A. A Permit is granted and directed to be issued by the Responsible Authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 510 Hall Street, Skye which allows use and development for the purpose of a Service Station with separate car and truck canopies and filling facilities, a 240m2 Convenience Shop and a 100-seat Convenience Restaurant with external eating area and a drive through facility, a crossover width wider than 7.7 metres pursuant to Clause 52.12 and access to a road zone pursuant to Clause 52.29 of the Frankston Planning Scheme in accordance with endorsed plans and subject to conditions. The Tribunal directs that the permit must contain the following conditions:

1. The following essential services and facilities must be provided and available at all times:

(b) Undercover fuel sales area for petrol, diesel and LPG.

(c) An area of not more than 240 square metres for the sale of food, drinks and other convenience goods.

2. The following services and facilities must not be provided:

(a) Mechanical repairs (other than the emergency repair of vehicles).

(b) Retail facilities of more than 240 square metres.

(g) Entertainment facilities, amusement machines or gaming machines.

(h) The sale, distribution or consumption of alcohol.

(j) Overnight accommodation (other than for a caretaker or site manager).

3. Before any buildings and works commence on the site, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the BFC Services Pty Ltd Drawing Nos. SKYECP001 Revision 3, 002 Revision 3, 008 Revision 3, 009 Revision 4, and 010 Revision 2, but modified to show:

(a) The areas (in square metres) of internal leasable areas of uses within the buildings to be indicated.

(b) A plan indicating the relationship of the development site with the parent title, including bearings and dimensions of the boundaries of the parent title and bearings and dimensions of the boundaries of the development site.

(d) Details of location and type of outdoor lighting proposed for the development and use.

(e) Provision of disabled car parking spaces for the development to the satisfaction of the Responsible Authority.

(f) Site and finished floor levels for all buildings and works, to the requirements of Melbourne Water and the Responsible Authority.

(g) Access in accordance with the requirements of VicRoads.

(h) Materials and colours of paved areas within the development.

(i) Location of service facilities for the use and development, including drainage works, sewerage treatment plant and water supply.

(j) A Landscape Buffer with a minimum width of 20m along the Dandenong Hastings Road (Westernport Highway) frontage, with minimum one metre mounding.

(l) Matters required by Conditions 27 to 29 inclusive as appropriate.

4. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

(a) Detailed design plans of the internal stormwater drainage system must be submitted for approval to the satisfaction of the Responsible Authority, and must include:

(ii) the method and location of on-site stormwater treatment areas to ensure quality and quantity of discharge; and

(iii) measures to manage pollution abatement at this facility.

(b) Detailed plans of the proposed restaurant and convenience store must be submitted to and approved by the Frankston City Council Health Department.

(c) A landscape plan, prepared by a suitably qualified and experienced person or firm and 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. The plan must show:

(i) areas set aside for landscaping, including any landscaping on landscape reserves, with landscape setbacks as required in Condition 1(j);

(ii) a schedule of all proposed trees, shrubs and ground cover, including the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn, paving or other surface material as specified;

(iii) use of native indigenous plants of local provenance that will supplement existing landscaping in the locality and contribute to the precinct character;

(iv) existing vegetation to be removed and to be retained;

(v) an irrigation system to enable convenient and satisfactory maintenance of all planted areas.

(d) A Site Management Plan must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale and three copies must be provided. The plan must include:

(i) a proposed timeline and sequence of construction;

(ii) location of worker site accommodation and facilities;

(iii) location of materials to be stored on site during construction and delivery;

(vii) the location of bunding for the purpose of preventing any spillage from the site entering the receiving environment of the Eastern Contour Drain;

(viii) the location of underground storage areas;

(ix) drainage design measures to manage pollution abatement at this facility;

(x) To ensure maintenance of rural flows, provision of a rainwater retention system, such as a rainwater tank, to collect roof waters with an overflow connected to either pondage or on-site disposal area approved by the Responsible Authority. The system must not be cross-connected to any retail water supply provided to the development.

6. Prior to the commencement of the use hereby permitted, the landscaping works as described and shown on the endorsed plans must be provided and completed, and must thereafter be maintained in good working condition in accordance with the endorsed plans, all to the satisfaction of the Responsible Authority.

7. Access to the subject land and construction of the approved development must at all times be managed to the satisfaction of the Responsible Authority to ensure that minimal interruption is caused to the efficient operation of Dandenong-Hastings Road (Westernport Highway) and Hall Road.

8. A settlement and oil separation system must be installed in order to treat water drained from the sealed surfaces on the site into the drainage system. The system must comply with the Environment Protection Act 1970 and be to the satisfaction of the Responsible Authority and the Environment Protection Authority.

9. Disposal of rubbish and location of rubbish receptacles must be to the satisfaction of the Responsible Authority.

10. The proposed works and any future development must comply with the relevant requirements of the Dangerous Goods Act and its subordinate legislation, particularly the Dangerous Goods (Storage and Handling) Regulations 1989.

11. Prior to commissioning of any liquefied petroleum gas (LP Gas) tank, the permit holder must submit full information detailing compliance with AS 1596-1989, LP Gas - Storage and Handling, to the Victorian Workcover Authority.

12. Storage of any LP Gas and its associated facilities must be installed, kept and operated in compliance with AS 1596-1989, LP Gas Storage and Handling and AS 1596 Supplement 1 - 1994 LP Gas - Storage and Handling Siting of LP Gas Automotive Retail Outlets.

13. Advertising signs must not be located on any road reserve. This includes any sign attached to a vehicle where it is being used as an advertising sign.

14. Any reasonable costs associated with the erection of traffic signs or works on the road reservations required as a result of complying with the requirements of this permit must be met by the operator of this permit.

15. The uses approved under this permit may operate 24 hours per day, 7 days a week.

16. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

17. During construction of the development hereby approved, trees and other vegetation to be retained must be protected from damage as follows:

(a) Adequate protection of all native vegetation by installing temporary fencing or barrier tape prior to commencement of works.

(b) Construction equipment, eg trucks, must not be parked beneath the canopy of any trees, or elsewhere on the subject land, so as to result in compaction of the soil around tree roots or to result in any physical damage to the vegetation.

(c) Underground services must not be located below the drip line of any tree so as to result in damage to tree roots.

(d) The natural ground surface level within the drip line of any tree must not be varied.

18. The development must be drained to the legal point of discharge nominated by, and to the satisfaction of, the Responsible Authority.

19. Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards. Precautions are to include:

(a) Appropriate signage to AS 1743 Road Works Signing Code of Practice.

(b) The provision of adequate barricading of works, including trenches of Service Authorities and any other road openings sufficient to ensure public safety.

All relevant permits must be obtained from Council for works within the existing road reserves, in addition to this planning permit.

20. To the satisfaction of the Responsible Authority, the amenity of the area must not be detrimentally affected by the use or development, through the:

(a) Transport of materials, goods or commodities to or from the land.

(b) Appearance of any building, works or materials.

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

21. Before any of the uses start, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

(b) Properly formed to such levels that they can be used in accordance with the plans.

(e) Linemarked to indicate each car space and all access lanes.

These areas must be maintained to the satisfaction of the Responsible Authority, and must be kept available for these purposes at all times.

22. In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.

23. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining or nearby land.

24. Concrete kerbs or other barriers must be provided to the satisfaction of the Responsible Authority to prevent direct vehicle access to an adjoining road other than by a vehicle crossing.

25. Vehicles under the control of the operator of the use or the staff of the operator must not be parked on the nearby roads.

26. The filling of underground tanks, the fuelling and service of vehicles, the loading and unloading of goods and the standing of vehicles whilst awaiting service or collection must be carried out entirely within the site.

27. The following requirements must be met, to the satisfaction of the Responsible Authority and VicRoads:

(a) Adequate signs, pavement markings and traffic islands must be provided to direct and control the flow of traffic within the site, including the clear definition of permitted entry and exit movements.

(b) A sealed vehicle access between the property boundary and the existing road pavement must be constructed at each vehicle access location.

(c) The egress to Westernport Highway must be located at least 100 metres from the roundabout.

(d) The egress must be designed with a high entry angle of 70 degrees to Westernport Highway to reduce the risk of wrong way movements and provide good sight lines to oncoming traffic.

(e) A deceleration lane 3.5 metres wide and 162 metres long including a 50 metre long taper, plus a 1.0 metre wide shoulder, must be constructed at the Dandenong-Hastings Road ingress.

(f) Culverts beneath all accesses must be designed to incorporate driveable endwalls in accordance with VicRoads Drawing No. SD 1991.

(g) Detailed engineering plans of the roadworks must be submitted for approval to VicRoads. When the plans are approved, an additional copy shall be submitted for supervision purposes.

(h) Prior to gaining approval from VicRoads to undertake works on Westernport Highway the developer must:

(i) provide payment to VicRoads of $500 or 1% of the estimated cost of roadworks, whichever is greater, to cover the cost of surveillance;

(ii) provide a bank guarantee, without a termination date, to VicRoads for the estimated cost of works;

(iii) provide evidence that the Contractor has a public liability insurance policy for at least $10 million that will be effective for the duration of the works;

(iv) provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor;

(v) submit to VicRoads for approval a Traffic Management Plan, which must show the proposed provision for traffic and signing for the duration of the works. The Traffic Management Plan must meet the requirements of the VicRoads Worksite Traffic Management (Roadworks Signing) Code of Practice which incorporates AS 1742.3 - 1996. Traffic management/control must be carried out by suitably trained personnel;

(vi) arrange for the contractor to contact the VicRoads Surveillance Co-ordinator, on telephone number 9881 8077, three working days prior to the commencement of works.

(i) A left turn deceleration taper 3.0 metres wide and 30 metres long must be constructed at the access to Hall Road.

(j) Hall Road must be widened and a right turn treatment constructed at the proposed access.

28. Vehicle crossings must be constructed to Frankston City Council Standards and specifications, to the satisfaction of the Responsible Authority.

29. The development must be sewered to the satisfaction of the Responsible Authority.

30. The development must be operated to the satisfaction of the Responsible Authority so that it does not cause noise or other nuisance to nearby residents and complies with noise limits prescribed in the State Environment Protection Policy (SEPP) N-1 when measured at residential premises.

31. All paved areas must be sloped towards a collection tank or pit, outdoor paved areas must be serviced by a first flush stormwater diversion system, and wastewater collected from such areas must be pumped out and disposed of on a regular basis as described in EPA publication 462 `Waste Water Control at Motor Vehicle Repair and Service Premises - Best Practice Environmental Management' to minimise the risk of such wastewater entering the stormwater system, all to the satisfaction of the Responsible Authority.

32. The water controls, fuel tank installations and soil contamination controls must be in accordance with the Code of Practice for `The Control of Water Effluents from Service Stations AIP CP1-1992 and AIP CP4-1993', to the satisfaction of the Responsible Authority.

33. Stormwater discharged from the premises must not contain any visible oily sheen or hydrocarbon-water emulsion or other floatable material, to the satisfaction of the Responsible Authority.

34. Any construction activity must be carried out in accordance with `Construction Techniques for Sediment Pollution Control' Environment Protection Authority Publication No. 275, to the satisfaction of the Responsible Authority.

35. Polluted and/or sediment laden runoff must not to be discharged directly or indirectly into Melbourne Water drains or watercourses.

36. Measures must be designed and constructed to the satisfaction of the Responsible Authority to prevent fuel product spillage into the stormwater drainage system during bulk transfer operations. Such measures may include:

(a) A liquid spill retention system to contain spills which can then be transferred to the fuel tank via a valve; or

(b) A discretely drained area containing the tank fill points connected to a minimum 2000 litre Triple Interceptor Oil Trap or minimum 2000 litre petrol and oil interceptor trap. The area should be large enough to contain the gantry of the delivery tanker to ensure all fuel spills occurring during transfer operations drain to the Triple Interceptor Trap.

37. Before the use commences the Owner must enter into and comply with an agreement with Melbourne Water Corporation under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and stormwater from the subject land directly or indirectly into the Melbourne Water drainage system.

38. The permit holder must, to the satisfaction of the Responsible Authority:

(a) Provide AustRoads Type B Left Turn and Type C Right Turn lanes on Hall Road at the proposed entrance, such lanes must be constructed with an appropriate road pavement including kerbing, drainage and lighting, and this access may become left in/left out only following future duplication of Hall Road.

(b) Note the 20 metre road widening along Hall Road frontage as `Road' and configure the site to suit this requirement.

39. The permit holder must, to the satisfaction of South East Water:

(a) Enter into an agreement with South East Water Limited for the provision of water supply and fulfil all requirements to its satisfaction.

(b) Obtain a Notice of Agreement from South East Water, and all requirements must be fulfilled to the satisfaction of South East Water prior to consent to the issuing of a Statement of Compliance.

40. This permit will expire if one of the following circumstances applies:

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

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

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Jake Moore on telephone 9235-2131, quoting Melbourne Water's reference 78152.

2. The Best Practice Environment Management Guidelines for Urban Stormwater (The Stormwater Committee 1999) may be used as a guide when developing site controls to minimise sediment laden runoff and stormwater pollution during construction. Section 6.3, titled Construction Activity, of these guidelines provides a useful checklist to develop a site management plan.

Mr Mark Bartley of Phillips Fox, Solicitors, appeared for the Applicants for Review and called the following witnesses:

For the Responsible Authority: Ms Adeline Lane of Maddocks, Lawyers, appeared for the Frankston City Council and called Mr Marco Negri, Town Planner, of Contour Consultants as an expert witness.

For the Respondents/Objectors: Mr Barry Ross represented the Objector The Defenders of the South East Green Wedge Inc.

Mr J Murphy of KLM Gerner appeared for Objectors Mr R French.

For the Referral Authority: Mr Alan Gundry represented VicRoads.

1. This was an application under section 79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to make a decision in Permit Application No. 02103 within the prescribed time for the land at 510 Hall Street, Skye to be used and developed for the purpose of a `highway service centre'.

2. Another way of viewing the application is for a Service Station, Convenience Shop and a Convenience Restaurant with tourist information and respite facilities, such as playground and toilet facilities.

3. A letter had been received by the Tribunal seeking costs against the Council in respect of a mediation which had been heard earlier by Member Quirk. The Council objected to the contents of that letter, given the confidentiality of the substance of mediation proceedings. Accordingly the letter containing the costs application was removed from the file and returned to the Registrar for handling, separately to the merits of this review. We said that any consideration of costs should follow our Decision in this matter. The parties were satisfied with this approach. Costs will be reserved.

4. The Permit Applicants had lodged a review against failure with the Tribunal prior to the Responsible Authority realising that a review had been lodged, as a result of which it determined to refuse a permit and issued a notice of refusal. The parties were not troubled whether this was characterised as a review against failure or a review against refusal. It was agreed to characterise it as a failure review.

5. On 6 January 2003 Maddocks, Solicitors for the Responsible Authority, raised legal issues concerning the characterisation of the proposed use. It was decided to address these before a consideration of the merits.

6. This part of the decision is made by Mrs Tonia Komesaroff, a Legal Practitioner Member of the Tribunal.

7. This is the second attempt by the Permit Applicants to obtain a permit for what I shall, for the sake of convenience, refer to as a `highway service centre' on the subject land. The first application No. 99360 was the subject of a VCAT hearing before Member Sharkey in Application for Review No. 2001/18739, which he dismissed after non-compliance with his Directions dated 27 September 2001 reported in Hendriksen v Frankston City Council [2001] VCAT 2070. In that application the proposal was described as a `highway convenience or service centre' although a pivotal difference with that application was that it also comprised a "country trade supplies offering for sale rural supplies, fresh produce and craft materials".

8. In all other respects, excluding the country trade supplies, this application is for a similar proposal which includes:

* a service station with separate car and truck filling facilities

9. Ms Lane for the Responsible Authority maintained that the proposal should not be classified as an innominate and undefined use of `highway service centre' but should be described as each separate component use which comprises the global proposal, that is as a service station and as a convenience shop and as a convenience restaurant. A permit is also separately required for a crossover width wider than 7.7 metres for a service station pursuant to Clause 52.12 as well as for access to a road zone pursuant to Clause 52.29 of the Frankston Planning Scheme.

10. The debate between the Responsible Authority and the Permit Applicants does not currently have far reaching implications, because either way, whether one characterises the proposal as a highway service centre or whether one characterises the proposal as a service station, convenience shop and convenience restaurant, it is permissible in this Rural Zone.

11. However with the exhibition of Amendment 2030 and with the Ministerial imprimatur that it is a "seriously entertained planning proposal", the uses `service station' and `convenience restaurant' are proposed to be prohibited in this green wedge, although innominate uses will remain permit required if Amendment 2030 is gazetted in its present form.

12. The Permit Applicant calls the proposal a `highway service centre' to parallel it with a `freeway service centre'.

13. The differences between land uses comprising a `freeway service centre' and those comprising a `service station' and `convenience shop' are interesting.

Land used to sell motor vehicle fuel from bowsers, and lubricants. It may include the:

a) selling of motor vehicle accessories or parts;

b) selling of food, drinks and other convenience goods;

e) installing of motor vehicle accessories or parts.

A building with a leasable floor area of no more than 240 square metres, used to sell food, drinks, and other convenience goods. It may also be used to hire convenience goods.

Land used to prepare and sell food and drink for immediate consumption, where substantial provision is made for consumption both on and off the premises.

15. Taken together, the above three discrete land uses involve a very broad range of land uses including:

(i) the selling of petrol, vehicle lubricants, vehicle accessories and vehicle parts,

(vi) sale of food, drinks and other convenience goods;

16. On the other hand, although a `highway service centre' is not defined, a `freeway service centre' is defined as follows:

"Land which has direct access to a freeway and is used to provide essential services and facilities which encourage drivers to stop and take an effective break in the interests of driver safety."

But the definition does not stop there because Clause 52.30-1 constrains what might otherwise be perceived as a very broad land use comprising service station, convenience shop and convenience restaurant. Clause 52.30-1 has the interesting consequence of mandating certain essential facilities and prohibiting other components, some of which would normally be associated with a service station or convenience shop. That specification reads:

"A freeway service centre must provide only essential services and facilities. These essential services and facilities must be available at all times. Essential services and facilities that a freeway service centre must include are:

* Undercover fuel sales area for petrol, diesel and LPG.

* An area of not more than 240 square metres for the sale of food, drinks and other convenience goods.

A freeway service centre with access to a rural freeway must also provide local and regional tourist information.

* Mechanical repairs (other than the emergency repair of vehicles).

* Retail facilities of more than 240 square metres.

* Entertainment facilities, amusement machines or gaming machines.

* The sale, distribution or consumption of alcohol unless associated with a residential hotel/motel.

A freeway service centre with access to a rural freeway must not include overnight accommodation (other than for a caretaker or site manager).

17. Therefore, unlike a service station or convenience shop which might choose to include a mechanical repairs section, a video hire section, a pinball machine, car or truck wash facilities, these latter components are prohibited the freeway service centre.

18. Cascone and Another v City of Whittlesea (1993) 11 AATR 174 is the leading Supreme Court decision on the characterisation of uses. Ashley J. held:

"With respect to permit applications, the following principles, in my opinion, emerge from the cases to which I have been referred:

(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises as to whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is `yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is `no', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase `real and substantial' qualifying `use' will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between `purpose of use' and `use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of `innominate use'. It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the `real and substantial' purpose of use test will be applicable in factual situations having the perceived potential to fall within paragraph (4) or (5) above."

19. Ashley J. commences by effectively repeating the rule in Shire of Perth v O'Keefe and Another [1964] HCA 37; (1964) 110 CLR 529, 535 (per Kitto J); [1964] HCA 37; (1964) 10 LGRA 147 at 150 where the High Court held:

"......... The application of the ... law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. .........."

20. He then proceeds to the dominant/ancillary test. A good example of this is the definition of service station which in itself includes the selling of food, drinks and other convenience goods - as opposed to a convenience shop which is specifically defined as selling food, drinks and other convenience goods, albeit in a building with a leasable floor area of no more than 240 square metres. Even in these two definitions it is patent that the sale of food, drinks and other convenience goods might be ancillary to a service station on the one hand or a separate, distinct and dominant use on the other hand. It is always a question of fact and degree in each case. To that end, the Responsible Authority concedes that the tourist information facility, the playground and car parking components of the subject proposal are ancillary but maintains that the convenience shop and the convenience restaurant are not ancillary to the petrol sale facility but are independent land uses.

The Real And Substantial Purpose Behind The Proposal

21. Mr Bartley maintains that his client really seeks an `integrated proposal' which follows the `freeway service centre' model in some respects and differs from the three discrete land use models in that they are willing to accept permit conditions which constrain the land uses that would otherwise be a part and parcel of the three discrete land uses. In other words, Mr Bartley made it clear that his clients would accede to permit conditions prohibiting:

(x) servicing or washing of motor vehicles or trucks;

(xi) the installation of motor vehicle accessories or parts;

(xii) mechanical repairs to vehicles (other than the emergency repair of vehicles);

and would also accede to permit conditions prohibiting:

(xvi) retail facilities of more than 240 square metres;

(xviii) entertainment facilities, amusement machines or gaming machines;

(xix) the sale, distribution or consumption of alcohol.

22. That is because his clients' aim is to get permission for a facility which would provide essential petrol and services to drivers primarily along the Westernport Highway, as opposed to providing a facility such as motor vehicle repairs or the hire of convenience goods or trailers or car wash facilities which could be an integral component of providing a service for residents in the vicinity or in the adjacent urban areas.

23. The Responsible Authority conceded that the tourist information facility/booth, the playground, the car parking and landscaping are all ancillary uses, whether or not one characterises the proposal as a `highway service centre' or as a `service station, convenience shop, convenience restaurant'.

24. Mr Bartley's innominate `integrated' use description may be a convenient semantic summary of the substance of the facilities his client wishes to provide. It attempts to mirror to some extent the `freeway service centre' definition which places emphasis on service to highway users as opposed to a service for a nearby urban community provided and positioned outside the urban area.

25. But since Cascone was decided, the VPP format planning schemes have come into operation, which alter, with their `nesting' provisions, the previous definitions extant under the planning schemes in force when Cascone was decided. Clause 64 of the VPP format is a repetition of the fifth principle summarised in Cascone, ie:

"If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme."

which in turn was a re-statement of cl. 5AAA of the Melbourne Metropolitan Planning Scheme and the common law before that.

26. However, Clause 74 is a slight advance on Cascone as follows:

"The following table lists terms which may be used in this planning scheme in relation to the use of land. This list is not exhaustive. However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table."

27. The approach mentioned in the third principle of the Cascone decision, and furthered in the sixth principle, permits recourse to a new innominate description, but cl. 74 prefers recourse to the defined terms if at all possible - and it is so possible in this case.

28. Although it is true that a land use does not have to hire trailers, service or wash motor vehicles or trucks, or install motor vehicle accessories or parts in order to be considered a service station, nor must it hire convenience goods in order to be considered a convenience shop, once a land use sells motor vehicle fuel from bowsers and sells lubricants, it is a service station and once it sells food, drinks and other convenience goods from a building with a leasable floor area of no more than 240 square metres it is a convenience shop. The fact that it may not provide other possible facilities does not mean that it ceases to be a service station or a convenience shop.

29. Given the mandate of Clause 74 and the way the use has been expressed by previous divisions of this Tribunal in cases such as Apco Service Stations Pty Ltd v Casey City Council [2002] VCAT 189, Sherer v Casey City Council, Application for Review No. 2000/095273 dated 30 April 2001; Advocate Security v Mornington Shire Council [2000] VCAT 1034 and Abrecht v Baw Baw Shire Council [2001] VCAT 678, I conclude that the use ought to be described by reference to one or more terms listed in the table to Clause 74.

30. However there is a qualitative difference in the proposed facility because of the restrictions to which it is prepared to be subject, by way of permit conditions, and the merits have been decided on this more confined basis.

31. We now turn to the planning merits, which are decided by both Members.

32. We find the following description of the site and locality, taken from the written evidence of Mr Negri, to be appropriate:

"The site is described in Certificate of Title Volume 10108 Folio 019. The regular allotment has frontages of 431.02m and 463.25m to Hall Road and the Westernport Highway respectively and has an overall site area of 20.44 ha.

The site is positioned on the south-west corner of the Hall Road/Westernport Highway intersection and is approximately 14 km south of Dandenong and 22 km north of Hastings. A dwelling, shedding and dam associated with the rural use of the property occupy the site.

The application relates to the north-eastern portion of the site. Based on the application drawings, this part of the site has an area of approximately 2.7 ha with frontages of approximately 120m to Hall Road and 215m to the Westernport Hwy. This part of the land falls approximately 2.9m from the south-eastern corner to the

The surrounding area is characterised by various rural land holdings. These properties are largely cleared and used for grazing. These rural uses enhance the visual quality of the locality and provide attractive views for motorists on both Hall Road and the Westernport Highway.

Land to the east, on the opposite side of the Westernport Highway, is in the City of Casey and is also used for rural purposes."

33. There was a previous Application for Review No. 2001/18739 M & I Hendriksen v Frankston City Council for a similar facility on the subject land. Mr Sharkey disallowed the Application for Review and directed that a permit not be granted.

34. The proposal was described in the written evidence of Mr Hansen as follows:

"It is proposed that the subject land be used and developed for a Highway Service Centre, which would play a role similar to a Freeway Service Centre, on the Westernport Highway, which at this location is a divided highway with Declared Main Road status.

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

* Service Station with separate car and truck canopies and filling facilities;

* A 100 seat Convenience restaurant with external eating area and drive-through facility;

* Access to both Dandenong-Hastings and Hall Roads to VicRoads and Council requirements;

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

* Associated parking for 94 cars and nine trucks;

* Accommodation of PAO2 road widening along Hall Road.

The original Design Principles and Development Concept were developed by Chris Dance Land Design and considered at the previous appeal hearing. Although the layout has changed somewhat in response to requirements of VicRoads and Council, the aesthetic and design considerations remain largely consistent with the principles established in the Chris Dance report.

The main development is to be sited approximately 46 metres from Dandenong-Hastings Road and over 100 metres from Hall Road (exclusive of road widening) with substantial landscaping around the corner of Hall Road and along both frontages. The colour scheme envisages browns and greys and not the sometimes garish livery usually associated with these types of facilities, particularly in urban locations."

(Note: Dandenong-Hastings Road is the Westernport Highway).

35. The subject land is zoned Rural under the Victoria Planning Provisions (VPP) format Frankston Planning Scheme. It was the evidence of Mr Negri that the proposed use could be considered to constitute a clustering of discrete uses including a service station, convenience shop and restaurant, each of which are Section 2 Permit required uses in the Rural Zone. A permit is required for buildings and works associated with a Section 2 use, pursuant to Clause 35.01-3.

36. There is a Public Acquisition Overlay (PAO2) affecting a strip of land along the northern boundary of the review site abutting Hall Road, to provide for widening of Hall Road.

"The zoning Plans indicate that the site is located outside the Urban Growth Boundary within the Green Wedge (South-Eastern Non-Urban Area). This Section of the Green Wedge is quite narrow and extends across part of the Westernport Highway into the City of Casey."

38. The relevant planning controls and planning policies are fully set out in the submissions and evidence, which are adopted as part of these Reasons.

39. The Grounds relied on by the Responsible Authority were:

1. The proposal is contrary to Council's expressed planning strategies for rural areas, in particular the Municipal 'Strategic Statement - Clause 21.09 Rural Areas and Local Planning Policies - Clause 22.04 - Commercial Uses and Rural Main Roads Policy and Clause 22.15 -South East Non-Urban Area Policy.

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

3. The proposal would create an undesirable precedent for the establishment of similar uses within the non-urban area.

4. The proposal would prejudice and be contrary to the proper future planning of the area.

40. Ms Lane submitted for the Responsible Authority:

"48. Since the September 2001 interim determination by the Tribunal, a few changes (but critical changes) have taken place in both the physical and policy landscape within which the subject site and proposal sits. These changes, in Council's submission, make compelling more than merely persuasive the merit of Council's arguments. The changes take the shape of:

* the activation of the permit for a service station and convenience shop at the intersection of the Western Port Highway and Thompsons Road by the commencement of construction;

* the approval of a facility on the same side of Hall Road as the subject site, immediately opposite the land on the opposite side of the Western Port Highway;

* the adoption of Metrostrategy including the mapping of the green wedges so as to (in the case of the south eastern green wedge) include the subject site.

49. The facility at the intersection of Western Port Highway and Thompsons Road will provide not only petrol sales (and associated) services, but will also satisfy convenience needs of users o(the Western Port Highway.

50. The facility for which a permit has granted at the direction of the Tribunal by the City of Casey at 570 Hall Road, Cranbourne West involves:

The proposal is described in some detail at paragraph 18 of the Tribunal decision, Apco Service Stations Pty Ltd v Casey City Council (P51571/2001).

51. Member Cimino constituted the Tribunal in the Apco case. It is apparent from the Tribunal's reasons that the strongest influences on the Tribunal's decision to grant a permit were:

* the future urban designation given to the land by the Casey Planning Scheme, albeit the land was zoned Rural;

* the fact that, while there exist other permits for similar facilities further north and south of 570 Hall Road, there was at the time of the hearing no commenced or completed development.

52. In Council's submission, the combination of:

* the commencement of construction of the Thompsons Road facility; and

* the approval of a facility at the same intersection as the subject site

defeats the planning need argument which emerges as a theme through the Applicant's expert witness reports."

41. Ms Lane submitted with the respect to visual impact:

"The chief negative impact which Council regards the proposal to have is essentially a visual one. It is noted that, as observed by the Tribunal in the September 2001 decision, the proposal is for a modest and well designed building proposed to be in relatively muted tones in a well landscaped setting.

* this application is brought by the owner of the land, not the ultimate developer of the land;

* the operator of any service station, convenience shop and convenience restaurant on this site would require considerable signage (not depicted on the plans) to maximise prospective customer's awareness of the site and the facilities offered; and

* unless the property is leased or sold to the operator of convenience restaurant or service station and convenience shop who is independent of the existing mainstream of large operators of such businesses, the corporate colours and signage of the operator will be substituted for those nominated on the endorsed plan. No planning scheme control will operate to require a permit for change of colour.

What may have been an acceptable outcome at this stage of the process will become highly visual, demanding attention from passing motorists as a means of competing for business. The comfort taken by Mr Hansen in the flat and sparsely treed nature of the site will be to no avail. Ironically, it is precisely the relatively flat, sparsely treed characteristics of the site at the moment that the Scheme is seeking to preserve."

42. Ms Lane made reference to Clause 22.04, Commericial Uses and Rural Main Roads Policy, and Clause 22.15, South East Non-Urban Area Policy. Ms Lane relied on the evidence of Mr Negri and submitted that the proposal did not satisfy those policies.

43. It was the evidence of Mr Negri with the respect to Metropolitan Strategy:

"On 8 October, 2002, the Metropolitan Strategy became a document that Council and VCAT are required to consider when assessing planning permit applications.

The intent of Melbourne 2030 will be contained in a new policy, Clause 12 of the State Planning Policy framework of all metropolitan Planning Schemes. The draft version of this clause sets out eight key directions that influence good decision-making. These directions must now be considered when assessing a planning permit application.

The plans contained within the Metropolitan Strategy documents include the land in the South-East Green Wedge."

44. It was the submission of Ms Lane with the respect to Metropolitan Strategy:

"The policy position set out in the Scheme is only reinforced by Metrostrategy and, in Council's submission, comprehensively.

At an officer level, it is expected that the site will be contained within the Green Wedge Zone (there being no particular conservation of flora and fauna issues attached to the land).

The certainty that at least, convenience restaurant and service station will be prohibited under this zone illustrates the extent to which Metrostrategy is endeavouring to protect the green wedges from further intrusion by proposals unacceptable in their visual impact and which poorly complement the open space of the green wedge and its continued agricultural purposes.

As comprehensively discussed in the expert report of Mr Negri, the proposal is in conflict with the aims and detailed policy of Metrostrategy. Importantly, as observed by Mr Negri, should the Tribunal be satisfied that the need and safety arguments advanced by the Applicant are substantiated, there are other opportunities along the Highway which present an opportunity to satisfy this need without causing conflict with Council's policies and Metrostrategy."

45. Mr Gundry spoke to a written submission for VicRoads, a Referral Authority. Mr Gundry submitted:

"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."

46. Mr Ross spoke to a written submission for Respondent/Objector the Defenders of the South East Green Wedge Inc. Mr Ross submitted:

* The Green Wedge separates the bayside corridor from Dandenong and the growth areas of Cranbourne. It stops this region becoming a vast suburban sprawl and helps create a sense of community by providing open space between suburbs.

* It contains productive farms and other rural activities.

* It houses important activities and infrastructure that require large buffer areas, such as extractive industry, land fill operations, airports, sewerage works and offensive industry.

* It provides space for recreation and conservation.

* The existence of Green Wedges has played a big part in establishing Melbourne's reputation as being one of the world's most liveable cities.

* The proposed facilities would be in a narrow and sensitive part of the South East Green Wedge and do not comply with the spirit of the recommendations of the South East Non Urban Study (SENUS). These recommendations were incorporated in a memorandum of understanding signed by the Frankston City and the three other municipalities concerned and are also included in Frankston Council's Municipal Strategic Statement.

47. Mr Murphy spoke to a written submission for Respondent/Objector Mr R French. Mr and Mrs French are owners and occupiers of 475 Hall Road, which is to the north-west of the subject land on the opposite side of Hall Road. The property contains a dwelling and a former dairy. Mr Murphy summarised his submission as follows:

"In summary it is considered that the application is for a petrol station, car wash and restaurant and the associated buildings and works are inappropriate for the site given the:

* The introduction of Melbourne 2030 and the Urban Growth Boundary;

* Existing Rural zoning of the land and the future zoning given the green wedge policy;

* The potential for increased traffic along Hall Road;

* The approval and commencement of service stations and additional facilities within the immediate area; and

* The opportunity for a north bound traffic to gain access to service stations and additional facilities on the south bound carriageways due to the roundabouts at the intersections of the Western Port Highway and Hall Road and Thompson Roads."

48. Mr Bartley spoke to a written submission for the Applicants for Review/Permit Applicants. Mr Bartley made reference to the Decision of Mr Sharkey in Application for Review No. 2001/18739 M & I Hendriksen v Frankston City Council and submitted:

"It is clear from the decision of the Tribunal that the reason for refusal was the failure by the Applicant to properly prepare the revised plans strictly in terms of the directions of the Tribunal. The Tribunal in no way withdrew or detracted from its earlier ruling regarding the appropriateness of the development of a Highway Service Centre at this location.

Importantly, the Tribunal extensively quoted from and supported the Council's policy framework but found that the proposal, without the Country Trade Supplies, was a Highway Service Centre designed to provide a service for the arterial road traffic moving on Westernport Highway. It was not considered to be an 'urban use' which would be more appropriately located within an urban environment.

The very purpose of a Highway Service Centre is to serve the traffic on the highway, not an urban area. This is a key aspect of the characterisation of the use, particularly in the context of the draft Metropolitan Strategy - Melbourne 2030, discussed later.

In the interests of the orderly conduct of its business and predictability and certainty of outcome for parties, where the Tribunal has fully considered an application, come to clear conclusions about that application and indicated the matters which needed to be addressed to allow the application to proceed, the Tribunal should be cautious in following a course other than that identified by the previous Tribunal.

It is submitted that in a case such as this, where a repeat application has been brought following clear views of the Tribunal, there must be some significant change in policy or circumstances for the Tribunal to reverse its previous findings.

It is submitted that there is nothing now before the Tribunal, including Melbourne 2030, which negates any of the findings on the substantial merits of the application identified in the earlier Tribunal decisions."

"The officer's report places reliance on the fact that a permit had been granted at the direction of the Tribunal for a service station on the south-east corner of Hall Road and Westernport Highway. It is considered undesirable to place reliance on the potential development of that facility for two reasons. Firstly, both Hall Road and Westernport Highway carry significant arterial traffic volumes. The use of the site opposite for northbound traffic will force northbound traffic to make a U-turn through the roundabout at the intersection which will lead to two additional give way situations, with south bound traffic in Westernport Highway and west bound traffic in Hall Road being forced to give way to these movements. There could also be additional risks of vehicles making a U-turn across on-coming traffic.

The second reason is that given that drivers would need to proceed south for some distance before making a second U-turn to resume their north bound journey, it is likely that only a small percentage of drivers who might otherwise take a break would do this.

The new Metropolitan Strategy - Melbourne 2030 was released by the Minister for Planning in October 2002. In amongst a wide range of policy proposals, the plan identifies an Urban Growth Boundary ("UGB') and indicates that areas outside the Urban Growth Boundary are to be designated as "Green Wedges" to be protected against unplanned urban encroachment.

At this stage a number of issues regarding implementation are yet to be finalised but it appears from a reading of the strategy and the supporting Implementation Plans that the Urban Growth Boundary will be set following the finalisation of strategy with the boundary being reviewed, possibly annually, in the main growth areas.

The subject site is located within an area known as the South East Green Wedge with the UGB for the Casey Growth Area located along Dandenong-Hastings Road, north of Hall Road and along Hall Road east of Dandenong-Hastings Road.

The Urban Growth Boundary for Frankston is generally located 1 to 2 kilometres west of Dandenong-Hastings Road.

It is proposed to introduce two new zones, a Green Wedge Zone and a Rural Conservation Zone. At this stage, it is not clear what zone applies to what areas.

It is submitted that to the extent that it is relevant, the appropriate test for the Tribunal to apply is whether the approval of the current proposal would impair the objectives of Melbourne 2030 and not merely be inconsistent wit the strict letter of the proposal.

In relation to the proposed zone controls, within the Green Wedge Zone a Freeway Service Centre is proposed to be a section 2 use while a service station would be prohibited. The innominate category is included in section 2. In the Rural Conservation Zone both a Freeway Service Centre and a service station would be prohibited. The innominate use category would also be prohibited.

Given the established patterns of usage and the extensive clearing and farming practices which have been undertaken in the area, it is difficult to see the land being zoned Rural Conservation. It would seem to be more likely that it would be included in the Green Wedge zone.

In either case, it is submitted that in the context of the existing pattern of established uses within the Frankston Planning Scheme area and the approvals and proposal for the Casey Planning Scheme area there is no way in which the approval of this Highway Service Centre could be said to jeopardise the achievement of the policy objective of the proposal contained in Melbourne 2030."

50. It was the evidence of Mr Hansen with the respect to Melbourne 2030:

"Implementation Plan 5 Green Wedges - Draft, October 2002

This document indicates the policy direction for land in the Green Wedges. It is proposed to establish working groups to review each of the Green Wedge areas and determine what zones should apply. At the present time, there are no specific proposals to change existing zoning, although the policy indicates generally that it is likely that land would be rezoned to either the Green Wedge Zone or the Rural Conservation Zone.

I do not consider that the development of a Highway Service Centre as proposed would prejudice the achievement of the objectives of the change which is proposed and it is not inconsistent with the overall policy direction of protecting the non-urban areas whether of "Green Wedge" or Rural Conservation" value from the intrusion by inappropriate commercial activities.

I believe that it is also important to note that this site is immediately diagonally opposite the urban zone boundary of the City of Casey and opposite a Service station, which has been recently approved for a 2.3 hectare site.

The proposal provides a facility related to the Westernport Highway, which is shown on the strategy maps as an existing highway, providing improved safety and efficiency for travel.

51. Mr Negri in his evidence commented on the Decision of Mr Sharkey in the previous Application for Review No. 2001/18739 M & I Hendriksen v Frankston City Council as follows:

"In considering the implications of the proposal on the achievement of the planning policy set out in the Frankston Planning Scheme, I am mindful of the comments of the previous division of the Tribunal and the Panel appointed to hear submissions in relation to Amendment C3.

In particular I note that the Tribunal concluded that:

"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."

I also note that in respect of proposed amendment C3, which would have allowed urban uses in the Green Wedge, including Highway Service Centres along the Westernport Highway, the Panel commented that:

"In the view of the Panel the land in C3 clearly continues to function as a green wedge. It has for the most part a clearly defined and articulated rural character. It serves as an effective visual break between the urban areas of Frankston and Cranbourne and provides an important entry to the Mornington Peninsula. It also serves as a significant regional resource for extractive industry and for landfill in the longer term. These functions are all clearly recognised in the MSS and local policy.

Council has not argued that the concept of the green wedge should be abandoned. Rather, it has put the proposition that the green wedge's functions and values can be maintained if C3 is implemented. For the reasons given in the remainder of this report, the Panel does not agree with this proposition.

The Panel believes that development of urban uses in the green wedge in general and the area of Amendment C3 in particular is not appropriate."

It might be said that this is a case where there is a significant difference in opinion as to the policy position between the Tribunal, in determining a planning application and the Panel, in assessing the appropriateness of proposed planning controls and policies for the area.

The conclusions of the Panel reinforce the significant role played by the Green Wedge and support the planning outcomes sought for the South-Eastern Non-Urban Area by the Local Planning Policy Framework.

I read the Tribunal's conclusions in relation to the previous proposal as being a synthesis of a policy analysis which weighs the achievement of certain planning intents, such as the enhancement of service along a transport route (Clause 18.01), against the failure to satisfy policy aimed at protecting the green wedge.

Given the wide range of policies at both the State and Local level it is often necessary to consider and address what appear to be conflicting objectives in the assessment of a planning application. In such circumstances, the key determinant in balancing such conflict is the extent to which the outcome will deliver a "net community benefit."

In the previous decision, the provision of a "Highway Service Centre" was considered to respond to a significant need given the absence of such a facility on the northbound lane of the Westernport Highway. In my opinion the Tribunal applied greater weight than warranted to the question of need and down played carefully considered and clearly articulated policy such as the Commercial Uses and Rural Main Roads Policy (Clause 22.04) and the South Eastern Non-Urban Area Policy (Clause 22.15).

Whilst the Tribunal has previously made a judgment in respect of the proposal's suitability from a policy perspective, much has changed since this decision which warrants a re-examination of the various competing policies. In particular:

1. The Tribunal's approach to addressing and balancing competing policy has become more sophisticated and there is now a greater awareness of how to address the balance between conflicting policy.

2. The release of Melbourne 2030 reinforces the importance of the Green Wedge, establishes policy directions aimed at maintaining the Green Wedge and suggests the application of land use zones to implement such strategy which could prohibit the various uses sought by the application.

3. The need for such a facility has all but disappeared with the approval of a similar facility nearby."

52. We acknowledge the submission of Ms Lane, and agree that there have been changes since the Decision in Application for Review No. 2001/18739 M & I Hendriksen v Frankston City Council with the respect to both policy and approvals for similar facilities.

53. The Reasons in Application for Review No. 2001/18739 discussed policy and also cited Application for Review No. 1999/98921 Advocate Securities Pty Ltd v Mornington Peninsula Shire Council. Mr Sharkey, in his Reasons in Application for Review No. 2001/18739, said:

"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 City's rural areas.

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 conditions should be granted."

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."

54. We adopt what was said in the previous Decision. We consider, in particular, that the proposal is supported by Clause 22.04, Commercial Uses and Rural Main Roads Policy, and the sections of the Municipal Strategic Statement considered previously and quoted at paragraph 53 above. We consider that a proposal such as this to serve northbound traffic on Westernport Highway would assist with the objective of maintaining high levels of road efficiency and safety, not be detrimental to rural activities, and would be appropriately sited. We do not consider that it would be an urban related commercial use more appropriately located in an urban area.

55. We acknowledge the policy changes and changes with the respect to further approvals that have taken place since the Decision in Application for Review No. 2001/18739. We will address those changes.

56. The proposal abuts the boundary of a green wedge with the Urban Growth Boundary being the Westernport Highway south of Hall Road and then east along Hall Road. The Urban Growth Boundary for Frankston is one to two kilometres west of the Westernport Highway. We do not consider that location of the proposed facility in the south-west quadrant of the Westernport Highway-Hall Road intersection, diagonally opposite the urban grown boundary for the Casey growth area, would compromise the green wedge. The proposal would support the use of the Westernport Highway by north bound traffic and being on the boundary of the green wedge would not compromise that green wedge.

57. The facility at the intersection of Westernport Highway and Thompsons Road will service southbound traffic, as well as the facility opposite at 570 Hall Road on the south-east corner of the Westernport Highway/Hall Road intersection, the permit for which was granted following Application for Review No. P515871/2001 Apco Service Stations Pty Ltd v Casey City Council. Mr Cimino allowed the Application for Review and directed that a permit be granted. We consider that this proposal and the proposal at 570 Hall Road would operate as a pair, this proposal servicing northbound traffic and the proposal at 570 Hall Road servicing southbound traffic.

58. There was reliance, with the respect to the needs of users of the Westernport Highway, in the subject Application for Review and the previous Application for Review No. 1999/98921, on proposals for which permits have been granted. There was reliance in the subject Application for Review on the proposal at the intersection of Westernport Highway and Thompsons Road on which construction has commenced. Those proposals all abut the southbound carriageway of the Westernport Highway.

59. One of the Grounds on which the Responsible Authority relied in the subject Application for Review was that the proposal would set an undesirable precedent. Any proposal must be considered on its own merits. The existence of a permit for this proposal servicing the northbound carriageway might itself be a consideration with the respect to whether any further permits should be granted for a proposal servicing the northbound carriageway.

60. Another Ground was that the proposal was contrary to the primary purpose for which the land is zoned. This is acknowledged, but this does not mean that a proposal is prohibited. Any proposal must be considered on its own merits.

61. Another Ground was the proposal would prejudice and be contrary to the proper future planning of the area. As we have already said that any future proposal must be considered on its own merits.

62. Draft conditions were provided by the Responsible Authority, VicRoads, EPA, Melbourne Water and South East Water. We have settled conditions having regard to those draft conditions. There were four road related conditions suggested by the Responsible Authority and we have deleted draft conditions that would duplicate draft conditions suggested by VicRoads.

63. Accordingly the Tribunal will allow the Application for Review and direct that a permit issue.