2. The Responsible Authority, not later than 29 October 2001 file with the Tribunal and provide to the Applicants for Review/Permit Applicants and VicRoads draft conditions addressing the revised plans.

3. This matter is set down for further hearing at 10.00am on Wednesday 7 November 2001 at 55 King Street Melbourne.

4. Any party which considers that any of the dates set out above are inappropriate must advise the Tribunal accordingly, with copies of such advice to other parties, not later than 10 October 2001.

For the Responsible Authority: Mr. N. Modica, Town Planner

For VicRoads, a Referral Authority: Mr. A. Gundry, Planning Officer

For the Applicant For Review/ Mr. M. Bartley, Solicitor of Phillip

Mr. C. Dance, Consultant Landscape Architect and Urban Designer, of Chris Dance Lands Design Pty Ltd.

Mr. D. Hansen, Consultant Planner of Ratio Consultants Pty Ltd.

Mr. R. Symons, Consultant Traffic Engineer of Ratio Consultants Pty Ltd.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Frankston City Council ("the Responsible Authority") to refuse to grant a permit.

2. The Permit Application and the Application for Review were amended pursuant to Clause 64(2) of schedule 1 and Section 127(1) of the Victorian Civil and Administrative Tribunal Act 1998 respectively, by substituting the names "M and I Hendriksen" as the name of the Applicant in each Application.

3. It was a requirement of Clause 52.29, Land Adjacent to a Road Zone, Category 1, or a Public Acquisition Overlay for a Category 1 Road, that this Application be referred to VicRoads. The referral was not made. I joined VicRoads as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.

4. The Permit Application was amended by amending the description of the proposal to "Highway Service Centre".

5. I made Directions at the end of Day 1 requiring submission of a revised site plan and elevation. There being no objection I amended the Permit Application on Day 2, to include those plans, pursuant to Clause 64(2) of Schedule 1.

6. Mr. Hansen, a Consultant Planner who was called as an expert witness for the Applicant for Review/Permit Applicant, said in his written report:

It is proposed that the subject land be used and developed for a Highway convenience or service centre, which would play a role similar to a rural Freeway service centre, but without the road access and hinterland access constraints placed on the latter type of facility.

The proposed facility for the land has been designed in a manner, which addresses the rural highway and landscape context and will function as a unique rural landmark as well as a service centre for highway travellers of all categories. The proposal comprises:-

· Service Station with separate car and truck filling facilities;

· Convenience restaurant with external eating area and drive-through facility;

· Country trade supplies offering for sate rural supplies, fresh produce and. craft materials;

· Access to both Dandenong-Hastings and Hall Roads;

· Extensive landscaping of indigenous species, including car park shade and buffer plantings, wetlands and wildlife areas and silo/windmill sign features, and

The subject land is known as No. 510 Hall Road, Skye and is located at the southwest corner of Hall Road and Dandenong-Hastings Road (Westernport Highway), approximately four kilometres to the west of Cranbourne, four kilometres to the east of Carrum Downs, 14 kilometres south of Dandenong and 22 kilometres to the north of Hastings.

The subject land is 'L' shaped, has a frontage of approximately 125 metres to Hall Road, 220 metres to Dandenong-Hastings Road and an area of approximately three hectares. The subject land forms part of a larger holding with an area of about 22 hectares, which abuts on the western and southern boundaries.

8. Mr. Symons, a Consultant Traffic Engineer who is called as an expert witness for the Applicant for Review/Permit Applicant, said in his written report:

The subject site and the balance of its adjoining allotment are used for agricultural/hobby farm activities. Immediately to the south is an engineering business. The area is generally used for hobby farm/rural residential activity. The notable exceptions, further north on Western Port Highway, are the KCC Dog Centre and several wholesale flower or plant nurseries. To the south is a plant nursery and to the west a commercial seed farm.

The subject land, adjoining land to the west and south and opposite land to the north of Hall Road is within a Rural Zone and subject to a 40 hectare subdivision minimum. Both Hall Road and Dandenong-Hastings Road are within a Road Zone, Category 1.

Land to the east of Dandenong-Hastings Road is in the City of Casey and is within the Rural 6 Zone under the Casey Planning Scheme and subject to a 40 hectare subdivision minimum. Land to the north and south of Hall Road is designated as future urban under the Casey Municipal Strategic Statement.

Within the Rural Zone, uses such as Service station, Convenience shop, Equestrian supplies, Retail Premises (Trade supplies and Food and drink premises) and Freeway service centre are specified Section 2 discretionary uses and a "Highway Convenience/Service Centre" is an unspecified Section 2 use.

A strip of land on the southern side of Hall Road is covered by Schedule 2 to the Public Acquisition Overlay (Road widening), but this does not affect the proposal. The balance of the subject land, adjoining land to the west and south and opposite land in the City of Casey are not covered by any Overlays. Land to the north of Hall Road is affected by Schedule 2 to the Significant Landscape Overlay (Stands of Red Gums in Carrum Downs Area).

10. Mr. Modica, in his written submission for the Responsible Authority, and Mr. Hansen both made reference to relevant State and Local Planning Policy, including the Municipal Strategic Statement.

1. The proposal is contrary to Council's expressed planning strategies for rural areas, in particular the rural areas section of the MSS and Local Planning Policies on the South East Non Urban Areas, and Commercial Uses on Rural Main Roads.

2. The proposed development is contrary to the primary purpose for which the land is zoned.

3. The proposal would create an undesirable precedent leading to the establishment of further such cases.

4. The proposal is unsuitably located having regard to traffic considerations and would generate traffic hazards.

5. The proposed development would prejudice the proper future planning of the area.

1. Each and every ground of refusal is contested.

2. The Responsible Authority has failed to take into account all of the factors which make it desirable to grant a permit.

3. The proposal is consistent with relevant planning strategies and policies and is supported by a need for the proposed facility.

4. The proposal is consistent with the purpose and decision guidelines of the Rural Zone in the context of the location, land use and future planning.

5. The proposal will not create a precedent as there is a need for only one such use and development on the north bound side of the highway.

6. The proposal will create an attractive and high quality facility, which will set an appropriate standard for a rural highway commercial facility.

7. The proposal will not create traffic hazards, is not opposed by VicRoads and can meet all VicRoads access and sight line requirements.

8. The proposal will promote the proper future planning of the area by designating a suitably located and configured site for an appropriate and needed highway convenience centre node.

"Council considers that the strategic planning that has been carried out in this locality over a long period of time in the form of various Outline Development Plans, now encapsulated in the-Municipal Strategic Statement, clearly demonstrates that the proposed petrol station, convenience shop, restaurant, "country trade supplies" shop/retail premises plus associated advertising signage are inappropriately located.

Council's refusal is based upon its concern with the proposal's lack of adherence to or regard for the strategic directions outlined for this type of development on main roads in rural areas. Included at Attachment "E" are relevant sections of the Frankston Planning Scheme for Rural Areas (Clause 21.09), Transport (Clause 21.12) and Commercial Uses and Main Roads Policy (Clause 22.04).

The site and surrounding land are included in a Rural zone. , It is considered that the location of the proposed use and development is inappropriate given the primary purpose for which the land is zoned and Council's strategic objectives encapsulated in the Municipal Strategic Statement and local policies. If this development were to proceed it would lead to further fragmentations of rural land and thereafter the sustainability of agricultural activities.

Local planning policy discourages service stations and other urban commercial uses located along rural sections of main roads. One of the objectives of the Commercial Uses and Rural Main Roads Policy at Clause 22.04 of the Scheme is to discourage the establishment of urban related commercial uses more appropriately located in urban areas. The proposal is. clearly inconsistent with this objective.

Furthermore, the proposal is inconsistent with the objectives of the South East Non Urban Area (SENUA) Policy Statement. This policy provides a regional framework for the management of land use and development in the non-urban area. In conjunction with the Policy, Council has entered into a Memorandum of Understanding with the Department of Infrastructure, City of Kingston, City of Greater Dandenong and City of Casey to pursue and apply the SENUA Policy Statement.

The Policy Statement includes a set of key performance objectives, which includes the following:

· To protect quality agricultural land, and encouraging sustainable farm management practices.

· To manage the edge of urban areas in a manner which ensures that the non- urban area is both stable and enduring.

· To protect and further develop the scenic and landscape values of the non-urban area.

The proposal does not meet any of the above objectives. Endorsement of the use may set a precedent for the proliferation of further commercial uses along rural sections of main roads. This is clearly inconsistent with the valued rural character of the area and would have implications for traffic flow.

It is considered that the proposed use and development at this location is inconsistent with the long-term planning objectives and strategies for the protection and enhancement of the City's rural land.

In particular, the proposal is contrary to the Rural Areas objective of Council's Municipal Strategic Statement (MSS) and Local Planning Policies relating to the South East Non-Urban Area Policy, and Commercial Uses and Rural Main Roads Policy which form an integral part of the new format Frankston Planning Scheme."

14. Mr. Gundry, in his written submission for VicRoads, said:

"Although the development is located at the intersection, Western Port Highway carries a high volume of high speed traffic, in an area containing very few points of direct access to abutting properties most of which are rural in nature. In order to maintain safety for north bound traffic, and reduce the potential for 'rear end' type accidents as vehicles slow down in advance of the intersection to enter the proposed development, a deceleration lane and taper should be provided at this ingress.

The proposed egress to Western Port Highway is considered unacceptable as shown on these plans. VicRoads does not permit the use of acceleration lanes, or merge lanes other than at freeway entry and exit ramps. The angle of the egress is also unacceptable as motorists are required to look over their shoulder in order to see oncoming traffic. A high entry angle egress should be provided that discourages wrong way movements into Western Port Highway, but permits good visibility of oncoming traffic. Separate ingress and egress is acceptable provided the egress is sufficiently removed from the intersection to avoid additional conflict.

Although Hall Road is under the care and management of the Frankston City Council, VicRoads must ensure that traffic using this access does not have an adverse effect on the operation of the intersection. In order to reduce the risk of 'rear end' due to vehicles entering the development in the area where westbound traffic is accelerating as it departs the roundabout, a taper should be provided at this access.

East bound traffic turning right from Hall Road into the proposed development will cause delays and create a hazard to traffic approaching the roundabout. Any treatment required to be carried out at this location should be to the requirement of the Frankston City Council.

VicRoads has no objections to the proposed development provided precautions are taken to ensure that there are no detrimental effects on the level of service, safety and amenity of the existing road network.

Considering that every access point is a potential point of conflict, it is essential that the proposed development does not create any additional safety hazards. To that end, VicRoads would have no objection to the granting of a Planning Permit for the development and use of the subject property if the following conditions were included in the permit:

15. Mr. Gundry went on to set out conditions that VicRoads would require in any permit.

16. Mr. Bartley, for the Applicant for Review/Permit Applicant, said that all of the conditions requested by VicRoads were acceptable to the Applicant for Review/Permit Applicant, and not were contested.

17. Clause 21.09, Rural Areas, includes by way of overview at Clause 21.09-1:

A combination of very broad land use discretion in the rural zones and Frankston City's location on the rural fringe means that there is likely to be pressure to establish urban commercial uses along rural sections of main roads. That pressure needs to be addressed in an appropriate manner.

18. One of the key issues identified at Clause 21.09-2 is:

19. Clause 21.09-3, Objectives, Strategies and Implementation, sets out an objective of:

· To maintain rural landscapes and predominantly rural uses in the City's rural areas:

· Encourage urban related uses to locate in nearby urban zones.

21. The policy provides that Strategies will be implemented by a number of initiatives including:

· Using local policy to encourage urban commercial uses that do not need to locate in rural areas to locate in urban zones. (Commercial uses and rural main roads policy, Clause 22.04).

22. Mr. Modica also addressed Clause 21.12, Transport, a key issue identified at Clause 21.12-2 is:

· The need for an arterial road network to meet the requirements of both the Frankston community and the broader community in terms of road that perform a regional role.

23. One of the Objectives set out at Clause 21.12-3 is:

· To provide a safe and efficient transport network.

24. One of the initiatives identified for Implementation of Strategy is:

· Using local policy to maintain appropriate standards of safety and efficiency along rural sections of main roads by encouraging urban commercial uses, other than those that require a large land area and are suited to a rural location, to locate in urban zones. (Commercial uses and rural main roads policy. Clause 22.04).

25. Mr. Modica addressed Clause 22.04, Commercial Uses and Rural Main Roads Policy. Clause 22.04-1 sets out the policy basis, as:

Rural main roads are a significant community asset. A major role of these roads is to cater for the efficient movement of high volumes of traffic at high speed. They are also important visual corridors and provide a rural outlook for road users.

The MSS recognises that there will be pressure to establish urban commercial uses along rural main roads and identifies the need for a policy to deal with these pressures. An objective of the MSS is to maintain rural landscapes and predominantly rural uses in the

26. Objectives are set out at Clause 22.04-2 and are:

· To maintain high levels of road efficiency and safety.

· To acknowledge the importance of Westernport Highway as a major commercial route.

· To maintain the rural character of land adjoining rural main roads and the rural outlook from these roads.

· To encourage the maintenance of rural activities.

· To discourage the establishment of urban related commercial uses more appropriately located in urban areas.

· Urban related commercial uses, including service stations, restaurants, convenience shops and other retail premises, be encouraged to locate in urban zones (except for the Low Density Residential Zone fronting Westernport Highway).

· New access to properties fronting Westernport Highway and Frankston Dandenong Road be provided from an alternative road wherever practicable.

28. Mr. Bartley, in his written submission for the Applicants for Review/Permit Applicants, also addressed policy aspects of the proposal. Mr. Bartley said:

"The Council's policy framework (discussed further below), in relation to the rural areas, aims to discourage the encroachment of urban uses. It should be readily apparent that a `Highway Service Centre' of the kind proposed is directed at the provision of services for highway travellers of which there are some 23,000 on a daily basis. Such a facility is clearly dependent on, and relates to, the highway not to the surrounding community or other urban areas.

Consideration of the purpose as a 'convenience centre' misconstrues the purpose as one normally associated with a convenience shop - providing services to the surrounding community - generally a purpose of a particularly urban character.

What is proposed here is consistent with proposals approved elsewhere by this Tribunal and constructed along many rural highways in locations in which urban types of uses would not be sought to be encouraged. In particular reference is made to a decision of the Tribunal in relation to a proposed facility on Moorooduc Road Mornington within a policy context very similar to that applying here where a permit was granted following an extensive and careful examination of these matters. This decision is discussed further below.

29. Application for Review No. 1999/98921, Advocate Securities Pty Ltd v Mornington Peninsula Shire Council, was an Application for Review of a decision of the Responsible Authority to refuse to grant a permit for a service station, convenience store, takeaway food store, advertising signs and associated removal and replacement of trees at Lot 9 Moorooduc Highway, Moorooduc. The subject land was on the west side of Moorooduc Highway and abutted the north bound carriageway. I allowed the Application for Review and directed that a permit be granted. In my Reasons I said:

"I have considered all the submissions and evidence, and have had regard to the relevant planning provisions, and have come to the following conclusions:

(a) The proposal would not be inconsistent with strategy or policy,

(b) A significant limitation in the current level of such service for traffic on the north bound carriageway in this vicinity has been demonstrated,

(c) The proposal would not be detrimental to the character of the area. would not be an unsatisfactory intrusion into the landscape, nor be contrary to the Environmental objective to be achieved in the Moorooduc Plain and Balcombe Valley.

(d) The proposal would not be contrary to proper and orderly planning of the area.

(e) The proposal would not adversely affect the amenity now enjoyed in the area to the extent that a permit should not be granted.

I have therefore come to the conclusion that a permit subject to

30. I consider that the above quotation, as far as it is relevant, applies to the subject proposal with the exception of the "Country Trade Supplies" component. The latter component is discussed further below.

31. I consider that this proposal is consistent with policy. There is a limitation of service for traffic on the north bound carriageway and the proposal would address that limitation. The proposal acknowledges the importance of Westernport Highway, it can respect the landscape of the area, and it would clearly service highway traffic on the north bound carriageway.

32. Mr. Bartley made reference to Application for Review No. 2000/095273 J & J Sherer v Casey City Council, which was an Application for Review of the decision of the Responsible Authority to refuse to grant a permit for a service station and convenience store at 730 Robertsons Road. Pearcedale. The subject land was on the south-east corner of Robinsons Road and Westernport Highway and was proposed to serve the south bound carriageway. Ms. Monk disallowed the Application for Review and directed that a permit not be granted. Ms. Monk said in her Reasons:

"It was Mr Custance's submission that there is an absence of service stations in the region of Pearcedale and that whilst approval has been granted for sites at the northern end of the highway, there are none in the south. He drew attention also to another application for a service station at the Baxter-Tooradin Road intersection of the highway - suggesting that this was a further indication of a need for such facilities.

This latter application is also the subject of an upcoming review to this Tribunal.

Mr Robertson confirmed that there are in fact a number of service stations in the region - on Eramosa Road at Somerville and on the Baxter Road at both Pearcedale and Baxter and that these roads service a significant number of vehicles using the Westernport Highway with a destination on the Peninsula. He submitted that these, together with the already approved centres to the north and Hastings to the south demonstrated that the function of servicing was adequately catered for elsewhere. Mr Robertson argued that there was no overwhelming need for a further facility - certainly not one that would justify the otherwise negative impact of siting such a facility on this land. In this regard he referred in particular to the likely visual impacts, the loss of roadside vegetation to provide a left turn lane and the acknowledged need for the land to be filled at its southern end which would make it even more visually prominent in the landscape. I accept Mr Robertson's submission."

33. Whilst there may be approved service centres to serve the south bound carriageway, I was not advised of any proposals to serve the north bound carriageway. I have already said that this proposal could be developed to respect the landscape of the area.

34. I consider that the subject proposal, but not including the "Country Trade Supplies" component, is satisfactory policy having regard to policy, including policy referred in paragraphs 17 to 27 inclusive.

35. Mr. Dance in his written report, said that the "Country Trade Supplies" component would include the following:

· Rural supply including hay, grain, farmware, tools, clothes, etc(approx 400m2).

36. I do not consider that this component would support the use of the Moorooduc Highway. It is a commercial activity and it would be more appropriate in an urban area that supports local primary production, if that is its purpose. Mr. Modica, in cross-examination, asked Mr. Dance if he could say that this component would help agricultural viability. Mr. Dance said that such support would be symbolic.

37. I consider that traffic concerns have been adequately addressed by the conditions suggested by VicRoads, and which have been accepted by the Applicants for Review/Permit Applicants. I also consider that the proposal, less the "Country Trade Supplies", would not prejudice future planning of the area, but would support the use of the Moorooduc Highway.

38. I have come to the conclusion that a permit should be granted for the proposal, less the "Country Trade Supplies" component. I consider it appropriate that the Applicants for Review/Permit Applicants have revised plans prepared to take account of the deletion of the "Country Trade Supplies" component. All parties would then have the opportunity to make submissions on such revised plans. This would be more appropriate than including a condition requiring revised plans to the satisfaction of the Responsible Authority.

39. I will direct that the Applicants for Review/Permit Applicants file with the Tribunal, and provide to the Responsible Authority and VicRoads, revised plans which address this conclusion. Those revised plans should address relevant conditions which have been suggested by the Responsible Authority and VicRoads, and also show relevant levels to Australian Height Datum, be fully dimensioned, show proposed landscaping, and clearly indicate the land required for the proposal. I will also direct that the Responsible Authority prepare revised draft conditions having regard to the further revised plans. I will set the matter down for a three hour hearing to consider the revised plans and draft conditions.

40. I will also direct that any party who considers that the time lines set out in the Directions are inappropriate advise the Tribunal accordingly.

41. Mr. Gundry represented VicRoads on Day 1 but was excused from appearance on Day 2. The representation of VicRoads provided an opportunity for its requested conditions to be explained, and was of significant benefit to the Tribunal, the Responsible Authority and the Applicants for Review/Permit Applicants.