Mr C Townshend of counsel and Mr N Tweedie of counsel instructed by Macpherson and Kelly lawyers. Evidence was called from Mr P Borelli, town planner.

Ms T Cincotta, solicitor of Best Hooper solicitors. Evidence was called from Ms R Hansen, town planner.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Jocelyn Meadows Pty Ltd seeking review of a decision made by the Casey City Council ("the Council") to refuse to grant a permit in permit application no. P433/04. A Notice of Refusal was issued on 10 August 2004. The Application was lodged on 23 August 2004.

2 The review site is located on the north side of Verdun Drive to the eastern end of the Fountain Gate Narre Warren Activity Centre ("the Activity Centre"). The site has an area of 1.2 hectares and is currently vacant. It is part of a lot of 6.4 hectares that extends to the west. That larger holding (plus other land) was included in proceedings before the Tribunal in Jocelyn Meadows v Casey CC [2004] VCAT 2627 ("the previous Tribunal decision"). The review site backs onto the Princes Freeway to its north and extends west to a pipeline easement.

3 Land to the south of the subject site is occupied by uses including a school, restaurant and Honda and Mercedes Benz car showrooms. I was advised that Permit 894/03 was issued by the Council on 16 March 2004 allows the use and development of land abutting the eastern boundary of the review site for two motor vehicle sales premises, one of which is understood to be occupied by Mazda. That is now under construction. The second dealership is not yet under construction. With both approved developments, Ms Hansen estimated the area committed to motor vehicle sales in this part of the Activity Centre to be approximately 2.83 hectares.

4 West of the review site is a retarding basin and various restricted retail premises front Narre Warren North Road and Victor Crescent.

5 The Applicant seeks approval to use and develop the land for the purpose of motor vehicle sales and associated functions such as repairs. The key elements of the proposal are:

•

A floor area of 2,735 square metres in the form of two structures linked by an entry foyer - a car showroom/administration building and a workshop.

•

The buildings setback by 25-30 metres from the street (southern boundary) with a length of approximately 100 metres in total.

•

A display area forward of the showroom for 54 new cars and 55 used cars.

•

A workshop with 17 service bays.

•

A total of 40 car spaces for staff and 15 spaces for visitors with additional parking for service vehicles.

•

A total staff of around 65 persons.

•

Car parking and a 6 metre wide landscape setback forward of the building, with a landscaping plan showing the proposed plantings.

•

A single and two storey building with a higher central element with the height ranging from 6 metres to 14 metres with the main section being at 8.2 metres.

6 Mr Townshend confirmed that signage does not form part of the proposal.

7 The proposed facility is intended to replace an existing Toyota showroom in Berwick, around 2.5 kilometres away. An existing Toyota service centre in Berwick, separate to the existing dealership, and would be retained.

8 The subject land is zoned Business 2 under the provisions of the Casey Planning Scheme ("the Scheme"). The purpose includes "To encourage the development of offices and associated commercial uses." A permit is required to use and develop the land for motor vehicle sales. The decision guidelines set out in Clause 34.02 have been considered by the Tribunal.

9 A Development Plan Overlay (Schedule 8 Commercial Areas) applies to the land and the entire area of the Fountain Gate Activity Centre. Pursuant to the provisions of Clause 43.04-1:

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority.

s

Be generally in accordance with the development plan.

s

Include any conditions or requirements specified in a schedule to this overlay.

10 Schedule 8 sets out the requirements for the development plan but no requirements relating to the issue of a permit are relevant in this case.

11 Thus, a permit can only be issued if the proposal is found to be consistent with a development plan that is to the satisfaction of the Responsible Authority. The previous Tribunal decision confirmed the Fountain Gate Narre Warren CBD Development Plan 6 July 2004 as the approved development plan under the Development Plan Overlay. It is common ground between the parties that if the proposal is found to not be generally in accordance with that Development Plan then no permit can issue and, conversely, if the proposal is generally in accordance with that Plan then a permit could issue. The previous Tribunal decision set out much of the background to the current Development Plan and I find no need to recite any of that material.

12 A Development Contribution Overlay (Schedule 7) applies to the land. That is relevant in so far as if a permit is directed to be issued, a condition is required to address the provisions of the Overlay.

13 Clauses 52.06 and 52.07 are relevant to the consideration of the proposal but these matters are not central to the issues in debate in this Application.

14 The provisions of Clause 52.14 relate to motor vehicle sales. Pursuant to Clause 52.14 land can only be used for motor vehicle sales if the requirements of the Clause are met. A permit may allow the requirements to be varied. Based on the application plans, variation from the requirements of Clause 52.14 is sought in relation to the size of the office, that exceeds 19 square metres, and for the inclusion of repairs on-site.

15 A number of other Clauses are relevant to the consideration of this Application, principally Clauses 11, 14, 17.01, 17.02, 18.02, 19.03, 21, 22.07 (Activity Centres), 22.15 (Good Design Policy) and 65 (general decision guidelines).

16 Melbourne 2030 includes the Narre Warren centre as a principal activity centre.

17 All of the above Clauses and Melbourne 2030 have been considered by the Tribunal in reaching a determination.

18 At the Hearing, written and oral submissions were presented by the parties. I have considered those submissions, assisted by my visit to the site and locality, having regard to the policies, objectives and decision guidelines of the Scheme. I have decided to affirm the decision made by the Responsible Authority. The following sets out the reasons for my decision. I do not recite all of the material presented, as the detailed written submissions and statements of evidence tendered by the parties are retained on file, although I do refer to some of the main points. The key issues for determination are:

•

is the proposal consistent with the Business 2 Zone, relevant policies and decision guidelines of the Scheme, and Melbourne 2030?

•

are the proposed use and development generally in accordance with the 2004 Development Plan that has been approved by the Council as required by Clause 43.01?

•

are the proposed use and development consistent with the 2004 Structure Plan that is an adopted Council policy?

•

is the form of the development acceptable having regard to Clause 52.14, Clause 34.02 as well as relevant local state and policies?

Consistency with Business 2 Zone, Policies and Melbourne 2030

19 Ms Cincotta submitted that the use of the land for motor vehicle sales is not consistent with the purpose of the Business 2 Zone as it is a retail use, despite the fact that the Council has approved other motor vehicles sales premises on nearby land with the same zoning.

20 In the previous Tribunal decision, Deputy President Gibson and I said[1]:

Both the Council and Westfield submitted that the proposal is not consistent with the purpose of the Business 2 Zone. In addition to the implementation of state and local policies, the purpose of the Zone is to achieve office and associated commercial uses. On the face of it, the proposal could be said to not advance this purpose of the Zone and given its scale, a review of the zoning through an amendment might usually be said to be warranted if it is to proceed. However, it is relevant in this case that the Council has allowed other restricted retail in the same zone and, on that basis, it is difficult to conclude that the proposal should be rejected for reasons relating to the consistency with the purpose of the Zone alone.

21 I adopt the same rationale in the current case.

22 That is, while I consider that it can also be said that the proposed use in this case does not advance the purpose of the Zone, as it is essentially a retail use, it would not be fair to refuse a permit for the use on this ground alone given the way the Zone has been applied and administered by the Council.

23 When considering the policies set out in the State Planning Policy Framework and Melbourne 2030 as well as the notion of orderly planning, I accept Mr Borelli's evidence that there is nothing in Melbourne 2030 or the Scheme's policies that advocates restricting uses such as motor vehicle sales in principal activity centres. Rather, as a use that would draw from a wide catchment, there is a rationale to include this use in an activity centre. Ms Hansen's evidence was consistent on that point. However, I do not think that it can fairly be said that a principal activity centre is the only location where such a use may be suitable; that is, it is not a policy imperative that a motor vehicle sales premises must be in a principal activity centre. Other locations involving a business zoning, and possibly land zoned for other purposes, may well be suitable dependent on the facts, policies and circumstances that apply.

24 At face value, one can appreciate that there are said by the Applicant to be benefits in terms of employment opportunities as well as advantages to customers and business operators in terms of a co-location of like facilities, in this case, car sales. The principle of co-location is specifically encouraged by Clause 17.01 in relation to the sharing of facilities where it is policy to "maximise opportunities for co-location, multiple use and sharing of facilities". That is reflected at Clause 21.13, under heading of "accessibility" where it is said that:

The community is best served by grouping major and community facilities together. The co-location of these facilities in established and planned town centres has many advantages, including increased accessibility and convenience, reduced travelling costs, choice of travel mode and better use of infrastructure.

25 The principle of co-location in terms of sharing of facilities such as car parking can be extended to a concentration of like uses of a comparison shopping type. For example, that is a reason why large land areas are set aside for peripheral sales, allowing home-maker businesses to co-locate and to provide choice for shoppers. However, in some circumstances there may be policies that suggest that there can be too much of one type of business thereby undermining other policies for an activity centre. Debates about the number of non-retail uses or restaurants in a retail core are examples. In the current case, the issue is about achieving a mix or balance of land uses and whether approval of the proposal is at odds with, or would undermine, the outcomes sought by the approved Development Plan.

26 In conclusion, if there was no Development Plan and no Structure Plan for Fountain Gate, the proposed land use could be acceptable in principle in terms of the state and local policies that apply and Melbourne 2030.

Is the Proposal Generally in Accordance with the Development Plan?

27 Based on the provisions of DPO8, the use and development sought in this permit application must be generally in accordance with the approved Development Plan. The principles set out in Canet v Brimbank CC & Anor (2003) 13 VPR 58 citing the Tribunal's decision in Application for Review No. 1999/34936 City of South Melbourne v Raftopoulos were referred to by both parties as to what "generally in accordance with" means:

General accordance is a question of fact to be judged on the facts and circumstances of each case.....The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".

28 Put another way, "generally in accordance with" does not mean exactly or precisely in accordance with[2].

29 In considering the submissions and evidence, I deal with land use and development separately for convenience although these facets are linked. That is ultimately important to my determination as the Development Plan must be considered in its entirety with land use and development outcomes inextricably linked to achieve the Plan's overall aims.

30 The Council's position was that the proposal is not generally in accordance with the 2004 Development Plan. Ms Cincotta submitted that the proposed use would not achieve the goal for Precinct F of "office and eastern town centre" and "substantially exceeds the 4,000 square metre retail floorspace limit" without providing "substantial associated office development". She relied on Ms Hansen's evidence that there is an adequate representation of motor vehicle sales in the Precinct and an oversupply of motor vehicle sales would result from the approval of the Application. Ms Hansen said that now is the time to "draw a line in the sand" as there are two car sales yards, one under development and another approved but not yet commenced.

31 In response, Mr Townshend submitted that the proper test is to achieve general accordance and it is not necessary to demonstrate compliance with the Development Plan. He submitted that the approved Development Plan can not be interpreted in the manner sought by the Council, rather, the Plan is more general in its language and does not purport to dictate or prescribe an outcome other than in relation to some very specific matters such as restricted retailing. That is, the Plan can not be taken to exclude other forms of retailing or additional motor vehicle sales particularly when motor vehicle sales is specifically referred to as a desired outcome.

32 Mr Townshend submitted that to demonstrate that a proposal is generally in accordance with the Plan, it is fair to also ask whether the proposal would undermine the outcomes sought given the generic terminology and ambiguity within the Development Plan.

33 Mr Townshend relied on Mr Borelli's evidence that motor vehicle sales is specifically provided for in Precinct F and the proposal is therefore consistent with the uses anticipated for this part of the Precinct. Mr Borelli said that it is wrong to assume that the reference to motor vehicle sales was intended to refer to existing premises and preclude new premises. He referred to the benefits of co-location of uses such as motor vehicle sales and the suitability of other sites for purposes such as housing and offices.

34 There is clearly disagreement between the parties as to what the Development Plan advocates for Precinct F Business Park and Living Precinct and whether the proposed use is specifically discouraged or whether it is a desired outcome. Both positions are arguable in my view.

35 Precinct F is divided into two halves. The subject land is included in the eastern half. The relevant extract from the 2004 Development Plan describing the goal, appropriate activity/elements and design principle/outcomes for the eastern half of the Precinct is included in an appendix to these reasons. I understand the basis of the Council's position that retailing sought for the eastern half of Precinct F is essentially limited to 4,000 square metres in a small neighbourhood centre. Other parts of the Development Plan[3] make clear that retailing is sought to be restricted so that it does not compete with other outcomes sought for the Activity Centre. However, the strength of the Council's argument is diminished because:

•

although the Council's submission sought to categorise motor vehicle sales as a retail use, some 28,300 square metres of motor vehicle sales alone has been developed or approved in this part of the Precinct.

•

the Council issued a permit for the two motor vehicle sales premises of nearly 8,000 square metres east of the subject land on 16 March 2004 on the basis of a draft Structure Plan that had identical wording in relation to the eastern half of Precinct F as the 2004 Development Plan. The officer's report relating to the approval of those premises referred to the draft Structure Plan and, when referring to the fifth arrow point under the heading design principles/outcomes, said "The proposal is consistent with such".[4]

•

in my view, the Development Plan's list of "Appropriate activities/elements" can not be narrowly interpreted to exclude all other uses; a plan with a 30 year time horizon cannot anticipate every use that may be found to accord with or advance the Plan's vision.

36 The Plan seeks to limit retail use in Precinct F to avoid the potential development of a second major retail node in competition with the retail core or Narre Warren Village. That was also the direction of the 2001 Development Plan[5] although the Council may have departed from the more liberal position in the 2001 Plan that referred to a limitation on retail in Precinct 5 "to the extent that the same does not conflict with retail developments in Precincts 1 and 8"[6].

37 "Motor vehicle sales" is not the same type of retail use as a shop or a small supermarket. The 2004 Development Plan specifically seeks to direct retailing to the retail core and a small centre in the eastern half of Precinct F but there is ambiguity in so far as motor vehicle sales is referred to as a desired outcome in Precinct F. That is, if one assumes that "appropriate activities/elements" does not mean "the only allowable activities" it can be fairly argued that additional motor vehicle sales could be generally in accordance with the Plan as it is nominated as a desired outcome. If a threshold had been reached or was sought, the Council could have limited further motor vehicle sales or set a maximum limit on that activity in the same way as it has sought to preclude more restricted retailing or define the size of a small neighbourhood centre. It has not, however, done so.

38 The Council's arguments that retail is not intended to be a dominant use in the Precinct, and that there is sufficient representation of motor vehicle sales, are relevant to the other part of my consideration under this heading, that is, whether the use proposed would not be generally in accordance with the Plan as it would conflict with or undermine the direction of the Plan. The point made by the Council is that there is enough motor vehicle sales in this area and another facility of this size would reduce the potential to achieve the type of land use mix sought by the Plan, specifically office. That view is challenged by the Applicant on the basis that, inter alia, there is an advantage in concentrating like uses, that the proposal brings employment opportunities and that there would remain ample scope to achieve 50,000 square metres or more of offices as well as housing.

39 Neither party provided quantified assessments to support their respective views on this matter. That is, there was no detailed analysis demonstrating why there are too many car sales or estimating the land resource that would remain for alternative uses if the Application was allowed. The parties essentially argued in principle; that using the land for more motor vehicle sales diminishes the scope for offices and housing -vs- there is ample land left to provide for housing and offices given the site is only 1.2 hectares.

40 The primary land use objective for this part of Precinct F is offices. When closely examining the existing land uses and committed projects in the eastern part of Precinct F, the options for offices and housing are:

•

the review site;

•

the land to the east of the review site that was considered in the previous Tribunal decision;

•

whatever land might become available around the retarding basin; and

•

a limited number of other lots.

41 There may be redevelopment associated with other lots that are actively used at present, but that is not certain.

42 The proposal for nearly 27,600 square metres of restricted retail and trade supplies floorspace on 6.83 hectares of land was found by the Tribunal to potentially jeopardise the outcome sought in the 2004 Development Plan[7]:

.... it is apparent that the proposal for nearly 27,600 square metres of restricted retail and trade supplies floorspace is not consistent with the directions set out in the Plan. On one view the proposal would extend and consolidate the peripheral sales precinct that has developed but that is not consistent with the direction adopted in the Plan that seeks to consolidate that activity in Precinct E while providing some other opportunities for restricted retailing further to the west. We are persuaded that the proposal would significantly constrain those opportunities in such a manner as to potentially jeopardise the Plan's aspirations, particularly as a result of its extensive scale.

43 The current proposal can be distinguished from the previous Application for several reasons highlighted by Mr Townshend, including:

•

the scale of the current proposal is substantially less than the proposal for restricted retailing considered by the Tribunal and would have less potential to preclude the land use mix objectives sought by the Plan.

•

the review site is smaller and not a prominent location in the Activity Centre - it is to the north-eastern periphery and would not be readily apparent from the Princes Highway or Princes Freeway once the remainder of the Precinct develops.

•

the land would be in a single tenancy and not fragmented thereby retaining scope for a range of redevelopment options in the future.

•

there might be better options for housing within the Precinct.

44 I also accept that there are advantages to customers and an operator with a concentration of like uses as motor vehicle sales that may involve comparison shopping with customers drawn from quite a wide catchment. I am not persuaded by the additional argument put by the Applicant that there is a strong reason on the basis of a wider "community need" for the purchasing and servicing of Toyota vehicles, albeit I accept that Toyota is a major supplier of new cars and some jobs are likely to be created.

45 Conversely, the following findings carry significant weight:

•

I am not persuaded that the review site could not be developed for "appropriate activities/elements" such as offices or housing. It is significant that the site is part of the largest remaining land parcel in the Precinct and the proposal would extend motor vehicle sales westwards into an area that is critical to the development of offices and housing - the proposal would significantly increase motor vehicle sales uses and would constrain (albeit not preclude entirely) the ability to achieve the land use mix consistently pursued by Council.

•

the Plan seeks to identify and protect opportunities for housing and offices mindful of the fact that these uses will take time to establish.

•

allowing motor vehicles sales as an interim measure is not appropriate; the benefits of such an approach do not outweigh the incompatibilities with the long term aims for the Precinct.

46 For the above reasons, it is open to conclude that the use of motor vehicle sales is generally in accordance with the 2004 Plan for Precinct F. It would be a "tough" decision to find otherwise given the words of the Plan and the Council's approval of such a use previously. However, it is also open to find that substantial additional motor vehicle sales could have the potential to undermine the achievement of the Plan's objectives. My consideration of the Plan's development outcomes gives weight to the latter conclusion.

47 Ms Cincotta submitted that although a proposal could be generally in accordance with the Plan even if it did not meet all of the design guidelines, the application fails to meet a number of the fundamental design principles including in relation to car parking, pedestrian links and front setbacks. Ms Hansen was critical of the proposal in relation to its architectural styling and said that it would be possible to design this use in a way that more closely aligns with the design outcome sought by the Development Plan.

48 In response, Mr Townshend conceded that the proposal does not comply with all aspects of the design outcomes of the 2004 Development Plan. He said that those outcomes are not appropriate for this kind of land use but, if the use is acceptable then the built form should also be found to be acceptable. Mr Borelli stated that the proposal was prepared based on the guidelines associated with the 2001 Development Plan. Even so, he said that the proposal complies with most of the urban design guidelines in the 2004 Plan and the only departure is that the building does not abut the street. Mr Townshend said that the guidelines do not preclude other design options and that the Council had approved developments that were not consistent with guidelines. Mr Townshend submitted that the proposal would be consistent with existing buildings near to the review site.

49 The Development Plan sets out a series of Urban Design Guidelines in addition to the direction about built form that is included in Precinct F "Design guidelines/outcomes" that I have recited in the appendix. The Guidelines in the Plan are, in my view, clear in so far as they establish a vision for the Activity Centre. They seek to "set basic rules within which to work"[8] and, for the purposes of this review, I consider that direction is identifiable.

50 I have no criticism of the design or architecture in terms of the land use sought per se, however, the design fails when considered in the context of height, setback and orientation components of the Guidelines that seek a harder and denser urban form. For example:

•

The preferred height is 15 - 23 metres while most of the proposed development is at a lesser scale;

•

The building does not occupy the corner or provide an active building frontage to the street;

•

The buildings are not built to the street frontage and the exception of "major car parks...primarily in the retail core"[9] does not apply;

•

The proposal does not provide means for shelter for pedestrians such as canopies over public spaces or colonnades;

•

The proposal does not provide direct public entry from the street.

51 It is significant that the Plan provides for variations from the Guidelines[10]:

...where the development proposal is not in line with Council's objectives or vision, the proponent must justify in what ways the proposed development provides a solution of greater design merit than that suggested in the Development Plan. [Tribunal emphasis]

52 The proposal is generally in accordance with some of the development guidelines (eg. it responds to the form of the street, is articulated and varied in materials and has an entry that is identifiable), but the outcome is at odds with the design philosophy and does not assist in moving towards the form sought by the Development Plan. The departures are not minor and I am unable to form the view that the outcome achieves "greater design merit".

53 Even if the use proposed land use was found to be acceptable, the design guidelines can not be ignored; they are just as relevant and are integral to the overall plan. Thus, I cannot accept Mr Townshend's submission that if the use is acceptable then the proposal can proceed. [I note in this context that the Guidelines did not form part of an assessment by the officer in relation to Permit 894/03 although it was noted in the officer's report that "car parking must be to the front of the site due to the type of use proposed"].

54 As discussed in the previous Tribunal decision[11], the design emphasis in the 2004 Development Plan has shifted from the 2001 Plan and the proposal for restricted retail sales was found to be contrary to the direction now sought:

... the most relevant policies in relation to design considerations are Clause 19.03, Clause 21.12 (Image) and Clause 22.15. As called upon by Clauses 21.12 and 22.15, there are design guidelines included in both the 2001 and 2004 Structure Plans. On our reading, there is an obvious shift in terms of design outcomes between these Plans that is relevant to the opinions expressed in evidence. The form sought by the earlier Plan is less intensive and is responsive to the stage of the Centre's development with open lot parking. This contrasts with the latter Plan that focuses on a harder and stronger urban form with less visually dominating parking facilities. That change seems related to the objective to facilitate the transition from suburban to urban and also appears linked to the type of land use that has been sought to be encouraged in the 2004 Plan for Precinct F in the form of office and residential uses in a multi-level structures.

It follows that we find that the proposal does not meet the design outcome of the 2004 Plan but is more consistent with the outcome sought by the 2001 Plan. The layout and form of the proposed development reflects the typical arrangement for the type of facility proposed and satisfies many of the design objectives of the 2001 Plan such as landscaped setbacks. It may not be of a high quality in the terms sought by Clause 19.03, but would be serviceable for the use proposed.

55 Similarly, I am of the view that the proposal before me would represent a departure from the 2004 Development Plan and would not be generally in accordance with the Plan. The current direction is about "scaling up" (using my words) not reflecting existing lower density forms. Mr Townshend sought to distinguish parking around the review site for the display of used and new cars as the product associated with the business, contrasting with parking provided for customers/staff but I am not persuaded that leads to a conclusion that the design outcome for this site is generally in accordance with the Plan. I am also not persuaded that the guidelines are sought to be implemented progressively so that it is unnecessary to "make a token effort to comply with the guidelines" or that bringing a building to the street frontage "is premature" as submitted by Mr Townshend. Instead, the Scheme requires that a proposal be generally in accordance with the Development Plan and it is plain that the proposed development is not generally in accordance with the Guidelines and the outcomes they seek to achieve. The Guidelines do not advocate or provide for staging of the implementation of the design philosophy.

56 Further, I am not persuaded to conclude that the proposal is acceptable because it adjoins other car sales yards and existing easements will limit the potential to achieve a hard edge on land to the immediate north-west.

57 The proposal does not meet the specific outcomes for the Precinct and I am not persuaded that the proposal achieves "greater design merit". Nothing else presented in submissions or evidence persuades me that the proposed development, in its entirety, is acceptable in terms of the 2004 Plan.

58 For the above reasons, I find that the proposal is not generally in accordance with the 2004 Development Plan particularly in terms of development outcomes. It follows that a permit can not issue. If the proposal is to be found to be acceptable it must adopt a different design response that accords with the scaling up and hard built form sought. That may have less land-take which, in turn, may reduce the potential for land use objectives of the 2004 Development Plan to be undermined.

Is the Proposal Acceptable in terms of the 2004 Structure Plan?

59 I have considered the proposal in terms of the Council's approved 2004 Structure Plan for the activity centre which is substantially the same as the 2004 Development Plan for the purposes of the matters in issue in this Application. The Structure Plan is a document to which I give weight pursuant to Section 60(1)(b)(ii) of the Act as, among several reasons, it stands as the latest in a series of strategic planning studies and plans for the Activity Centre of the type sought by Melbourne 2030 and Clause 14.

60 My findings are the same as above, that is, the proposal has the potential to undermine the land use and design outcomes sought for the eastern half of Precinct F and, as a consequence, the Activity centre more broadly. The development outcome is particularly at odds with the direction being pursued. In this context, the following remarks of the Tribunal are apt[12]:

We consider that implementation of the Doncaster Hill Strategy will be influenced by the resolve of the responsible authority to reject proposals that do not accord with the strategy. By doing this it will establish expectations in the market place that certain options are not available and send a clear message to the market about the strength of policy in this location. It will establish a degree of certainty about the planning directions for this activity centre....

We agree with the comments in the Mitcham Towers case, which were quoted by Mr Gobbo, that major development decisions are likely to be in the hands of private sector and that no structure plan can force development opportunities to be taken up. However, as we have noted earlier, establishing some certainty about what will or will not be accepted within a policy framework can have the effect of challenging the development industry to think differently about what is 'feasible'.

Provisions of Clauses 32.02, 52.14 and Relevant Policies

61 The provisions of Clause 52.14 set out the detailed requirements for motor vehicle sales. The Application requires a permit for variation from two of the requirements - the size of office component as it would be larger than 19 square metres and the inclusion of a repairs workshop. The Council did not challenge either. Mr Borelli's and Ms Hansen's evidence was that both aspects were acceptable. I accept their evidence and conclude that the proposal is acceptable in terms of the provisions of Clause 52.14.

62 The decision guidelines of the Business 2 Zone require consideration of the relevant state and local policies as well as other matters such as car parking, streetscape, and the movement of pedestrians and cyclists. For reasons that I have already set out, the proposal could meet some state and local policies but fails against the main aims of the 2004 Structure Plan and 2004 Development Plan. I expect that pedestrians could be better provided for, but that could readily be addressed, and it is the overall form and layout of the development that are the key failings. The proposal was not contested by the Council on reasons relating to the provision of car parking.

63 For the above reasons, I will affirm the decision made by the Responsible Authority and I will direct that no permit issue.

Appendix - Extract from 2004 Development Plan[13]

Precinct Guidelines : Business Park and Living (Eastern half)

Office, restaurant, business/personal services, child care, gym, hotel, residential, very limited retail (small neighbourhood centre, 4,000m2 and no restricted retail).

Ø

Restaurants, business/personal services, limited retial developed around a 'town centre' - urban density.

Ø

Create corporate boulevards.

Ø

Create corporate address to highway.

Ø

Create finer grain road network.

Ø

Create Eastern Town Centre in mixed-use zone that embraces a variety of uses, ie. Office, school, motor vehicle sales, accommodation, service shops, restaurants/cafes, housing etc.

Ø

Eastern Town Centre to focus on a range of uses coming together.

Ø

Mixed-use buildings with multi-levels encouraged around Eastern Town Centre.

Ø

Eastern town Centre to be a focus for bus transport facilities.

Ø

Eastern Town Centre to be complimented by mixed-use street leading to Town Centre, including shops, cafes and support services for people working and using Eastern Precincts.

Ø

Potential for small retail node at the eastern town centre to be linked to the delivery of office development.

Ø

Provide major signalised intersection as access to precinct and good public transport access and connections to school site.

Ø

Buildings to be encouraged up to building alignment of street with no setbacks.

Ø

Car parking preferably located behind buildings or at least beside buildings with future provision to build deck car parking behind.

Ø

Avoid individual tenant signage identity to freeway. Provide overall precinct branding identity to freeway via co-ordinated structure.

Ø

Provide pedestrian connections through precinct to central open space. Avoid roundabouts and install street crossings. Bus stops to be designed into street system not added on.

Ø

Encourage residential uses and positively create amenity within precinct for reasons of 'liveability'.

Ø

Allow for finer grain road network and an intensification of activity.

[2] Lowther Hall Anglican Grammar School v Mooney Valley City Council.

[3] Page 24 of Development Plan under the heading Floorpsace Allocations.

[4] When assessing the proposal under the then approved Development Plan (2001) the proposal was incorrectly assessed as within Precinct 4 Fountain Gate Commercial, rather than Precinct 5 Berwick Business Park.

[5] Fountain Gate - Narre Warren District Centre Structure Plan Adopted by the City of Casey on 18 September 2001 at page 17.

[12] Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445 at paragraphs 71 & 109-110.

[13] Extract from page 20 of the Development Plan dated 6 July 2004