economist, Essential Economics Pty Ltd

Mr Geoffrey Code, solicitor, of the Victorian Government Solicitors Office

1 In many respects this is quite a straightforward case. The proposal, is a development on the corner of Dandenong Road and Koornang Road, Carnegie for a three storey mixed use development comprising a large supermarket, specialty shops, restricted retail premises (including Spotlight and Anaconda stores), a gymnasium and offices. The only contentious element was the level of floor space proposed for the supermarket. The subject land is in a Business 1 Zone and at the time the council considered the planning permit application no permit was required for the use 'shop'. A permit was required for a development and a condition in the notice of decision to grant a permit reduced the floor area to be used for the supermarket from 3200m2 to 1500m2.

2 We have no hesitation in endorsing the decision of the council to grant a permit. The applicant has agreed (at this point in time) to a permit condition limiting the size of the supermarket to 1500m2. The grant of a planning permit for use of the land as 'shop' and for a development with 11,260m2 of retail floor space is strongly supported in this location by the SPPF and the LPPF. Carnegie is identified as a major activity centre in Melbourne 2030. It is well served by multiple public transport routes and is on the Principal Public Transport Network. Under clause 12.01-2 of the SPPF, major activity centres are intended to accommodate ongoing investment and change in retail markets. Under the LPPF, Carnegie is identified as an urban village and major retail use is encouraged to concentrate in urban villages. The site is included in a Business 1 Zone, the purpose of which is to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

3 What makes this proceeding unusual is the overnight change in planning controls and policy just before the hearing commenced (introduced by the Minister for Planning at the request of the council) and the shift in position of the council's main planning witness during the course of giving his evidence.[1] So far as the applicant was concerned, these events represented a substantial shift in the goal posts.

4 This hearing commenced on Monday 10 October 2005. On the preceding Friday, 7 October 2005, Amendment C46 to the Glen Eira Planning Scheme was gazetted, without notice. Amendment C46 changed the local planning policy in clause 22.05 as it relates to this particular site and amended the schedule to the Business 1 Zone to require a planning permit for any shop use floor space on the subject land exceeding 0m2. As a consequence of Amendment C46, the applicant amended its planning permit application to include use of the land for the purpose of shop. It also withdrew its application for review against the condition requiring reduction of the supermarket component of the proposal to a maximum leaseable floor area of 1500m2.

5 By amending its application for planning permit and application for review in these ways, the permit applicant, Glenwaye Pty Ltd, in effect acknowledged that it would now need to contest the strategic merits of its proposal before a planning panel.[2] Glenwaye made it clear that it has not abandoned its plans for a full line supermarket as originally proposed. So far as the application before the Tribunal is concerned, the external appearance of the proposed development is not altered[3] and the total floor area of the development devoted to the use shop remains the same. Only the supermarket component is reduced at this stage.

6 At the outset of the hearing, Mr Code appeared on behalf of the Minister for Planning who intervened in the proceeding pursuant to clause 57 of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. The Minister considered that the criteria for intervention set out in clause 57 were met because:

•

The proceeding raises a major issue of policy in terms of the effective implementation of Melbourne 2030 in relation to the Carnegie major activity centre; and

•

The determination of the review may have a substantial effect on the future planning of the Carnegie centre and that part of it known as the Dandenong Road Precinct because the grant of a permit in respect of the permit application may conflict with, or may threaten the implementation of, a draft structure plan for the centre known as the Carnegie Urban Design Framework (the UDF).

7 However, in his submission, the Minister emphasised that no part of the use and development is either prohibited by or permitted by the interim controls. The Minister made no submissions on the merits of the permit application, the notice of decision, or the review, or whether a permit should be granted, specified conditions should be included in a permit or a permit should be refused. It was also emphasised that the Minister did not make any submissions about whether or not some or all of the policies are relevant to the permit application. The Tribunal was seen as an appropriate forum to consider the meaning and effect of the policies as they may affect the permit application or the proceeding. The purpose of the Minister's submission was purely to request the Tribunal to consider the interim controls for the Carnegie centre that were introduced on 7 October 2005 in determining the review and to explain that Amendment C46 was approved because the Minister was satisfied that:

•

The council's request for interim controls met the requirements of the Advisory Note Activity Centres - Interim Structure Plans (December 2004); and

•

The legislative criteria were met for the grant of notice exemptions under the Planning and Environment Act 1987.

8 There is no legal impediment to the applicant pursuing a full line supermarket at this stage. The only policy impediment is the change to clause 22.05 Urban Villages Policy introduced by Amendment C46. Glenwaye has chosen not have this fight at this stage. By modifying its application for planning permit and the application for review, the applicant has, in certain respects, substantially simplified the Tribunal's decision on the planning merits of the case. At the hearing, a level of consensus emerged between Vic Roads and the traffic witnesses for the council and Glenwaye, which will benefit the objectors and address many of their concerns. Improvements were made to issues of design detail. Despite the change in views expressed by Mr Scott, the council continued to support its notice of decision to grant a permit and supported the grant of a permit for the use shop, which was required as a consequence of Amendment C46.

9 We have considered the interim controls and policies introduced by Amendment C46, as well as the rest of the state and local planning policy frameworks. We have reached the conclusion that the proposed use and development represents a net community benefit and is an effective implementation of Melbourne 2030. We therefore have no difficulty in granting a permit with amended conditions, which are largely agreed upon by the council and Glenwaye.

10 The question therefore arises as to what purpose has been achieved by the introduction of Amendment C46 and shifting the goal posts for the applicant in the way that has occurred.

11 If the purpose of Amendment C46 was to stop this particular development, in particular the introduction of a supermarket, the exercise has not been successful for a number of reasons:

•

The council did not withdraw its support for the notice of decision it had issued for the development and it supported the grant of a permit for the use of the subject site as 'shop'.

•

The permit granted consequently authorises use and development of the land for some 11,260m2 of retail floor space. This is a large development and will have the effect of consolidating the northern end of the Carnegie centre as an important part of the core retail area of this major activity centre.

•

The outcome of our consideration of the interim planning policy for the Dandenong Road Precinct introduced by Amendment C46 has led to the conclusion that aspects of it are contrary to planning law and sound planning practice, as well as being contrary to the overwhelming weight of policy otherwise found in the SPPF and LPPF, which support the proposed use and development. In particular, we find they are contrary to Melbourne 2030, which seeks to expand not contract major activity centres for retailing and commercial purposes. As a consequence, we have found that little weight can be placed upon those aspects of the local policy introduced by Amendment C46 that possibly sought to frustrate this particular proposal

12 On the other hand, Amendment C46 has raised important implications for the credibility of the planning system and the faith that developers and landowners can place on zones and other planning controls, and strategic plans such as Melbourne 2030. We consider that this exercise has exposed the risks inherent in councils trying to include untested strategies or policies in planning schemes by way of interim planning controls, especially when they are otherwise contrary to the planning policy framework and zoning of land.

13 Whilst the merits of Amendment C46 will be tested at a future panel hearing, in many respects the horse has bolted so far as a major retail development and supermarket north of the rail line at Carnegie are concerned. What will be left to address are the intentions that council may have regarding the provision of housing within the Carnegie major activity centre and the form this may take, especially in the residential precincts of the urban village and the remainder of the Dandenong Road Precinct.

14 These applications for review concern a notice of decision to grant a planning permit issued by the responsible authority on 21 April 2005 in respect of the subject land. The permit allows:

1. The construction of a three (3) storey building and multi level car park including basement car parking.

2. Reduction of the car parking requirement (in association with the shops, restricted recreation facility, offices and retail premise);

3. The use of the land for a retail premise and a restricted recreation facility.

4. The display of illuminated and non illuminated advertising signage.

15 Application P1125/2005 is made pursuant to section 80 of the Planning and Environment Act 1987 by the permit applicant in respect of the following conditions in the notice of decision. We have included in the following table the relevant condition and the grounds relied upon.

1a) Reduction of the supermarket component of the proposal to a maximum leasable floor area of 1500m2. Additional retail uses may be incorporated into the remaining ground floor area of the building.

This condition should be deleted, as it is invalid in that it seeks to impose a "use" related condition on a permit for buildings and works in a zone where the proposed use is as of right and not subject to any floor space limitation. Furthermore, it is considered to be unreasonable in that there is no economic or strategic planning rationale for the floor space limitation.

1b) Changes to the articulation, materials and fenestration of the elevations to create a more finely grained, modulated and less bulky appearance.

This condition is not opposed in principle; however, as currently worded it is vague, uncertain and requires further clarification.

1c) Reduction in the prominence, size and extent of advertising including the image banners and logos.

This condition is vague, uncertain and requires further clarification

1d) Relocation of the smaller shops located in the arcade (coloured green on plan) to the Koornang Road frontage to provide direct access and a more active frontage to the Koornang Road abuttal

This condition was not originally appealed against but is now considered to be unnecessary.

This condition is unnecessary given the distance from the windows to the adjoining property.

1g) Incorporate sections of an active frontage at ground level and upper levels on Arawatta Street through architectural and/or 'use' means.

This must not result in the loss of on-site car parking numbers. The capacity to extend the basement car park to the north-west corner exists to compensate for consequences on car parking layout. Should additional leasable floor area be created, additional on-site car parking must be provided.

This condition is not opposed in principle; however, as currently worded it is vague, uncertain and requires further clarification.

2. Prior to the commencement of the development, the owner of the land at 2-18 Koornang Road Carnegie must enter into an Agreement with the responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the responsible Authority to the effect that:

(a) The land owner shall not cause or permit the land to be used for more than one supermarket, nor may any such supermarket have a maximum leaseable floor area of greater than 1500m2.

(b) The land owner must pay to Council a contribution toward the cost of future traffic management works in the precinct.. The "future traffic management works" must be defined in the Agreement and this definition must include, without limitation the:

•

Acquisition of land for, and construction of, a public thoroughfare from Arawatta Street south to Woorayl Street;

•

Signalisation of the intersection of Woorayl Street and Koornang Roads

The Agreement must define the contribution amount (as a proportion of the total cost of the future traffic management works), timing and conditions of payment. The amount of the land owner's contribution to the cost of the future traffic management works will be proportional to the approved development's contribution to the total traffic generated by other land uses and activities in the precinct. The contribution required by this condition (and Agreement) are in addition to any immediate works or treatments required by condition 3 of the permit.

For this purpose of this condition "precinct" means land located between Dandenong Road, Koornang Road, the railway line and the eastern-most point of Arawatta Street,

A memorandum of Agreement is to be entered on Title and the costs of the preparation and execution of the Agreement and entry of the memorandum on Title are to be paid by the owner.

It is considered that the intent of part 2(a) is invalid in that it seeks to impose a "use" related condition on a permit for buildings and works in a zone where the proposed use is as of right and not subject to any floor space limitation. Furthermore, it is considered to be unreasonable in that there is no economic or strategic planning rationale for the floor space limitation,.

Part 2(b) of this condition is also opposed as the works identified are not necessary as a consequence of the proposed development; the requirement to contribute to undefined and unlimited future traffic management works is uncertain, open-ended and unreasonable; and the condition fails the test of accountability and equity because there is no mechanism for ensuring that other benefiting land owners contribute to the cost of future traffic management works and for ensuring that the works are carried out and completed satisfactorily.

3. Prior to the commencement of any works an Integrated Traffic, Car Parking and Pedestrian Management Plan for the site and surrounding area must be prepared by the applicant and approved by the Responsible Authority and must include a response to the following:

(t) Provision of a separate pedestrian access between Dandenong Road and Arawatta Street along the western side of the accessway on the eastern boundary of the site whilst still maintaining a landscape bed along the eastern abuttal;

The preamble of this condition should be reworded to refer to an "Integrated Traffic, Car Parking and Pedestrian Management Plan for the site and its integration with the surrounding area".

Further, it is unreasonable to require the entire building to be relocated to provide a setback wide enough for a landscaping strip, vehicular access and pedestrian access.

7. Deliveries to and from the site (including waste collection) must only take place between:

•

7.00am-10.00pm Monday to Saturday (inclusive)

•

9.00am - 10.00pm Sunday and Public Holidays.

This condition is opposed on the basis that it unreasonably and unnecessarily constrains the use of land for activities associated with an as of right use.

21. The sign(s) must not contain any flashing, intermittent or changing colour light.

This condition is opposed on the basis that the proposed promotional signage forming part of the facade is proposed to contain changing lighting.

24. The loading and unloading of goods from vehicles must only be carried out on the subject land and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land.

"The loading and unloading of goods from vehicles should only be carried out on the subject land and conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land to the satisfaction of the responsible authority".

In some circumstances, it will be appropriate to allow specialty shops with an active frontage to Koornang Road to rely on the Koornang Road frontage for loading.

25. The loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and paring of vehicles on the land.

This condition should be deleted because it unnecessarily duplicates condition 24.

16 This was an application for review against the decision by the council to grant a permit by four sets of objectors:

•

Rosstown Hotel, which is located opposite the subject land on the south west corner of Dandenong Road and Koornang Road, raising concerns about car parking and traffic.

•

Medtel Pty Ltd of 17 Arawatta Street, Carnegie, raising concerns about the public thoroughfare to Woorayl Street; access to loading bays from Arawatta Street; and congestion and delays in Arawatta Street for delivery trucks and local traffic.

•

McKellar Renown Press Pty Ltd of 14 - 22 Woorayl Street, Carnegie, raising concerns about traffic congestion in Arawatta Street and the way this would impact on their business.

•

Allison Campbell Rate and others, local residents of Arawatta Street, Chestnut Street and Poplar Grove, raising concerns about impact on neighbourhood and residential amenity, and safety due to traffic; and building mass.

17 The subject site stands at the Dandenong Road entrance to the Carnegie shopping centre, which extends along Koornang Road from Dandenong Road to just south of Neerim Road. The site is a large 'L' shaped allotment on the south-east corner of the intersection with frontages to Koornang Road of 55 metres; Dandenong Road of 97 metres; and Arawatta Street of 62.197 metres. The site has an overall area of approximately 7998m2. The relative size and location of the subject site is shown in figure 1 in Appendix A.

18 On the opposite corner stands the Rosstown Hotel, a prominent landmark and gateway to the Carnegie shopping centre. To the east, the site abuts a physiotherapy clinic on Dandenong Road and a single storey detached dwelling in Arawatta Street. Nine existing, somewhat nondescript two storey shops fronting Koornang Road are located at the south-west corner of the site with a right-of-way providing access to their rear.

19 The site is currently occupied by a single storey Betta Electrical Store and a large open lot car park. The existing building is without architectural merit and does nothing to enhance the overall identity and appearance of the Carnegie shopping centre.

20 Arawatta Street is a cul-de-sac that runs east from Koornang Road approximately 200 metres. The eastern end of the street is characterised by modest detached houses and units, whilst the western end, opposite the subject site, is characterised by commercial and industrial premises.

21 The Carnegie shopping centre extends along both sides of Koornang Road for a distance of approximately 170 metres from Dandenong Road to Neerim Road. It is a typical of many traditional suburban retail strip shopping centres. It has a fine grain mix of one and two storey shops mainly dating from the inter-War period.

22 The Carnegie railway station and level crossing are located about 80 metres south of Arawatta Street where there is a signalised intersection in addition to the controlled level crossing. There is both a pedestrian and cycle underpass and an at-grade pedestrian crossing at the boom gates. The station is about 110 - 120 metres from the proposed main entrance to the development.

23 There is one supermarket located south of the railway line in Kokaribb Road. It does not have a Koornang Road address or high visual exposure from the shopping strip being located west of Koornang Road behind the shops. Kokaribb Road provides vehicle access to the Safeway Supermarket car park and a council car park and has residential development opposite along its west side. The supermarket is relatively small in size, approximately 2100m2, with at-grade car parking which is also shared by many of the shops and businesses in the immediate area. Pedestrian links, such as a shopping arcade and laneway connect the car parks with Koornang Road. There are fresh fruit and vegetable stalls along these pedestrian links operated by the ethnic community of Carnegie. On the east side of Koornang Road is a newly developed public library/community centre and children's playgroup facility

24 The uses along Dandenong Road west of Koornang Road are a mix of service industry and restricted retail premises such as car repairs, radio parts, carpet sales, bicycle sales, building supplies and the like.

25 The proposal involves demolishing the existing Betta Electrical building and redeveloping the site with a three storey commercial building comprising a supermarket, shops, a Spotlight and an Anaconda store, offices, a gymnasium and a child care centre, two levels of basement parking for 429 cars and a loading/unloading area. Pedestrian access to and from the basement car parking is via travelators, lifts and stairways. Based on the amended plans, the following schedule of floor areas is proposed:

•

Supermarket - 3729m2

•

Other shops and kiosk - 1205m2

•

Restricted retail premises - 6325m2

•

Café - 100m2

•

Gymnasium - 1500m2

•

Office suites - 500m2

•

Child care centre - 600m2

26 The building has been designed with a strong urban edge to the Dandenong Road and Koornang Road frontages with the building façade including a mix of materials and finishes such as glazing, patterned precast concrete panels and metal mesh framing. Shop windows front Koornang Road and for part of the length of the Dandenong Road frontage. Above these openings are large display panels (known as environmental lifestyle graphics) and a grid frame which supports the signage for 'Spotlight'. The main architectural feature of the development is the bold, curved corner element of the façade at the main road intersection. The main entry to the supermarket and other uses within the development is from Koornang Road to the foyer area, allowing the shops to have access from both the streets and from within the development itself. Facades are layered and articulated by way of material cladding types, colours and setbacks in order to avoid a 'big box' appearance. Canopies are separately detailed over each shop front to also provide a degree of articulation.

27 A total of 429 car spaces will be provided in a two level basement car park, which will be accessed via ramps from Dandenong Road and Arawatta Street adjacent to the eastern boundary. A landscaping strip 1.9 metres wide will separate the vehicle ramps from the adjoining properties. A loading bay will be provided parallel to Arawatta Street accessed from the existing right-of-way. A series of perforated metal mesh screens will separate the loading bay from a landscaped strip abutting Arawatta Street.

28 The subject land is located in a Business 1 Zone, which covers all the land in the Carnegie shopping centre. A zoning plan for the Carnegie activity centre is included in figure 2 in Appendix A.

29 The purposes of the Business 1 Zone are:

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

To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

30 Until the introduction of Amendment C46, all the proposed uses were section 1 uses, which did not require a planning permit, except gymnasium (restricted recreation facility), which was a section 2 use. Amendment C46 amended the schedule to the Business 1 Zone in the Glen Eira Planning scheme and the subject site now requires a permit for the use shop.

31 Under the Business 1 Zone, a permit is required for development (buildings and works). A permit is also required for some of the signs. Under clause 52.06 a permit is required to reduce car parking.

32 The subject land is affected by a Development Contributions Plan Overlay, which applies to the whole of the municipality and relates to drainage, but there are no issues in contention relating to the overlay associated with this proceeding.

33 The State Planning Policy Framework (SPPF) is set out in clauses 11 - 19 of the Glen Eira Planning Scheme and is required to be taken into account in deciding these applications. It contains a range of policies that are expected to be integrated, relevant to the issues to be determined and, where conflicting objectives are identified, these are to be balanced in favour of net community benefit (see clause 11).

34 The State planing policies that are particularly relevant to this proposal, are those that address:

•

Metropolitan development (clause 12);

•

Energy efficiency (clause 15.12);

•

Activity centres (clause 17.01);

•

Business (clause 17.02);

•

Car parking and public transport access to development (clause 18.02); and

•

Design and built form (clause 19.02).

35 In essence, these policies seek to encourage the concentration of major retail, commercial and community facilities into activity centres (including strip shopping centres) in order to provide net community benefits in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities. These important principles are set out in detail in the metropolitan development policies now in Clause 12 incorporated Melbourne 2030 into all planning schemes as a result of VC 34 on 22 September 2005.

36 Clause 12.01-2 sets out the State Government's strategies for Activity Centres and include:

•

Concentrate new development at activity centres near current infrastructure and in areas best able to cope with change.

•

Build up activity centres as a focus for high quality development, activity and living for the whole community. This policy is to be implemented by (among other things):

•

Ensuring activity centres are developed in a way that:

-

reduces the number of private motorised trips by concentrating activities that generate high numbers of trips in highly accessible locations.

-

encourages economic activity and business synergies.

-

broadens the mix of uses appropriate to the type of centre and needs of the population served.

-

provides focal points for the community.

-

improves access by walking, cycling and public transport to services and facilities for local and regional populations.

-

supports the development of the Principal Public Transport Network.

•

Defining the role and function of activity centres, preferred uses, scale of development and links to the public transport system...

37 In this regard, the Carnegie activity centre, in which the site is located, is identified in Melbourne 2030 as a Major Activity Centre_,_ being one that contains a broad mix of activities and serves a medium catchment covering surrounding suburbs. The strategy states that such centres are to continue to develop "to accommodate ongoing investment and change in retail, office, service and residential markets_._"

38 State policies also encourage energy efficiency in the design of new buildings and seek to balance the supply of car parking for new development with the promotion of more sustainable forms of transport.

39 The Design and Built Form policies, at Clause 19.03 of the scheme, seek to encourage developments that achieve "architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm, while minimising detrimental impact on neighbouring properties".

40 The Council's Municipal Strategic Statement (MSS) identifies Carnegie as one of the three largest activity centres in the municipality (Clause 21.01-5). The Council's 13 Key Land Use Visions are listed in Clause 21.03-3 and include:

•

Identify and consolidate urban villages containing attractive and convenient retailing, community facilities, entertainment, tourist, educational and cultural facilities.

•

Stimulate and improve the vitality of Glen Eira's commercial centres.

41 The Strategic Framework Plan in Clause 21.03-5 shows Carnegie (together with Elsternwick and Bentleigh) as an Urban Village, where major retail uses are encouraged to concentrate. More detailed local strategies for the Urban Villages are set out in Clause 21.06 of the scheme. Of particular relevance to this proposal, they seek to:

•

maintain the hierarchy of commercial centres and ensure that retail requirements are met;

•

retain the highest possible share of retail expenditure of residents through maintenance of the shopping hierarchy and encouragement of viable retail expansion and particularly different forms of retailing;

•

encourage new and innovative retail and commercial activities to establish in the municipality having regard to the hierarchy of centres;

•

provide for the growth of bulk stores/peripheral sales along highways or at the edge of commercial centres, consistent with maintaining surrounding amenity and the commercial hierarchy;

•

promote small scale office uses;

•

ensure that new or expanded land uses are able to be accommodated in existing commercial centres, including the encouragement of non-retail businesses, where appropriate; and

•

ensure that commercial centres have a high standard of urban design and are attractive and appealing to potential customers, traders and investors.

42 To implement its strategies for urban villages, the MSS states council intends to (inter alia):

•

assess all applications having regard to the Commercial Centres Policy;

•

ensure new supermarkets and retail developments are located within existing centres (consistent with the identified retail hierarchy) rather than on free standing sites;

•

facilitate the growth of bulk stores/peripheral sales along highways or at the edge of commercial centres where off site amenity impacts are minimal and where the proposal is consistent with the commercial centre hierarchy.

43 The Commercial Centres Policy in clause 22.04 applies to all land within a Business Zone. The objectives of the policy are:

•

To support the identified retail and commercial centre hierarchy.

•

To protect existing investment in the retail and commercial infrastructure.

•

To ensure that new developments build upon this infrastructure to create a viable retail and commercial sector that has high standards in urban design and is an attractive location for shopping and other business functions.

•

To assist centres achieve their potential and to support in creating attractive, functional and viable centres.

44 It includes policies aimed at protecting the existing retail hierarchy and consolidating established patterns of retailing. Specific policies include:

•

Locating retail use within the core area of the existing shopping strip consolidate the retail function of existing strip shopping centres.

•

New commercial development be located in existing activity centres or in small declining centres where an alternative land use is sought. Such development should not displace or fragment essential retail functions.

•

To avoid undermining the existing retail structure and roles of individual centres, new supermarket developments and other large retail developments are not to be developed on freestanding sites where they do not complement surrounding retail uses.

45 Clause 22.05 of the LPPF contains the Urban Villages Policy. The objectives of the policy are, among other things, to encourage economic and employment-generating development, to consolidate retail functions within existing strip shopping centres, to improve community uses, to encourage increased densities within and around commercial/transport nodes, to respect the amenity of the surrounding area and provide a transition to residential uses.

46 Until it was amended by Amendment C46, the policy in clause 22.05 included a structure plan for Carnegie that defined 8 separate precincts. The major part of the application site was shown in Precinct 3 'The Retail Hub' and the southern portion of the site was in Precinct 1 'Development Opportunity'. The policies for Precinct 1 stated that the retail focus on Koornang Road should be strengthened and that increased building heights could accommodate office and residential uses. A mix of uses was desired in Precinct 1.

47 In addition to introducing a schedule to the Business 1 Zone, Amendment C46 replaced the Urban Villages Policy with a new clause 22.05. Only the policies relating to the Carnegie Urban Village were changed. In particular, Amendment C46 changes the precincts north of the railway line, introducing a new Precinct 1 Dandenong Road Precinct, which includes the subject site and other properties fronting Koornang Road that had formerly been in Precinct 3 Retail Hub. The extent of the change can be seen by comparing figures 1 and 2 in Appendix B. According to the explanatory report for Amendment C46:

The changes to the Urban Village Policy are required to introduce new land use and built form directions for the "Dandenong Road Precinct" between Dandenong Road and the railway line. The directions of the policy encourage bulky goods retailing, hospitality, entertainment uses, commercial uses and high density residential development whilst directing retail development south of the railway line and to avoid uses that compete directly with the Koornang Road retail strip and supermarket south of the railway line, The principle is to consolidate and strengthen the existing retail core which runs along Koornang Road between the railway line to the north and Neerim Road to the south.

•

Where retail uses are encouraged in this precinct, avoid retail that competes directly with the Koornang Road retail strip and supermarket(s) south of the railway.

•

Encourage non-core retailing, hospitality, entertainment and commercial uses addressed to Dandenong Road, with the exception of No. 1100 and 1102 - 1108 Dandenong Road where retail uses are discouraged.

•

Encourage non-core retailing, hospitality, entertainment and commercial uses address to Koornang Road.

49 The policies for Precinct 1 Dandenong Road Precinct do not apply after 30 September 2007.

50 The explanatory report to Amendment C46 establishes that the amendment is based upon and implements the draft Carnegie Urban Design Framework (UDF). The draft Carnegie UDF is contained in a consultant report issued for public comment prepared by Planisphere in 2004 entitled Design Vision for Carnegie. This document was prepared as part of an exercise by Glen Eira City Council to prepare design visions for Bentleigh, Carnegie and Elsternwick activity centres. The Design Vision for Carnegie was produced in 2004 following a community workshop attended by around 30 - 40 local people. It was made available for public comment in August 2004. The study area including the whole of the Carnegie Urban Village.

51 A number of statements are made in Design Vision for Carnegie relating to activities. In the context of activities and services in Carnegie, it is stated that the range of services should be expanded and the role of Carnegie as a prime centre for activities and services in Carnegie, Caulfield East and Glen Huntly, and to some extent Malvern East, Murrumbeena, Ormond, Caulfield South and Caulfield should be reinforced and improved.

The study's retail consultants believe that the mix of services offered by the centre is strong, but needs to expand gradually into the future to keep pace with the anticipated growth in demand for retail and other services. The current trade area population of Carnegie is around 40,187 persons, a figure estimated to increase at between 0.3 and 0.5 per cent per year. This, combined with real growth in per capita retail spending means that the size of the retail market in the suburbs which Carnegie shopping centre serves is predicted to grow. State and Council planning policies favour consolidation of services in Major Activity Centres like Carnegie as part of the drive to improve Melbourne's sustainability**.**[4]

52 On the other hand, with respect to Koornang Road retailing, the stated objective is to maintain a compact retail strip associated with street life along Koornang Road focussed between the railway and Neerim Road. With respect to location of core activities, the Design Vision for Carnegie states:

A centre lacks a heart if its core activities are dispersed too widely. The kinds of activity people expect to find close together include the main specialty and convenience shops, the supermarket and key community uses like the library. There are also advantages in locating activities that generate a lot of pedestrian traffic close to the heart of a centre, as this puts life on the street and increases the perception of public safety. Some of these uses fit readily into the main shopping strip itself. Others, such as land-hungry supermarkets and mixed use or residential developments, may need to be located immediately behind or to one side of the main centre of activity.[5]

Encouraging the provision of two supermarkets is included as an implementation action.

53 In respect of the Dandenong Road Precinct, the document identifies the potential of this precinct in terms of development opportunities, access and lack of interface with established residential areas. However, it states:

The railway line should in future be the northern boundary of a compact main shopping precinct, as it is a substantial barrier to pedestrian movement.

54 The objectives of the Dandenong Road Precinct are stated to be:

Promote in the area between the railway and Dandenong Road, residential and a mixture of other high density land uses complimentary to but not competing with the core retail area south of the railway, with preference given to uses that have synergies with the nearby railway station.[6]

55 The draft Carnegie UDF has never been adopted by the council. The planning officer's report to council on the planning permit application for this proposed development referred to this and stated:

The Draft Urban Design Framework is not, in planning terms and timing a seriously entertained document and, as such, should not be relied upon when making a decision for this application.

56 It was in light of this that at the same time as deciding to issue a notice of decision, which is the subject of these proceedings, the council resolved to support the preparation of an amendment to the Glen Eira Planning Scheme to implement a number of recommendations of the draft Carnegie UDF and write to the Minister for Planning requesting interim planning controls for the area of Carnegie Urban Village located between Dandenong Road and the railway line to give effect to the above changes. It also resolved to note "the potential negative economic impact on the existing Carnegie shopping centre of locating a major supermarket in Carnegie between Dandenong Road and the railway line".

57 The 2004 Design Vision for Carnegie is the only document setting out the draft Carnegie UDF that is in the public arena. In his evidence on behalf of the Council, Mr Mike Scott, who is a director of Planisphere and responsible for preparation of the draft Carnegie UDF, advised that the draft UDF has since been revised and updated by the consultant team to a point at which it is ready for formal council consideration. This 2005 version of the UDF apparently makes a number of substantive changes relevant to this matter in terms of being far more specific about the activities and land use recommendations for the area north of the railway line and includes rezoning recommendations. We say "apparent" because the 2005 version of the Carnegie UDF is not publicly available and has not been produced to the Tribunal or the applicant even though we were told that it was this document that the drafting of Amendment C46 was based upon.

58 Ultimately, as Mr Power submitted on behalf of the council, the status of both the 2004 and 2005 versions of the draft Carnegie UDF are irrelevant for the purpose of this proceeding. The policy is now part of the planning scheme. This overcomes any difficulties that the council may have had in relying upon the draft Carnegie UDF based on the fact that neither version has ever been adopted by council and hence fall outside the ambit of matters listed in section 60(1A)(g) of the Planning and Environment Act 1987 that must be taken into consideration before deciding on an application because neither is a strategic plan which has been adopted by a municipal council.

59 The Glen Eira Activity Centre Strategy was prepared by Peter McNabb and Associates Pty Ltd for the Glen Eira City Council and was issued for public comment in November 2004. It was a project undertaken by the council in the context of Melbourne 2030 and the council's review of its MSS. The objective of the project was to develop a strategy that will:

•

Encourage and promote a network of viable and attractive centres (with particular emphasis on the Neighbourhood and Local centres) that have a clear identity and future direction and are suited to meet the needs of the community

•

Consolidate, strengthen and enhance the existing network of centres and their individual performance in a metropolitan, regional and local context

•

Balance commercial aspirations with residential aspirations for the centres

60 The strategy introduced a new planning framework for Glen Eira's centres based on the following three types of activity centres, building on the framework on the MSS and Melbourne 2030:

•

Major Centres

•

Neighbourhood Centres

•

Local Centres

Recommended criteria for each type of centre were identified and in respect of Major Centres include:

•

An extensive mix of activities including retail, commercial, educational, entertainment and/or community facilities.

•

At least two existing supermarkets or a demonstrated capacity to have two supermarkets.

•

A large retail, commercial or education catchment area covering several suburbs.

•

Located on the Principal Public Transport network.

•

Potential to attract additional development in the form of retail, commercial or community service uses.

•

Suitable for residential development within and around the centre.

•

A total size of at least 30,000 sq m of retail and commercial development.

61 Carnegie is classified as a Major Centre. Its future role is identified as follows:

A major mixed use centre with specialist niches in professional and commercial services, bulky goods retailing, ethnic specialty food retailing and catering, community services and student services. A convenience retailing role for the Carnegie, Caulfield South and Malvern East communities. Residential development within and around the centre with an emphasis on student housing.

62 A key implementation task for Carnegie is to: Encourage the establishment of a second major supermarket in the centre. Further strategies identified for enhancing private buildings in Glen Eira's activity centres include:

•

Encourage quality buildings at gateway entrances to each centre, particularly the Major and Neighbourhood Centres, to better define the extent of the centre and contribute positively to their image.

•

Encourage a clearly defined built form at the retail core of centres with an important retailing role.

63 The Glen Eira Activity Centre Strategy was adopted by the council in March 2005.[7] As an adopted council strategic plan, the Glen Eira Activity Centre strategy is a document that must be considered pursuant to section 60(1A) of the Act.

64 The Minister's approval of Amendment C46 has the effect of requiring a planning permit to use the subject site for a shop, and alters the planning policy context for assessing the merits of the proposal in respect of the proposed retail uses and urban design. We agree with the council that clause 22.05 as amended is one of the policies that we must consider, but equally we must consider other policies in the planning scheme as well. If there are conflicting objectives and policies, then clause 11 of the SPPF requires them to be balanced in favour of net community benefit.

65 As a result of Amendment C46 and amendment of the permit application, the Tribunal must consider whether a permit should be granted for the use shop. At the time when the notice of decision was issued the council did not have to decide whether to grant a permit for this use. Shop was an as of right use. The plans of the development accompanying the permit application included a supermarket with a floor area of 3200m2. The council approved the development but included conditions to ensure that the proposed supermarket does not have a floor area exceeding 1500m2. The purpose of these conditions is to prevent the establishment of a main line supermarket on the site. Council did not object to the rest of the floor area being used for other retail purposes and indeed condition 1(a) provides for this.

66 Despite some apparent wavering during the course of the hearing, the council's formal position remains unchanged. It supports the grant of a permit for the use 'shop' on condition there is a reduction in the supermarket component of the proposal to a maximum leasable floor area of 1500m2. Additional retail uses may be incorporated into the remaining ground floor area of the building. Based on the amended plans, this will total 3434m2. This figure includes the balance of the supermarket floor area of 2229m2 (3729m2 less 1500m2) plus 1205m2 of floor area devoted to other shops and kiosk (see description of the proposal and schedule floor areas in para 25). In addition, the development will include restricted retail premises with a floor area of 6325m2. Shop includes restricted retail premises. Thus the total floor area devoted to the use shop in the development will be 11,260m2.

67 However, whilst the council may have ultimately maintained a consistent position, its primary witness, Mr Scott, did not. In his witness report circulated prior to the hearing, Mr Scott expressed support for the notice of decision with the conditions imposing a floor space limit on the supermarket component. When he came to present his oral evidence, he changed his view. In his opinion, the introduction of Amendment C46 meant that the development should be substantially redesigned and therefore the application for planning permit should be refused.

68 The resident objectors in their application for review against the notice of decision did not oppose the use of the site for retail purposes but were primarily concerned about traffic and amenity related issues.

69 The permit applicant clearly supports the grant of a permit for the use shop. At this stage, it is content to accept a condition that requires a reduction in the supermarket component of the proposal to a maximum leaseable floor area of 1500m2, although it made clear that its ultimate objective is to establish a full line supermarket with floor area of approximately 3700m2 on the site.

70 In deciding whether to grant a permit for the use 'shop' we need to be satisfied on planning grounds that the site is suitable to be used for the purpose of shop having a total floor area of 11,260m2. This is a large amount of retail floor space. There is no distinction drawn between different types of shop (apart from adult sex book shop) in the Business 1 Zone. Notwithstanding Amendment C46, shop remains a section 1 use. It is the amount of floor area that is the trigger for the need for a permit for use. The amount of floor area is therefore of particular relevance in deciding whether to grant a permit for use more so than whether the use for shop is suitable in this location.

71 A further relevant question is the extent to which it is appropriate to distinguish between different types of shop use in deciding whether to grant a permit in this location. This is because the concerns expressed by both the council and Mr Scott with respect to this proposal turn on the amount of floor space that is proposed to be devoted to one particular type of shop use, namely supermarket, and concern only its proposed floor area. In reliance upon Amendment C46, they categorise a supermarket (although seemingly only a supermarket in excess of 1500m2) as core retailing and say that this type of shop is contrary to the policy introduced by Amendment C46 in clause 22.05 for the Dandenong Road Precinct. Yet any other type of shop, irrespective of size, does not appear to be of concern and, by inference, appears to be regarded in policy terms by the council and Mr Scott as non- core retailing.

72 However core retailing and non core retailing are not terms that are defined in the planning scheme or even in clause 22.05 itself. It must therefore be questioned whether this is a valid distinction to make by way of a local planning policy and whether it has any relation to the amount of floor area proposed.

73 We accept the council's submission that it is not the Tribunal's role to question the merits of the policy introduced by Amendment C46: that will be the role of the panel that ultimately assesses the permanent form of the amendment when it is eventually placed on public exhibition. We accept that the policy forms part of the planning scheme and must be considered by the Tribunal in reaching its decision. The real question is what this policy means and what weight should be placed upon it when considering this permit application in conjunction with the rest of the planning policy framework in the scheme.

74 In light of the contention that has surrounded this particular proposal, not least being the specific aim of the draft Carnegie UDF and Amendment C46 to try and shop the establishment of a supermarket on this site, and the level of intervention in respect of the planning controls leading up to the hearing, we consider that these are issues we should address. We must be satisfied on the merits that this use and development proposal represents a net community benefit. We do not consider it would be appropriate to simply slide away from a consideration of the merits on the basis that a notice of decision has been issued and certain conditions are now agreed to.

75 It must be squarely acknowledged that it is the proposal to establish a major supermarket on the site that is the main cause of concern for council. When the council wrote to the Minister for Planning requesting interim controls for the Carnegie Major Activity Centre between Dandenong Road and the railway line, it considered that a "major supermarket as proposed represents a significant threat to the Carnegie activity centre sufficient to warrant Ministerial intervention as offered". This was also the tenor of Mr Scott's written evidence, who stated in his conclusion:

•

A large supermarket should not be located at a peripheral location such as 2-18 Koornang Road. The Urban Design Framework that my company has produced would not allow it. A large supermarket north of the railway line would undermine the compactness of the Retail Core of the centre. This would be exacerbated by the physical barrier caused by the railway line. There is a significant danger that it would increase car dependency among centre uses, and reduce the volume of pedestrian traffic in the Retail Core designated in the UDF, in addition to any adverse economic impacts. The kinds of uses that are suitable in such a peripheral location are non core retail and service uses, particularly, on this large site located on a main road, major space users selling bulkier goods.

•

The Carnegie Major Activity Centre is an attractive and compact centre, one that has many of the essential characteristics advocated by activity centre policies in more than Melbourne 2030. These characteristics would be undermined significantly by the large supermarket component of the proposed development. There is a sound basis for accepting that expansion or redevelopment of the existing supermarket is, or will in the foreseeable future, be a practical proposition.

•

I am therefore of the opinion that a floor space limit of the kind envisaged by the council in the conditions imposed on the NOD is warranted.

76 In our view, the economic threat represented by a major supermarket on the subject site to the Carnegie shopping centre has not been established. There are assertions made to this effect in the 2004 document Design Vision for Carnegie but the document also states that the size of the retail market in the suburbs which the Carnegie shopping centre serves is predicted to grow, and that the mix of services offered by the centre needs to expand to keep pace with the anticipated growth and demand for retail and other services. The need for a second supermarket is identified in both the draft Carnegie UDF and the Glen Eira Activity Centre Strategy but there is no mention of this in Amendment C46.

77 The problem is, as expressed in the council officer's report to council regarding this planning permit application, that:

While the draft Urban Design Framework calls for a second supermarket south of the railway line there are no apparent site opportunities identified. Whilst this site [ie the subject site] has inherent risks for the dynamics of the centre, it [is] not a surprise that this site would be targeted as Carnegie's only land opportunity for a second supermarket.

78 Concerns are expressed that a second supermarket on the subject site "could erode the economic viability of the existing core retailing south of the railway line particularly in the short term, if not managed well", and that if the proposal goes ahead it could result in the closure of the current Safeway or limit its potential for expansion. The council officer's report also states that the loss of the current supermarket south of the railway line "could have a greater potential impact on the centre than any expansion to Chadstone would have." The following table was produced in the council officer's report to illustrate the economic impact which the different development scenarios could have on the Carnegie centre.

New supermarket establishes north of railway line (e.g. Betta Electrical site)

The retail heart of the centre south of the railway line would decline as prime retail area of the centre would shift to north of the railway line

New supermarket establishes north of railway line (e.g. Betta Electrical site)

This would dilute the retail heart of the centre and shift some activity north of the railway line but the centre's retail heart would survive providing the Safeway remained strong

New supermarket establishes south of railway line or Safeway expands or both

A bulky goods or homemaker based retail trader establishes north of the railway line (e.g. Betta Electrical site)

The retail heart of the centre south of the railway line would remain strong (or be strengthened by having two supermarkets as anchors)

A bulky goods or homemaker based retail trader north of the railway line would consolidate the role of the northern end of the centre

There is a high degree of difficulty for a supermarket to establish south of the railway line due to limited availability of land.

79 This table is based on advice given by the council's consultants, Essential Economics, on the implications of the proposed development on the Betta Electrical site.

80 An expert witness statement was prepared by John Henshall and Sean Stephens of Essential Economics Pty Ltd, which was filed and served prior to the hearing. The report was submitted in evidence by the council although neither Mr Henshall nor Mr Stephens were called to give evidence in light of the changed circumstances. Nevertheless it is relevant to refer to this statement for an assessment of the importance of the existing Safeway Supermarket and the likelihood of establishing a second supermarket south of the railway line. On these issues the report states:

3.19 In Carnegie therefore, the existing Safeway supermarket is a fundamentally important component of the core retail and commercial sector to the south of the rail line. The store provides the centre with a trade area catchment which is substantially larger than what would be the case without a supermarket presence, and the store attracts customer traffic which is critical to the strong performance of the other specialty retail and commercial uses currently operating in the core of the centre.

3.20 As with any forecast and strategic study, the ultimate outcome "on the ground" is dependent on the prevailing retail and property economic conditions and individual decision of investors, retailers and property owners. We recognise that there are currently very real physical limitations to the addition of a second supermarket south of the rail line, and there can be no guarantee that a second supermarket south of the rail line will ultimately be built in this area despite the intentions of the draft UDF and the benefits such a store would bring to the overall Carnegie centre and in particular the existing retail core in the south. However, it was considered that a second supermarket south of the rail line would be "ideal", and this was therefore recommended n our input to the draft UDF based on the expectation that in the future site consolidation and development opportunities would become apparent.

3.21 It is clear from retail analysis undertaken for the UDF, that in order to maintain the strong "neighbourhood" shopping role served by the southern or core par of the Carnegie centre, it will be critical to ensure that there is an ongoing supermarket presence in this part of the centre which integrates with and supports the other traders in the centre.

81 These views reiterate earlier advice given to council by Essential Economics regarding this proposal.

82 To overcome these concerns about the potential loss of the existing supermarket south of the rail line, the applicant advised that Safeway has confirmed that its existing lease of the store in Kokaribb Road does not expire until 2017; it is renegotiating a new lease of 40 years with a further option; and it contemplates refurbishment of the existing store to modern standards in early 2006. This advice was conveyed to the council in July 2005 in a submission that also records the difficulty Safeway had in creating any expansion opportunities for its existing store or finding any alternative supermarket sites south of the rail line. In light of this, the Essential Economics witness report concludes that these undertakings would satisfy the concerns raised in relation to the potential for the loss of the supermarket in the Carnegie centre south of the rail line, although a rider is added about the difficulties of ensuring that these undertakings are followed through.

83 Perhaps more important is the evidence of Essential Economics regarding the need for a second supermarket at Carnegie, "particularly in the current absence of a suitable site in the southern part of the centre." The witness report identifies that the current strength of the Carnegie centre is its strong supermarket and food retail offer. The report notes that the "convenience, vibrancy and compact nature of the centre offers a significant competitive advantage over other neighbouring centres, in particular Chadstone and Caulfield", which was identified in the community consultation process associated with preparation of the draft Carnegie UDF. The report states that if possible, this competitive advantage should be maintained. The report reviews the proposed expansions in competing centres and states:

These likely developments in competing centres present a strategic argument that Carnegie should continue to provide a competitive retail offer, including a strong supermarket presence. In our opinion, this would ideally comprise an expansion to the existing Safeway store, although proposals for a second supermarket at the centre should also be considered. Given the apparent existing physical difficulties associated with the addition of a second supermarket south of the rail line, the only alternate location for such a second supermarket at this point of time is north of the rail line.

In our opinion, the proposed development would facilitate the addition of a second major supermarket to the Carnegie centre as advocated by the existing draft UDF, although not necessarily in a location which is considered ideal for the centre. It would represent a "second best" outcome in that the centre would gain an additional anchor tenant (i.e. a 2nd supermarket assuming the existing store continues trading) and an improvement to the centre's overall retail offer, as a response to increased competition from centres such as Chadstone and Caulfield. This would be at the expense however, of aspects related to the high degree of integration which currently characterises the core retail area of the Carnegie Centre.

84 The economic evidence presented by Mr Shimmin of Urbis JHD on behalf of the applicant is that there is both a need and demand for the proposed development. The trade area is under provided in terms of supermarket floor space. Carnegie residents are not currently provided with a large, modern supermarket capable of accommodating the full range of products generally expected by consumers. The proposal will strengthen the Carnegie centre as a whole, thereby providing it with stronger competitive footing against emerging competition elsewhere. Despite initial impacts, trading levels in the existing Carnegie strip are still likely to be relatively strong. Essential Economics consider that the analysis presented by Urbis JHD is sound.

85 We consider that the evidence, not only of the applicant but also the council's own economic experts, leads to two clear conclusions:

•

There is a need for a second supermarket to be located at the Carnegie Activity Centre irrespective of whether this is north or south of the rail line. A second supermarket is important in terms of maintaining the role of Carnegie in the hierarchy of commercial centres within the municipality and in a regional context, and to ensure that retail requirements are met. A second supermarket will also meet the further MSS strategy to retain the highest possible share of retail expenditure of residents through maintenance of the shopping hierarchy and encouragement of viable retail expansion (see clause 21.06). The provision of a second supermarket will meet both community needs and expectations for improved and expanded retail facilities.

•

The establishment of a second supermarket will not erode the economic viability of the existing shopping centre south of the rail line. It will not jeopardise the continued operation and refurbishment of the existing Safeway supermarket.

86 In our view, it is more important that a second supermarket be located within the Carnegie Activity Centre, even if it is north of the rail line, than for no second supermarket to be established in the foreseeable future. We consider that this would be the likely outcome if the only potential location for a second supermarket is confined to south of the rail line. We are not persuaded that the rail line represents a barrier that justifies distinguishing between those parts of the centre north and south of it. We therefore consider that the reservations expressed in the Essential Economics material based on this factor are not sufficient to outweigh the support they otherwise give for a second supermarket on the subject site.

87 We are therefore unsure in what way the council sees a major supermarket as proposed as representing "a significant threat to the Carnegie Activity Centre sufficient to warrant ministerial intervention." Our finding is that it will not represent an economic threat to either the existing supermarket or to the balance of the retail centre, but rather it will strengthen the Carnegie centre as a whole and provide it with a stronger competitive footing against emerging competition elsewhere.

88 The evidence and conclusions of both economic consultants related to a major supermarket of 3,200m2. We are therefore satisfied that notwithstanding condition 1(a), which restricts a supermarket to 1500m2, there are no reasons why, on economic grounds, a supermarket, large or small, cannot be built on the subject site. No issues at any stage of the proceeding were raised with respect to the proposed floor area of any other sort of shop.

89 The next question to consider is whether there are any other reasons based on policy why a permit should not be granted for the use shop and for a development with a retail floor area of 11,260m2.

90 One of the new policies introduced by Amendment C46 into clause 22.05 for the Dandenong Road Precinct is that:

•

Where retail uses are encouraged in this precinct, avoid retail that competes directly with the Koornang Road rail strip and supermarket(s) south of the railway.

91 It is possible that the intent of this policy was to safeguard the continued viability and retention of the existing Safeway supermarket south of the rail line. However, as we have found, a new supermarket north of the rail line will not affect the existing supermarket. We also consider that the proposed development, including the supermarket, will operate to strengthen the Carnegie centre as a whole and stimulate the Koornang Road retail strip south of the rail line. Therefore, if this was the reason for inclusion of this policy, granting the permit would not be contrary to its objective. The problem is that no such objective is stated explicitly stated in the Urban Villages Policy in clause 22.05 or anywhere else in the planning scheme.

92 The objectives against which the policies introduced by Amendment C46, which specifically relate to Carnegie, must be tested are those found in clause 22.05-2. Guidance may be found in the policy basis in clause 22.05-1 and the introductory comments relating to Carnegie in clause 22.05-3. The relevant objectives in clause 22.05-2 are:

•

To encourage economic and employment generating development which is appropriate to the desired qualities and character of the area.

•

To consolidate retail functions within existing strip shopping centres.

93 The description of Carnegie in clause 22.05-3 states that:

The retail strip provides shopping convenience as it contains a range of retail (notably ethnic grocery stores and opportunity shops) and commercial/professional uses. Of the three urban village areas identified, it has the shortest shopping strip, concentrated along Koornang Road between Neerim Road and Dandenong Road and down the side streets running off Koornang Road. These should be contained. There are also industrial uses - they are concentrated in Egan Street.

Carnegie has a wide mix of uses that provides varied employment opportunities and ensures the continuation of its role as a sub-regional centre despite competition from nearby Murrumbeena and Glen Huntly centres, and the Chadstone shopping centre.

94 There is nothing within clause 22.05 to suggest that sub-areas within the existing retail strip should be protected from competition. The only support for such action might be based on the Commercial Centres Policy in clause 22.04. As noted earlier[8], clause 22.04 includes policies to protect the existing retail hierarchy, including:

•

To avoid undermining the existing retail structure and roles of individual centres, new supermarket developments and other large retail developments are not to be developed on freestanding sites where they do not complement surrounding retail uses.

95 However, this is a policy that is aimed at protecting the role of a centre, not protecting existing businesses from competition.

96 It is a long established principle of planning law that it is not the role of planning to regulate competition. This principle was established by the High Court of Australia in Kentucky Fried Chicken Pty Ltd v Gantidis and Anor[9] which held that if the shopping facilities presently enjoyed by a community or planned for in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that is a consideration to be taken into account in the matter of town planning. It does not cease to be so because the profitability of individual existing businesses is at one and the same time also threatened by the new competition afforded by that new development. But the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, is not a relevant town planning consideration.

97 In the absence of any real prospect of significant adverse impact on the extent and adequacy of facilities available to the local community, the policy in clause 22.05 to avoid retail in the Dandenong Road Precinct that competes directly with the Koornang Road retail strip and supermarket south of the rail line cannot be supported. No such evidence exists, and indeed the evidence available points to an opposite effect. On this basis, we find that the policy is contrary to planning law as well as being contrary to planning policy found elsewhere in the planning scheme.

98 Throughout the SPPF and the LPPF there is a clear intention that new and expanded retail facilities should be located in existing core retail areas as a means of strengthening and enhancing their roles as activity centres. The purpose of the Business 1 Zone is to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

99 The term core retail area is used in various contexts within the LPPF and the draft Carnegie UDF. In our view, a distinction needs to be drawn between the notion of what constitutes the core retail area of the Carnegie urban village/major activity centre and notions of core retailing and non-core retailing, which are found in the draft Carnegie UDF and translated into Amendment C46. We regard them as being different concepts although we perceive a tendency in the draft Carnegie UDF to slide from one to the other. We address the concepts of core retailing and non-core retailing later. So far as what constitutes the core retail area at Carnegie, this must be considered in the context of the total area that constitutes the Carnegie urban village/major activity centre. It is clear from the map of Carnegie in the Urban Villages Policy (clause 22.05) both pre and post Amendment C46 that the Carnegie urban village/major activity centre comprises an extensive area surrounding the Retail Hub, which is centred along Koornang Road (see Appendix B).

100 We consider that the term core retail area is used descriptively throughout the planning scheme to refer to the central spine of shops found in an activity centre, which in the case of Carnegie extends from Dandenong Road to Neerim Road. The core retail area is to be distinguished from peripheral retail areas. In the case of Carnegie, this would include the area along Dandenong Road west of the Rosstown Hotel. Typically the core retail area of any activity centre is zoned Business 1. In our view, from both a physical and historic perspective, the subject site is clearly within the core retail area of the Carnegie urban village/major activity centre.

101 We are therefore satisfied that the zoning of the subject land and its location in the core retail area of a major activity centre makes it a suitable location for a large new retail development of the type proposed.

102 Reading the rest of the SPPF and LPPF, it is policy that higher density residential development will be located in major activity centres. In our view, this would include the various residential precincts of the Carnegie urban village. Reading those parts of the draft Carnegie UDF relating to scale of development and character of existing residential areas, there is a clear intention indicated to concentrate increased development intensity and high buildings in the Dandenong Road Precinct "while protecting the amenity of surrounding areas". The surrounding existing residential areas being referred to in this context are the residential precincts within the Carnegie urban village where it is stated that "new buildings should not be more than two storeys higher than existing buildings, and be no more than three storeys high (ResCode requirements)". This understanding is reflected in the explanatory report for Amendment C46 which states:

Through the Urban Design Framework planning process, more depth and detail has been added to both the Urban Villages and Housing Diversity Areas Policies with the "Dandenong Road Precinct" in Carnegie designated as acceptable for major change and identified as the preferred location for high density, multi storey residential and mixed use development within the Carnegie urban village. It is important that such an area is identified as having this potential as it enables council to encourage more moderate forms of development elsewhere in the Centre.

103 This desire for "more moderate forms of development" elsewhere in the Carnegie major activity centre, and the potential role of the Dandenong Road Precinct in providing an alternative location for higher density residential development is explained in the council's letter to the Minister for Planning dated 22 April 2005, which requested interim structure plan controls. The letter stated:

The area of Carnegie major activity centre which is located between Dandenong Road and the railway line has been identified in the council's strategic planning work as the key redevelopment precinct in this centre. In this precinct, Council is hoping to accommodate a large proportion of the centre's future housing needs in accordance with Melbourne 2030.

104 Whether it is appropriate to 'water down' the potential of the residential precincts within the Carnegie major activity centre in this way is a matter that the panel considering the permanent form of controls introduced by Amendment C46 will need to address. However, even if it is intended that the Dandenong Road Precinct should focus more on accommodating the residential needs of the Carnegie major activity centre and less on its retail and other commercial needs, it is still a large precinct of which the subject site forms only part. We do not consider that approving the proposed use and development will undermine such a purpose.

105 We note that when the council issued its notice of decision, it did not seek to introduce conditions requiring the inclusion of any residential component. Nor was the proposed development rejected on these grounds and, despite Mr Scott's change in evidence, the council did not change its stance on this issue at the hearing and attempt to argue that the site would be better used for residential purposes. There is therefore no basis, in our view, for saying that the subject site is not well suited to use and development for retail purposes.

106 At the centre of any interpretation of Amendment C46 in the context of this proposal is the distinction drawn in relation to the Dandenong Road Precinct between core retailing and non-core retailing. The policy in clause 22.05 states that non-core retailing is to be encouraged in Koornang Road and Dandenong Road.

107 The planning scheme does not define these terms and no assistance is derived from the draft Carnegie UDF. The council perceives core retailing to include a supermarket. Because it is only the supermarket component of the proposed development that the council objects to, arguably non-core retailing includes any other form of shop or retailing.

108 We do not consider it is appropriate for local planning policy to draw distinctions between types of retailing that are not recognised in the planning scheme. Backdoor attempts to introduce sub-categories of retailing not otherwise recognised by the planning scheme have been rejected in the past. For example, Amendment 36 to the Greater Bendigo Planning Scheme (Rocklea Home Centre) was an attempt to rezone land to Business 1 Zone but then to control the size of tenancies and type of goods sold by means of a schedule to clause 52.03 (Specific Sites and Exclusions). This attempt was soundly rejected by the panel, which said:

The use of Clause 52.03 is a valid planning tool, however in the opinion of this Panel it should not be used to circumvent the correct use and intent of the primary business (or other) zones of the planning scheme. If those zones are found not to be appropriate for the form of retail development for which they were intended, then they need to be properly reviewed. If retail development is emerging in different ways, mixes and formats, these emerging trends need to be taken into account through an appropriate and transparent review process, not as the result of, or through this Panel hearing.[10]

109 Retailing is a genie that keeps escaping from the statutory planning bottle. No sooner are current retail practices nailed into a set of planning scheme definitions, than retail practice tends to take off in new directions making current definitions inadequate. This is evidenced by the struggle that statutory planning has had with restricted retail premises (formerly peripheral sales), big box retailing and now the growth of discount bargain department stores such as The Warehouse Group.

110 The fact is that it is extremely difficult to be categoric about the type of goods that can or cannot be permitted to be sold from different outlets with any consistency. For example, restricted retail premises is a category of shops selling bulky goods. The original rationale for identifying this as a separate use that could be permitted in locations where other shops were not permitted rested on the need such retailing had for large floor areas to display bulky goods but where the low turnover per square metre meant that high value floor space in traditional retail centres was too expensive. Hence bulky goods premises started to locate in industrial zones where low cost, large area rentals were available. Eventually restricted retailing was separately defined (initially as peripheral sales, now as restricted retail premises) and brought within the planning scheme framework.

111 However, the nature of goods sold is rapidly changing, and much equipment and many goods falling within the categories set out in the definition of restricted retail premises are no longer large or bulky thus undermining one of the original reasons for establishing a separate definition. The lines between categories of goods have also blurred and become increasingly irrelevant with advancing technology. This is illustrated in the Tribunal's recent decision in Woolworths Limited v Warrnambool City Council[11](known as The Warehouse Group case). This was a case involving The Warehouse Group and the question was whether it was using land for the sale or hire of goods other than goods which fell within the category specified in the definition of restricted retail premises. The Tribunal was required to consider the sub-category of goods of "videos", which is included in that definition. The Tribunal drew a distinction between music and blank CDs, which it found not to come within the meaning of videos and which consequently could not be sold from restricted retail premises, and DVDs, which were held to come within the meaning of videos (applying a purposive approach) and which consequently could be sold from restricted retail premises. Yet to look at the two, there is no difference in appearance and the size of both CDs and DVDs is compact to say the least.

112 Changes in technology and marketing, lifestyles, consumption patterns, the mix of activities that now occurs within any one premises (for example, café has become an accepted part of many retail outlets from books to cars to clothes), and the growth of shopping as a leisure activity, all mean that definitions are continually falling behind where the retail industry currently stands and where it is heading.

113 In our view, The Warehouse Group case[12] clearly illustrates the type of disputes that can and will arise whenever there are planning scheme distinctions drawn between different categories of a generic use, such as shop, that dispend on categorising goods sold. Such disputes can consume an inordinate amount of resources. It must be questioned whether the degree of minutiae involved in resolving such disputes necessarily leads to better planning outcomes. Yet this is the path down which attempts to distinguish between core and non-core retailing will lead.

114 In Amendment C46 core retailing and non-core retailing appear to be intended as sub-categories of the use shop. No indicators are provided as to how core retailing and non-core retailing will be distinguished. It seems as though food might be the basis because it is evident that a supermarket is seen as core retailing. But immediately the issue is raised as to where this leaves other food retailers. Are the existing Asian grocery shops now located north of the rail line in Koornang Road to be regarded as non-core retailing and hence contrary to policy? Would this policy preclude other food retailers, for example specialty coffee, confectionary or cake shops, from establishing north of the rail line? How could the policy be enforced given the existing use rights enjoyed by current shops and in light of the permit now proposed to be granted for the use shop in respect of the subject site? When does a supermarket stop being non-core retailing and become core retailing?

115 In our view, any move to introduce such a distinction into the planning scheme by way of policy is fraught with difficulty, ambiguity and potential conflict. We find there is no strategic basis behind it. It flies in the face of contemporary practice and trends in the retail industry and it has no statutory basis. In our view, such distinctions should only be introduced by way of changes to definitions in the planning scheme after rigorous analysis and as part of an open, transparent process.

116 With respect to the current proposal, we find that it is not possible to categorise the proposed consideration of shop types as core or non-core retailing in any meaningful way. Ultimately, it is not a helpful exercise either as the weight of other planning policy for activity centres and urban villages supports this type of use and development and draws no distinction between sub-categories of shop in this type of location.

117 In addressing the issue of core and non-core retail, Mr Power invited the Tribunal's direct consideration of this aspect of the policy introduced by Amendment C46. He said:

6.4 It is now policy, but was not when Council assessed the permit application, to encourage high density residential development and non-core retailing, hospitality, entertainment and commercial uses addressed to Dandenong Road. It is also policy to avoid any retail that competes directly with the Koornang retail strip and supermarket(s) south of the railway.

6.5 In light of this, in assessing a planning permit application to use the site for a shop the Tribunal must be satisfied on the information before it that the proposed supermarket (full size or otherwise) and other specialty shops conform with these policies.

118 We consider that it is not just these policies (ie those introduced by Amendment C46) that we must assess this proposal against, but the full panoply of state and local planning policy. We find that the distinction between core retailing and non-core retailing (whatever that might be) is contrary to existing planning scheme definitions, and the way in which the policy is being applied is contrary to the SPPF and other aspects of the LPPF that encourage greater diversity and opportunities for retail within the Carnegie shopping centre. We find also that such a distinction is contrary to sound planning practice in so far as it introduces uncertainty, discrimination and a potential source of ongoing dispute for no good planning outcome.

119 As previously stated, we do not find that the proposed use or development is likely to adversely affect the viability or economic performance of the general Carnegie shopping centre or specifically, that part of the shopping centre south of the rail line. On the contrary, we consider that the proposed use and development will consolidate and enhance the retail function of the Carnegie major activity centre and strengthen its attraction in the face of increased competition from other centres.

120 We consider that the proposal will expand the variety of shops and services in the Carnegie centre and that if this particular proposal did not proceed with a supermarket component, then the community is likely to be deprived of a second supermarket, which it is generally acknowledged is needed. We agree with the submission by Ms Quigley on behalf of the applicant that:

When the new local policy in clause 22.05 is read in the context of the purpose of the zone, overall activity and commercial centre policy and the local policy basis for Glen Eira's urban villages which calls for competitive retail outlets, it is questionable how much weight can be given to the apparent prescription on a core retail north of the railway. Meeting community needs, including for retail, is a fundamental plank of policy; the need for a second supermarket is recognised in all the documents said to underpin the interim policy and for the reasonable time being the only location available for a second supermarket is north of the railway line. The fair inference from Mr Scott's evidence is that he would rather deprive the centre of a second supermarket than see it located north of the railway line.

121 It is therefore our conclusion that no weight can be placed upon the policy in clause 22.05 for the Dandenong Road Precinct to avoid retail that competes directly with the Koornang Road retail strip and supermarket south of the railway. Such a policy would be contrary to planning law and sound planning practice. Equally, we find that the policy encouraging (only) non-core retailing north of the rail line cannot be supported for the reasons given. In all these matters, we reject the evidence of Mr Scott.

122 A permit is proposed to be granted to use the subject land for shop (without constraints) and to construct buildings and works with a total floor area for shop of 11,260m2. The applicant has willingly accepted (for the purpose of this proceeding) a condition that will limit the floor area to be used for a supermarket to 1500m2. We find that whether or not this condition is included, the grant of the permit is supported by the overwhelming weight of state and local policy found within the planning scheme; that these strong policy imperatives outweigh any aspects of Amendment C46 to the contrary; and the grant of a permit will result in a net community benefit.

123 The subject site is a key gateway site, capable of supporting a substantial building and one which ought to be boldly expressed. We agree with Ms Hansen's evidence and her observation that the building façade should be true to its function.

124 The design changes that the council is seeking in order to satisfy the requirements of condition 1(b) are:

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Reduce height of eastern elevation from 12.83 to 10.5m near residential boundaries.

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Step up from existing shops along Koornang Road frontage.

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Wrap with an active frontage use on Arawatta Street.

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Replace the three advertising panels on Koornang Road with appropriately scaled windows scaled to existing character.

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Make the principal signage on the Koornang/Dandenong corner announce the Carnegie centre.

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Replace the patterned wall treatment with a pattern of a finer grain.

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Introduce more variation of plan (vertical articulation) in the large expanses of concrete panelled walls.

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Introduce more variation of parapet line on the long elevations.

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Revise the surface design treatment to use, line, form, change of materials and colour, shapes and lines that express the proportions and dimensions and scale of the existing two storey shops on Koornang Road.

•

Make the canopies on Koornang Road foot path continuous and lowered.

125 Amended plans have been prepared which modify some of the details of the proposal. The plans were presented by the architect, Mr Grant Beck, who explained the practical, operational and design concepts informing the arrangement of uses, facilities and circulation patterns; urban design; built form; architectural design; and access and connections.

126 In her evidence, Ms Hansen expressed some concern about the treatment of the Dandenong Road elevation. She recommended some changes to assist in a better articulated and more visually interesting façade to Dandenong Road recognising that the design wraps the retail frontages around from Koornang Road to extend along part of this main road frontage. A further amendment to the plans was produced at the hearing which responded to this concern. We consider that the changes proposed represent an improvement and pay more appropriate attention to the presentation of the Dandenong Road façade.

127 Mr Scott was critical of numerous details in the design. Some of those were ill founded and based on a misreading of the plans and errors in scaling estimated heights from the plans. Fundamentally, Mr Scott simply does not like the appearance, design or style of the development. In his view:

...The development remains internally focussed, rather than street oriented. All of the other frontages are quite outstandingly poor as street architecture, and are unacceptable in my opinion. In addition, the scale of advertising signage, fenestration, surface design treatments etc (where they are proposed) is excessively large on elevations other than those directly facing Dandenong Road. A larger scale of detailing is warranted along Dandenong Road because of the wide roadway and the fact that it is a major traffic artery. It is not appropriate on other elevations that will be seen from residential areas and in the context of the 'fine grain' architecture of much of the remainder of the centre.

128 This is a large, bold, building of contemporary design that does not seek to replicate the style of architecture found elsewhere in Koornang Road. To do so would, in our view, be a mistake. The section of Koornang Road north of the rail line can be 'read' differently from the rest of Koornang Road south of the rail line and indeed the draft Carnegie UDF acknowledges this and identifies it as a location for large buildings. The existing shops in this section of Koornang Road are quite undistinguished architecturally and it is not unreasonable to assume that they will be redeveloped over time. In our view, it is unnecessary and an unreasonable limitation on the development potential of the subject site to require further reductions in height, setbacks or fussy detailing along the Koornang Road frontage to create "a more gradual transition" between the existing shops and the proposed development. We consider that the scale of the development, the degree of articulation and the setbacks proposed along all the various elevations are acceptable for this type of development. Where there are large expanses of precast concrete panels they are proposed to be patterned, coloured and stepped back, all of which will avoid a typical 'big box' appearance especially when viewed from a distance. It is important to recognise that large format retailers tend to dictate 'big box' floor plates. Given the aspiration of the council for bulky goods retailing along Dandenong Road, this development represents the form of building which will typically house such uses.

129 The council and Mr Scott were critical of the prominence, size and extent of advertising. A feature of the design fronting the retail components of the development in Dandenong Road and Koornang Road are a series of panels with 'environmental lifestyle graphics'. These are not signs in the conventional sense but rather will contain images relevant to the retail tenancies. According to Mr Beck, the panels are incorporated into the architectural design of the façade to avoid the risk of signage additions at later stages that can detract from the architectural quality of the project. Lighting will be an important component of the impression projected by the images. Mr Scott suggested that the environmental lifestyle graphics should be replaced by windows but we disagree. Evidence was given by Mr Beck that windows at upper levels cause problems for tenants and are frequently obscured by one means or another. We can see no benefits associated with requiring windows. The environmental lifestyle graphics add visual interest, are true to the retail function of the building and are far preferable to windows.

130 We are satisfied that the infill glass panels along the Koornang Street frontage will provide adequate weather protection but avoiding a too heavy or uniform structure above the footpath.

131 We consider that Mr Scott's suggestion of glass panels along the Arawatta Street frontage in front of the loading bay area is quite impractical and they would be an inevitable target for vandals. The location of the loading area opposite the light industry uses in Arawatta Street and the basic requirement to keep the loading at grade and separate from the car park access mean that the relationship between the loading area and Arawatta Street in terms of introduction of a landscaping setback and a perforated metal screen is acceptable.

132 There was a suggestion by Mr Scott that a residential component should be included along the Arawatta Street frontage. We consider such a notion to be ill conceived. On residential amenity grounds alone, such dwellings would be in the shadow of the main building with an outlook to a mish mash of light industrial activities. More significantly, it reinforces our perception that Mr Scott would prefer to see some entirely different development on the site.

133 Our role is to assess the development as proposed, not to redesign it. We have had regard to the design and built form provisions of the SPPF (clause 19.3) and to the strategies for Urban Villages set out in clause 21.06, which seek to ensure that commercial centres have a high standard of urban design and are attractive and appealing to potential customers, traders and investors. We have assessed these issues of policy and the evidence presented to us about urban design issues at the hearing and consider that, with the amendments now proposed, this development represents a design outcome that will be a significant improvement of this highly prominent site and in conjunction with the Rosstown Hotel, will provide a well defined entry to the Carnegie shopping centre. The design, height and scale are entirely appropriate given the context and visual prominence of the site. The public realm will be significantly improved along Koornang Road, which is the main pedestrian thoroughfare for this part of the activity centre. Active street frontages are proposed with adequate weather protection. Overall, we consider the development will introduce visual interest and architectural quality to the Carnegie activity centre and to Dandenong Road generally and is likely to become a local landmark.

PEDESTRAIN ACCESS DANDENONG ROAD TO ARAWATTA STREET

134 Condition 1(t) of the notice of decision requires provision of a separate pedestrian access between Dandenong Road and Arawatta Street along the western side of the accessway on the eastern boundary of the site whilst still maintaining a landscape bed along the eastern abuttal. An outcome of this requirement would necessitate reducing the building in size equivalent to the width of the pedestrian access. The basis for this requirement is found in the draft Carnegie UDF. A de facto pedestrian link currently exists through the open car park now on the site. The development proposes a 1.9 metre wide landscaping strip along the eastern boundary beside sloping vehicle ramps giving access to the basement car parks from Arawatta Street and Dandenong Road.

135 The separate pedestrian access is opposed on planning, urban design, safety and security grounds. It was not supported by either of traffic experts, or by Ms Hansen, Mr Beck or Mr Borelli.

136 We do not consider that such a pedestrian accessway can be supported. The eastern side of the development is designated primarily for vehicle movement in and out of the basement car park. The inclusion of a pedestrian route which follows the basement car park entry ramp would be inappropriate and unnecessary. There are no specific destinations that it would connect and we can see no reason for providing a pedestrian accessway just for its own sake.

137 The link will lack adequate public surveillance during the day and night as the design along this edge is solid walls with no opportunities for adjacent properties to overlook and observe pedestrians using such a link. By contrast, the use of Koornang Road as a pedestrian route to and from this site between Dandenong Road, the Carnegie railway station and the rest of the Carnegie Shopping Centre is a far more desirable link. From a planning perspective, pedestrian movement should be channelled by designated footpaths along Koornang Road, which is the main retail strip with excellent public surveillance from existing activities and substantial traffic volumes and pedestrian activity levels. Urban design guidelines and planning policies for the centre seek to direct pedestrian traffic on to the streets to maintain pedestrians safety, increase the vitality of the shopping precinct and enhance the pedestrian experience. We consider it would be contrary to these outcomes to provide a pedestrian access that would direct pedestrians away from the very streets that such guidelines and policies are seeking to activate.

138 For these reasons, we can find no justification for retaining condition 1(t).

139 At the outset of the hearing there was considerable disparity in the views of the traffic witnesses representing the proponent (Mr Stephen Hunt) and the council (Mr Andrew O'Brien), and Vic Roads (represented by Mr Ian Aspinall).

140 Traffic in an important issue given the existing levels of congestion in Koornang Road, which are exacerbated by the level crossing in close proximity to the site, high traffic volumes along Dandenong Road and the additional level of traffic likely to be generated from the proposal. Traffic and access issues were the prime concerns of residents and Ms Rate painted a graphic picture of the difficulties faced on a daily basis by residents getting in and out of Arawatta Street. Arawatta Street is quite narrow and when cars are parked on both sides there is little opportunity for vehicles to pass. Considerable congestion already occurs in Arawatta Street from delivery vehicles associated with existing businesses. Objections from these businesses indicated the need to accommodate their needs as well as to cater for traffic from the proposed development.

141 As the hearing was spread over a number of days, the traffic experts had an opportunity to consult and on the final day they were able to present a consensus view of agreed outcomes. Whilst some disparity remained about how those outcomes were arrived at, we do not consider that it is necessary to explore them in any detail.

142 The main outcome has been agreement by the applicant to provide signalisation of the intersection of Arawatta Street with Koornang Road prior to commencement of use of the development. This would include widening the throat of Arawatta Street to formalise a designated left and right turn lane from Arawatta Street.

143 The applicant also agreed that road improvements would be constructed within Arawatta Street to provide a road narrowing and associated landscaping at the residential and commercial interface of Arawatta Street, immediately east of the subject site. The intention of these works is to provide separation between commercial and residential uses and discourage commercial vehicle activity at the residential end.

144 In addition, it was agreed that:

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The provision of 429 spaces was sufficient to meet the projected car parking demands for the revised scheme, even though general agreement on specific car parking rates was not achieved.

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The total traffic generation adopted by both consultants was in the right order of magnitude.

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The car parking layout is generally satisfactory, however Mr O'Brien recommended minor amendments. It was agreed that these are matters of design detail to be resolved later

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With minor amendments, satisfactory treatment of the service road access in Dandenong Road could be achieved.

145 Vic Roads is a referral authority in respect of access to Dandenong Road. By mistake, one of Vic Roads conditions requiring Vic Roads approval to detailed road works and engineering plans was omitted from the notice of decision. Parties have agreed that such a condition should be included and that the wording of the condition would allow the details to be worked out by negotiation and resolved separately.

146 During the course of the hearing, the Tribunal raised the issue of ownership of car parking spaces. As a mixed use development, peak parking demands of the respective uses will not coincide and consequently the actual peak parking demand of the proposed development will be significantly lower than the result obtained by simply aggregating individual peak demands. This premise underlies agreement by the traffic experts on the provision of 429 spaces. On this basis, it seems reasonable to ensure that all car parking spaces remain available for use at all times by anyone. It is not appropriate that certain car parking spaces be owned by individuals or tenancies so that they are unavailable for use by other persons when they might otherwise be unoccupied. There is no residential component in this development that would justify dedicated or individually owned car parking spaces being provided. The car park serves the development as a whole and therefore needs to remain open and be available to all uses on an ongoing basis. A specific condition should be included to this effect.

147 Condition 2(b) of the notice of decision proposes that development contributions be collected from the applicant to fund in part a road link between Arawatta Street and Woorayl Street, and other unspecified works. The genesis of a road link between Arawatta Street and Woorayl Street is found in the draft Carnegie UDF, which has been included as a policy in Amendment C46 to:

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Create a new north-south street linking Woorayl Street, Arawatta Street and Dandenong Road.

148 Such a road link and the traffic implications arising from it have never been exposed to public scrutiny or input from residents, traders or land owners who might be expected to pay for it or who will be affected by it. So far as the proposed use and development is concerned, there is no evidence that it is necessary to be provided as a result of the grant of this permit.

149 Simply by including the desire for such a link as planning policy in the planning scheme does not justify a permit condition requiring a developer to provide such a link or contribute to its cost. Apart from the lack of need, condition 2(b) is contrary to sections 62(5) and (6) of the Planning and Environment Act 1987. These provisions effectively provide that in the absence of an approved development contributions plan, the responsible authority may only include a condition that specified works, services or facilities be provided on or to the land or other land if they are necessary to be provided as a result of the grant of the permit and they will be provided or paid for wholly by the applicant; or provided or paid for partly by the applicant where the remaining cost is to be met by the council or other public authority. None of these circumstances apply in the present case. There is no development contributions plan. The link is proposed to be paid for by contributions from multiple owners and a section 173 agreement cannot be utilised by a council to bolster its position in a tested situation in relation to a condition not otherwise validly imposed under section 62(5) or (6).[13]

150 For these reasons, condition 2(b) is not a valid condition. It cannot be supported legally or on the merits of the proposed road link. We are satisfied that the signalisation of the intersection of Arawatta Street and Koornang Road, to be paid for or provided wholly by the applicant, together with the other traffic works agreed to by the applicant are all that are necessary to address the traffic implications associated with the grant of this permit.

151 The proposed conditions of the permit were discussed during and at the conclusion of the hearing, and the council and applicant were provided with an opportunity to make further written comment. The following summarises our conclusions regarding conditions. It needs to be read in conjunction with the table in paragraph 15. All condition numbers refer to the conditions in the notice of decision notwithstanding they may be renumbered in subsequent drafts produced by the council for the purpose of discussion at the hearing.

152 The applicant no longer opposes this condition. The council submitted that the words but any modified plan must only depict one supermarket should be added. These were opposed by the applicant. The amended plans show only one supermarket. There are no carparking or other implications if the area is used for more than one supermarket because the floor area restriction will apply. In any event, more than one supermarket is a most unlikely occurrence. We therefore see no need for inclusion of these words.

153 The amended plans have responded to this condition and the further changes proposed at the hearing further address these issues. For the reasons given, we consider that the changes as proposed represent an appropriate urban design outcome in terms of articulation, materials and fenestration. We agree with the applicant that condition 1(b) should be amended to read as follows:

Changes to the articulation and materials of the Dandenong Road elevation generally in accordance with the plan drawn by The Buchan Group and marked ATP400X dated 20 September 2005.

154 For the reasons given, we do not accept that there is a need to reduce the prominence, size and extent of advertising including the environment lifestyle graphics and logos. Condition 1(c) should be deleted.

155 This condition was not originally appealed against but given the improvements to the Koornang Road frontage as a result of the amended plans, which respond to this condition, we agree with the applicant that it is no longer required and should be deleted.

156 We agree with the parties that this condition should be deleted because there are no east facing windows.

157 The parties agreed that this condition should now read as follows:

Articulation or fenestration of the upper level of the Arawatta Street elevation.

158 We note that in the amended conditions circulated at the conclusion of the hearing, the council had omitted to delete the second part of this condition, which is included in italics in the table in paragraph 15. We are not persuaded that this paragraph remains relevant as a result of the changes in the amended plans or the rewording of this condition. We have therefore deleted the second paragraph of condition 1(g) (shown in italics in the table) because we consider that its continued inclusion is an error.

159 The parties agreed that this condition should be deleted and replaced by a condition which requires that a section 173 agreement be entered into to provide for the signalisation of the intersection of Arawatta Street and Koornang Road. Different versions of the wording of the condition were put forward with the applicant submitting that the condition should contemplate the possibility that the permit holder itself will carry out the signalisation works, rather than pay the council the costs of the works. We agree that flexibility should be provided for in the agreement. It is clear that as the council is the road authority for the intersection, the works could not be carried out except with its consent but we see no reason why the applicant could not undertake construction rather than the council with such construction to the council's satisfaction. We therefore propose that condition 2 should be replaced by the following:

Prior to the commencement of the development, the owner of the land at 2-18 Koornang Road, Carnegie must enter into an Agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the responsible Authority pursuant to which either:

(a) The land owner agrees to pay to Council the cost of signalising the intersection of Arawatta Street and Koornang Road.

(b) The land owner agrees to construct and carry out all works necessary to signalise the intersection of Arawatta Street and Koornang Road to the satisfaction of the responsible authority.

The Agreement must define the timing and conditions of payment, or construction of works as the case may be, subject to ensuring that such payment or construction of works must be made prior to the commencement of the use of the land.

A memorandum of Agreement is to be entered on Title to the land and the costs of the preparation and execution of the Agreement and entry of the memorandum on title are to be paid by the owner.

160 The parties agree that the preamble to condition 3 should read as follows:

Prior to the commencement of any works an Integrated Traffic, Car Parking and Pedestrian Management Plan for the site and its integration with the surrounding area must be prepared by the applicant and approved by the Responsible Authority and must include a response to the following:

161 These conditions were not originally appealed against but require modification as a result of the agreements reached between the parties regarding traffic management. We support the rewording of condition 3(l) to read as follows:

The signalisation of the intersection of Arawatta Street and Koornang Road, and how that signalisation will be integrated with the operation of the Dandenong railway boom gates and the intersection of Koornang Road and Dandenong Road;

162 In paragraph 3(o) we support the substitution of swept path diagrams for 12.5 metre long heavy rigid vehicles rather than swept path diagrams for 19 metre long semi-trailers.

163 This condition relates to provision of a pedestrian accessway between Dandenong Road and Arawatta Street. For the reasons previously given we do not support this condition and it should be deleted.

164 The applicant now no longer opposes this condition and it should remain.

165 Condition 8 was a Vic Roads referral authority condition but important aspects of the condition were omitted from the notice of decision. The parties, including Vic Roads, have agreed that a new condition 8 should be included as follows and that the subsequent conditions should be renumbered:

Prior to the commencement of any use or works authorised by this permit, the applicant must arrange for detailed engineering plans of proposed access arrangements and associated road works on Dandenong Road (Princes Highway) to be prepared to the satisfaction of Vic Roads in consultation with the Responsible Authority.

166 This condition required that signs must not contain any flashing, intermittent or changing colour light. The applicant opposed the condition on the basis that the proposed promotional signage forming part of the façade is proposed to contain changing lighting. If the condition is to be retained, rather than deleted, the applicant submitted that it should simply prohibit any flashing light.

167 We agree that there should be no flashing signs, but intermittent light and changing colour light are common features of the type of contemporary signage proposed for the development. As noted earlier, we accept the applicant's evidence that the signage has been designed to integrate with and form part of the façade. We agree that at this type of gateway location with main road frontages and for this type of development, signage is an important aspect of the urban design statement that the building will make. On this basis, we see no need to preclude intermittent or changing colour light or require that separate specific permission for this be obtained. Condition 21 should therefore read as follows:

168 This condition provides that the permit will expire if the advertising sign is not displayed within 2 years of the date of the permit. Although not originally appealed against, it was submitted by the applicant that this creates a potential inconsistency with condition 16 which provides that the development and use must commence within 2 years from the date of the permit and be completed within 4 years of the date of the permit. Accordingly, it submitted that condition 22 should be deleted. The council acknowledged the inconsistency and agreed to delete condition 22 provided condition 16 was amended to provide that the permit will expire if the development is not completed and advertising signs are not displayed within 4 years of the date of the permit.

169 However, neither party seems to have detected an inherent contradiction in the way that condition 16 is worded. It provides that the permit will expire if the development and uses do not start in two years from the date of the permit or the development is not completed within four (4) years of the date of the permit. It seems unreasonable to provide that the permit will expire if the uses are not commenced within two (2) years when the development may not be completed by this time. Accordingly, we consider that condition 22 should be deleted and condition 16 should provide as follows:

•

The development does not start within 2 years from the date of this permit; or

•

The development is not completed, the use is not started or the advertising signs are not displayed within 4 years of the date of this permit..

The Responsible Authority may extend the time referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

170 The parties agreed that condition 24 should be reworded and that condition 25 should be deleted because it unnecessarily duplicates condition 24. Accordingly, condition 25 should be deleted and condition 24 should provide as follows:

(a) Subject to condition 24(b), the loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land.

(b) Loading and unloading of private cars, couriers and vans can occur off site if parked in a lawful manner to the satisfaction of the responsible authority or as specified in the Plan prepared under condition 3.

171 No condition was included in the notice of decision regarding noise attenuation and litigation measures. The parties have agreed that such a condition should be included in the permit based on the report prepared by Mr David Dolly of Acoustic Consultants Australia Pty Ltd dated 15 September 2005. We have included the agreed condition in our order.

172 We note that the notice of decision did not include a condition requiring the preparation and endorsement of landscape plans. A landscaping strip will be provided along the eastern boundary of the site and in front of the loading bay on the Arawatta Street frontage. We consider that the following additional condition should be included:

(a) Before the development starts, a landscape plan 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 be drawn to scale with dimensions and three copies must be provided.

(b) Before the use/occupation of the development starts, or by such later date as it approved by the responsible authority in writing, the landscaping works shown in the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

(c) The landscaping shown on the endorsed plans must maintained to the satisfaction of the responsible authority.

173 For the reasons previously discussed (see paragraph 146) we propose to include the following condition:

All car parking spaces must remain available for general use by members of the public at all times.

[1] This witness, Mr Mike Scott of Planisphere Pty Ltd, was the author of the draft Carnegie UDF upon which the new policies introduced by Amendment C46 to the Glen Eira Planning Scheme were based.

[2] Amendment C46 as it relates to the subject land has a sunset clause of 30 September 2007. A further amendment incorporating the substantive changes introduced by Amendment C46 was proposed to be exhibited. Submissions will be considered by an independent planning panel, which will make recommendations to the planning authority before a decision is made on the final form of the amendment.

[3] Except with respect to certain improvements to respond to design and traffic issues raised by witnesses.

[4] Design Vision for Carnegie: consultant report issued for public comment (2004), page 9

[5] Design Vision for Carnegie: consultant report issued for public comment (2004), page 9

[6] Design Vision for Carnegie: consultant report issued for public comment (2004), page

[7] There was one recommendation not endorsed by the council but this is not to do with the Carnegie Centre.

[9] [1979] HCA 20; (1979) 140 CLR 675 at 687

[10] Panel Report Amendment C36 to the Greater Bendigo Planning Scheme and Planning Permit Application No DC/269/02 (January 2003) page 62

[11] [2005] VCAT 2211. It should be noted that this case is currently on appeal to the Supreme Court.

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

[13] See Naprelac v Baw Baw Shire Council [2005] VCAT 956: Perfect Builders Pty Ltd v Greater Geelong City Council [2005] VCAT 1795; Springhaven Property Group Pty Ltd v Whittlesea City Council [2005] VCAT 815