1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the statement of grounds lodged by Roy Costa Planning and Development is amended by including the following persons as the respondents:

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

S0 of 5, S1 of 5, S2 of 5, S3 of 5, S4 of 5 and S5 of 5 and 'Stormwater and Site Access Concept drawing 1 Revision C

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by modifying the description of the use and development for which permission is sought to read:
   • Use of the land for the purpose of a Service Station (a section 2 land use) in the Farming Zone (clause 35.07-1);
   • Development of land for the purpose of a Service Station 9a section 2 land use) in the farming Zone including buildings and works within 100m of a Road Zone (clause 35.07-4);

• Vary requirements of Clause 52.12, and
• Create and alter access of a Road Zone (clause 52.29).

1. In application P1227/2016 the decision of the responsible authority is set aside.
2. In planning permit application no. 005.00000284.015 no permit is granted.

Mr Warwick Fisher, planning consultant, Fisher Planning.

• Mr John Glossop, planning consultant, Glossop Town Planning Pty Ltd.
• Mr Ross Leo, acoustic consultant, Marshall Day Acoustics.

Use and development of the land for a service station for cars and trucks. The service station provides for refuelling and parking areas for passenger vehicles and trucks. The service station incorporates a café facility with indoor and outdoor seating and the sale of convenience goods. Some of the existing vines on the land will be retained as a buffer to neighbouring properties.

Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

Design and Development Overlay - Schedule 8 (DDO8)

Clause 35.07-4: to construct or carry out buildings and works associated with a use in Section 2 of Clause 35.07-1;

Clause 35.07-4: to construct a building within 50 metres of a Road Zone Category 1;

Clause 52.12: to vary the requirements at Clause 52.12-1 for Service Station; and

Clause 52.29: to create and alter access to a road in a Road Zone Category 1.

Clauses 10, 11, 11.05, 13, 13.04, 14, 14.01, 15, 15.02, 17, 17.01, 18, 18.02, 18.04, 21.02, 21.03, 21.04, 21.05, 21.06, 21.08, 21.09, 21.10, 52.12, 52.29, 65.

The subject land forms part of a single lot with an area of about 10.6 hectares. The lot is irregular in shape with its widest frontage of about 258 metres to the southwest side of Seventeeth Street and a second narrower frontage of about 96 metres to the northwest side of Benetook Avenue. The land is partly used for vines for grape production; a rural industry which provides for a large shed, office and storage of machinery as well as a dwelling located adjacent to Benetook Avenue.

The site of the proposed service station is to the north east of the rural industry, with frontage to Seventeenth Street. It is rectangular, with an area measuring almost 3 hectares.

A number of rural lifestyle sized lots containing dwellings exist to the southwest of the service station site with rural land uses, mainly supporting vines for grape production surrounding the site.

Contextually, the land is within the Mildura's Older Irrigation Area (MOIA), southwest of the town centre and about 3 kilometres from Mildura Airport.

Seventeenth Street is two lane highway and designated B double route.

1. Mr and Mrs Englefield lodged an application for planning permit with Mildura Rural City Council seeking permission to use and develop part of a 10.6 hectare lot which they occupy for the purpose of a service station. Although most of the land will continue to be used for grape production and a rural industry, the proposed service station occupies an area of just under 3 hectares adjacent to the land's Seventeenth Street frontage. The service station provides for refuelling and parking areas for both passenger vehicles and large trucks. In addition to the fuel sales console area, the main building provides areas for the sale a convenience goods and a café providing both indoor and outdoor seating.
2. Despite receiving a report from its officers recommending that the application be refused, the Council decided to issue a Notice of Decision to Grant a Permit for the proposed use and development. While accepting that the proposal will result in some agricultural land being lost to production, the Council says that the proposal provides for a service station facility that will work toward reinforcing Benetook Avenue's strategic role as a by-pass route that serves to take heavy vehicles off Deakin Avenue which traverses residential areas. The Council says that the proposal involves a use and development that is acceptable within a rural area and it is satisfied that subject to appropriate permit conditions, that there will not be unreasonable impacts on the amenity of the area.
3. Mr Keen and a number of other objectors have lodged a joint application with the Tribunal to review the Council's decision. In making their application, the joint applicants submit that the proposed use and development is inappropriate for the land and the locality. In particular, they say that the proposed use is not properly described as a service station but involves other standalone uses that are prohibited in the Farming Zone (FZ). They also say that the proposed use and development is not supported by the purpose of the zone or planning policy as it would result in the permanent loss of productive agricultural land. They raise also concerns about the impact on their amenity including noise, traffic and the appearance of the development proposed. They request that I set aside the Council's decision and direct that no permit be issued.
4. Similar to the Council's position, Mr and Mrs Englefield submit that the proposal is appropriate for the land having regard to the context. They say that the amount of land lost to agriculture is relatively minor. While accepting that policy provides support for the retention of agricultural land for primary production, nonetheless they rely on other aspects of policy and recent strategic work which support the by-pass function of Benetook Avenue. Like the Council, they submit that the proposed use and development will not result in unreasonable impacts on the amenity of the area.
5. The Council and Mr and Mrs Englefield maintain that the proposal is properly described as a service station, a use which is allowed with a permit within the FZ.

1. Having considered the submissions and evidence, the details of the proposal and the relevant matters under the planning scheme and legislation, the key issues to be determined in this case are:

1. Is the proposed use a service station? 2. Is the loss of productive agricultural land appropriate?

1. Will the proposal result in unacceptable impacts on the amenity of neighbouring residential uses?

1. The joint applicants submit that a permit cannot be granted for the proposal because it incorporates separate and distinct land uses which are prohibited in the FZ. While they accept that a service station is a section 2 or permit required use in the FZ, they say that the café and convenience shop components are substantial and of sufficient size to be considered land uses in their own right.
2. In particular, they point to the relatively small size of the fuel sales console area within the main building compared to the much larger areas allocated to the café with its associated indoor and outdoor seating and the convenience shop area which, they say, is akin to a small supermarket. In support of this proposition, they refer to my decision in Apco Service Stations v Casey CC [2] in which I found that the convenience retail component associated with a proposed service station in that case was excessive having regard to the definition of 'convenience shop' at that time and the rural context away from a planned activity centre. In that case, the proposal provided an area of about 400 square metres for the sale of convenience goods. In this case, however, the area is much smaller at about 170 square metres.[3]
3. Under the provisions of the FZ, service station is not specifically listed in any section of the land use table at Clause 35.7-1. As such it is a "permit required" use falling within Section 2 of the land use table.
4. "Service Station" is a land use term defined as follows at Clause 74 of the Mildura Planning Scheme:

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

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

e) installing of motor vehicle accessories or parts.

1. It is clear that the proposed service station includes several of the above activities. Most of the 3 hectare site will be set aside for the dispending of fuel from bowsers with associated circulation space, although some existing vines will be retained. I anticipate that within the main building, motor vehicle parts and accessories as well as the selling of food, drinks and other convenience goods will occur.
2. The question here is whether the size of the convenience goods display area and seating associated with the café are substantial enough to comprise separate uses in their own right. On this point, the applicant and the Council refer to a relatively recent decision of the Tribunal in RW and MM Anderson Nominees Pty v Greater Geelong CC.[4] In that case, the Tribunal considered a proposal for a service station providing for 16 pumps, a "service station" building with a floor area of 700 square metres[5] and café providing "...47 seats internally and a covered external area".[6] Relevantly, the Tribunal found:

There was initially some concern that the provision of convenience goods was a separate use in its own right rather than ancillary to the service station use, and was therefore prohibited by the zone controls. However, it was correctly pointed out by Mr Morris QC, who appeared on behalf of the permit applicant, that the definition of "service station" in the Greater Geelong Planning Scheme includes "land used to sell motor vehicle fuel from bowsers ... and may include the selling of food, drinks and other convenience goods". The specific inclusion of the convenience goods part of the proposal in the land use definition means that the question of whether this part of the proposal is ancillary or otherwise does not arise.[7]

1. Consistent with the above, I conclude that the proposal can be properly described as a "service station" as the definition specifically contemplates the selling of food, drinks and other convenience goods.

IS THE LOSS OF PRODUCTIVE AGRICULTURAL LAND APPROPRIATE?

1. A fundamental question in this case is whether it is appropriate to give over productive agricultural land for a service station use. The question arises because of the tension created by policies which direct themselves to different outcomes. Specifically, there is unequivocal policy support for the retention of the highly productive soils in Mildura's irrigation districts for agricultural use on the one hand and, as noted by Mr Glossop in his evidence, policies supporting the establishment of a bypass route to direct heavy truck traffic away from Mildura's urban areas create tension in the outcomes sought by policy. As contemplated by Clause 10.04 of the planning scheme, the task here is to:

"...endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations".

1. In his evidence, Mr Glossop's analyses the varies policies and strategies which now form part of the planning scheme, including those introduced by Amendments C75 and 89, which have been approved subsequent to the Council's determination of the planning application. As Mr Glossop notes, these amendments seek to implement the Mildura South Urban Design Plan 2014, the Mildura Housing and Settlement Strategy 2013, the findings of the Review of Planning Controls for the Mildura Older Irrigated Areas 2014 and some recommendations of the Mildura Planning Scheme Review Report 2014.
2. Quite correctly, Mr Glossop identifies four key policy themes to consider, namely, the establishment of a bypass route around Mildura, the protection of Mildura Airport, settlement strategies for growth including the setting of growth boundaries and the protection of agricultural land.
3. In relation to the establishment of the bypass route, Benetook Avenue is identified as the major heavy vehicle bypass route around the township of Mildura.[8] To facilitate this, strategies at Clauses 21.07-1 and 21.10 specifically discourage the siting of sensitive land uses, such as residential, along the bypass route. The establishment of the bypass responds to the likely increase in truck volumes envisaged as a result of regional development. These policies are underpinned by state policy which seek the creation of a safe and sustainable transport system by integrating land use and transport[9] and to "locate and design of new transport routes and adjoining land uses to minimise residential communities and their amenity".[10]
4. Policy also clearly supports the protection of Mildura Airport, a piece of infrastructure that provides access to local and regional areas enhancing economic development potential. At the outset it is clear that the proposed land use will not have any marked impact on the continued use and development of Mildura Airport. A service station is a robust use and not sensitive to noise impacts from aircraft landing or departing from the airport.
5. In relation to settlement patterns and the setting of growth boundaries, all parties referred to the Main Urban Area Framework Plan at Clause 21.10 of the planning scheme. The framework plan clearly contemplates that Mildura's residential areas will expand to the southwest and east. Seventeenth Street is the southwest urban growth boundary. While industrial use is envisaged on northeast side of Seventeenth Street, the area to the southwest within which the subject site lies, remains rural.
6. Finally, there is the plethora of policies which clearly support the protection of highly productive agricultural land. A clear objective at Clause 14.01-1 is:

To protect productive farmland which is of strategic significance in the local or regional context.

Permanent removal of productive agricultural land from the State's agricultural base must not be undertaken without consideration of its economic importance for the agricultural production and processing sectors.

1. In relation to the importance of agricultural land to Mildura's economy, the Municipal Strategic Statement (MSS) says:

Mildura Rural City is nationally and internationally significant in terms of horticultural output. The local economy is mainly driven by horticultural industries and their value added activities such as packaging and processing.[11]

Significant agriculture and horticulture sectors generate economic activity in other sectors such as manufacturing, wholesale trade, transport and storage. The protection of agricultural and horticultural land is important, particularly in the Mildura Older Irrigated Areas (MOIA) and newer irrigated areas (NIA).[12]

1. At Clause 21.02-1 the MSS goes on to identify the following :key influences and issues":

The critical importance of protecting agricultural land for agricultural purposes, in order to support the economic base of the municipality.

The protection of irrigated horticultural land for agriculture is important, particularly in the Mildura Older Irrigated Areas (MOIA) and Newer Irrigated Area (NIA)

1. On reviewing Mr Glossop's evidence, it seems to me that the two key policies to be balanced are those which call for the bypass route and those which call for the protection of agricultural land. It is his view that when balanced, the small loss of agricultural land is off set by the provision of a service station which would encourage heavy vehicles to use the bypass route in preference to routes such as Deakin Avenue which are located amidst established urban areas.
2. I agree with submissions presented on behalf of the Mr and Mrs Englefield that with the anticipated increase in heavy traffic, it would be desirable that such traffic be directed away from established routes such as Deakin Avenue which provide frontage for sensitive land uses including residential and schools.
3. However, as a matter of orderly planning, I have not been persuaded that the benefits derived from the establishment of a service station on this site outweigh the clear and unequivocal policy imperative for agricultural land to be protected.
4. It is easy to dismiss the loss of about 1.5 hectares of productive land[13], currently under vines, as relatively minor, perhaps barely noticeable. But the difficulty here is that while the loss of small amounts of productive land may seem minor, perhaps even trivial to some, it is the cumulative effect of continually nibbling away at the agricultural land base in small chunks and the consequences which should drive decision making.
5. The locality in which the site lies is case in point. What is also clear that, over time, productive land has already been lost on that part of the parent property which is now given over to the rural industry use. The small rural lifestyle lots adjacent to the land are another example of agricultural land being effectively lost to primary production. As noted in the submissions presented for the applicants, various non-agricultural uses, both commercial and residential, are sprinkled along the main roads. All these have, bit by bit, eaten away at the agricultural land base.
6. It is my observation that Mildura's agricultural land base, particularly in the MOIA, is very fragmented, not just because of the intrusion of small lot subdivisions sought to established rural lifestyle living properties, but by the very nature of the small 4 hectare lots often found. The fragmented and small size of properties makes them vulnerable as viable parcels for agricultural use. This is because with the continued introduction of other land uses brings with it an inflationary pressure due to heightened expectations as to how land in the area can be used. The establishment of a service station on this site will, in all likelihood, bring with it an expectation that other nearby land can also be used and developed for non-agricultural uses related to the bypass function. This will add pressure for the continued replacement of productive agricultural land with other uses. This is clearly a dis-benefit associated with this proposal.
7. A further factor to consider is that, at best, the establishment of a service station on the site only provides an incentive for trucks to use the bypass route in favour of existing routes. Heavy vehicles are not compelled to use the bypass route. I think this waters down the actual benefit derived from the service station use.
8. I accept that the proposed service station will provide local jobs. But in my view, the contribution to local employment pales into insignificance compared to the potential damage to the economic base caused by the approval of use and development proposals which eat away at what is likely to be this region's most important economic asset, productive agricultural land.
9. I also accept the findings of the Tribunal in Anderson that a service station is neither an urban or non-urban use.[14] However, whether or not such use is appropriate will depend on the circumstances at hand.
10. My conclusion is that the benefit derived from the protection of agricultural land outweigh the benefit derived from the establishment of a service station on this site. As planning policy currently stands, the strong unequivocal support for the protection of agricultural land from small incremental loss, outweighs the benefit derived from the potentially incidental use of a service station by some heavy vehicles.
11. This finding alone warrants refusal of the permit application.

WILL THE PROPOSAL RESULT IN UNACCEPTABLE IMPACTS ON THE AMENITY OF NEIGHBOURING RESIDENTIAL USES?

1. The joint applicants also contend that the proposal will result in unreasonable impacts on the amenity of the adjacent residential properties. They submit that the various activities and plant equipment will cause unreasonable noise. They also raise specific concerns about the visual intrusion caused by a service station of this type and size on the rural character of the area. They also claim there will be unacceptable traffic impacts. I set out my findings on each of these matters below.

1. The joint applicants submit that the proposal will result in unreasonable noise impacts on the amenity of the adjacent residential properties to the southeast on Benetook Avenue. They raise concerns about the impact of vehicles moving about on the site, noise from customers when outside their cars and buildings as well as noise from plant.
2. On his assessment, Mr Leo advises that when assessed against the requirements of the EPA's Noise from Industry in Regional Victoria (NIRV), the relevant standard in this case, managerial and noise control measures will be required for the subject site. These measures include the construction of a 2.4 metre high acoustic fence along the common boundary with neighbouring residential properties on Benetook Avenue. Further to this, Mr Leo recommends limitations on fuel deliveries and waste collection to what I would describe as daytime hours.
3. With the measures recommended by Mr Leo, I am satisfied that noise associated with the operation of the proposed service station would comply with the requirements of the NIRV.
4. In the event that there is a change to the residential uses, such as a second storey extension to a dwelling, it may be necessary for further noise mitigation measures to be implemented. These could include screening around plant and equipment.
5. I am nonetheless not persuaded that one of the measures recommended by Mr Leo, the acoustic fence, is an acceptable treatment from a visual amenity viewpoint. In this regard, Mr Leo considers it necessary to construct a 2.4 metre high acoustic fence along the entire length of the common boundary with residential neighbours. Such fence would have an overall length of about 170 metres at the direct interface with neighbouring proeprties.
6. In my view, such a fence would be visually intrusive and out of keeping with the fence type that can reasonably be anticipated within a rural setting. The existing boundary fence treatment, while solid, is lower and allows for views of vines within the subject land.
7. While grape vines are proposed to be retained within the "buffer" area between the service station and the residential properties, the open outlook from the rear open spaces of those residential properties would be unreasonably impeded. That is not to say that the residents within rural areas should not anticipate structures associated with land uses that are appropriate to the rural context. They should, in some instances, anticipate views of large sheds, machinery and other infrastructure that is typically found in rural areas. However, the height and length of the fence at the interface with residential properties acts as not only a noise barrier, but also a visual barrier that is out of place.
8. During the course of the hearing I explored the possibility of moving the acoustic fence away from the common boundary. Mr Leo's view was that the effectiveness of the fence as a noise barrier would be eroded if it was moved more than 10 metres. Further, the repositioning of the fence would also result in part of the buffer area being split, with vines of both sides of the fence. Such an arrangement would probably present management difficulties.
9. While I am able to conclude that it is possible for physical and management measures to be taken to mitigate noise to achieve compliance with the NIRV, I am not satisfied that the design or siting of the acoustic fence would represent an appropriate interface with residential properties.

1. The joint applicants submit that a service station development would be out of keeping with the rural character of the area. They say that the change would not only be brought about by the physical form of the development, but also because of lighting and advertising signs that would inevitably be required.
2. There is some tension here as to reasonable expectations. On the one hand, the establishment of a service station on the subject land would result in a great deal of change to the appearance of the land when viewed from Seventeenth Street. However, change in the appearance of the area should reasonably be expected to facilitate the establishment of appropriate land uses within rural areas. As noted by the Tribunal in Anderson, a service station is a use that is required in either an urban or non-urban environment. As such, it must be anticipated that a service station may be appropriately located within a rural setting.
3. However, a service station must respond to the rural setting in a sensitive way. The buildings should be set well back from the street frontage, meaningful landscaping provided, signs should be sensitively positioned and lighting suitably baffled. In this case, the buildings are well setback from Seventeenth Street and large areas of grape vines are to be retained on either side of the service station. Opportunity to provide further landscaping exists. Signage does not form part of this application while lighting details are not provided. However, I would expect that it would be possible to provide signage and lighting that is appropriate to the context.
4. The neighbouring residential properties are more than 100 metres from the edge of the service station. This is a considerable distance.
5. In general terms, had the proposed use of the land been found to be acceptable, with the provision of further detail, it is likely that the built form would be acceptable given the rural highway context of the land.

1. Concerns were also raised about traffic impacts, however, no traffic evidence was presented to show that the proposal would result in unacceptable impacts.
2. I think these concerns are somewhat misguided having regard to the context. The site and neighbouring residential properties front onto roads which are intended to form a significant bypass route around Mildura. It is anticipated that heavy vehicle traffic will grow in this locality.
3. VicRoads, a referral authority in this case, has considered the proposal, including the revised access arrangements and finds them to be acceptable.
4. On the material before me, I find the traffic impacts acceptable.

1. The proposal is properly described as a service station and discretion exists for a permit to be granted for such use in the FZ. I acknowledge that local policy within the planning scheme specifically identifies Benetook Avenue as a bypass route for heavy vehicle traffic. There are good reasons to support the movement of heavy traffic away from more sensitive routes such as Deakin Avenue. However, the location of a service station on this site can only serve as an incentive for heavy vehicles to bypass Mildura. It is unclear as to the extent to which there will be a benefit to amenity and community safety in this regard.
2. Planning policy also clearly and unequivocally calls for the protection of Mildura's productive agricultural land. The overall loss of productive land is relatively small. However, the continued incremental loss of agricultural land is the problem that planning policy is seeking to prevent.
3. I conclude that the loss of productive agricultural land is not appropriate having regard to the circumstances of this case.
4. Accordingly, I will set aside the Council's decision. No permit is granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] [2002] VCAT 189

[3] Refer Exhibit A13 - Mr Fisher's assessment of the breakdown of areas for different activities with details amplified by oral submissions in response to questions from the Tribunal.

[4] [2016] VCAT 1904.

[8] See Clause 21.03-1 Mildura Planning Scheme under 'infrastructure'

[13] This is my estimate taking into account that some vines are to be retained.

[14] RW and MM Anderson Nominees Pty v Greater Geelong CC [2016] VCAT 1904 at paragraph 29