Glenwaye PL v Glen Eira CC

Glenwaye PL v Glen Eira CC - [2006] VCAT 300 - VCAT 2006 case summary — Zoe

[53]

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:

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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.

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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.

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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.

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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:

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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:

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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.

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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).

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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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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.

At a glance

Court

Decision date

Before

Source

Judgment (265 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Glenwaye PL v Glen Eira CC (Red Dot) [2006] VCAT 300 (2 March 2006)