Kennington Village Pty Ltd v Greater Bendigo CC [2010] VCAT 1821

1. As there was no objection by any party, Drawing No. ATP 400-J by the Buchan Group (containing advertising signage) is substituted for Drawing No. ATP 400-I.
2. Pursuant to the Planning and Environment Act 1987, s. 87A(1), the Tribunal refuses to amend planning permit no. DC/785/2007.
3. Costs reserved.

Mr Jeremy Gobbo QC with Mr Peter O'Farrell of counsel instructed by Norton Rose Solicitors. Mr Gobbo called Mr Andrew Biacsi, Town Planner, Mr Russell Symons Traffic Engineer and Mr John Patrick, Landscape Architect to give evidence.

Mr Egils Stokans, solicitor of Russell Kennedy. Mr Stokans called Mr Craig Czarny, Urban Designer to give evidence.

Mr Lloyd Rowe, Statutory Planning Officer and Civil Engineer appeared on behalf of VicRoads - Northern Region.

Mr Greg Tobin, solicitor of Harwood Andrews Lawyers appeared on behalf of Owners Corporation SP 34327X (Strath Village Shopping Centre) and Mr Andrew Ong, Proprietor of the Anchor Supermarket.

Mr Michael Markowitz, solicitor of Rigby Cooke appeared on behalf of McDonalds Aust Ltd.

Ms C Spicer appeared in person for the Spicers and for Bellara Park Pty Ltd.

s.87A permit amendment to remove part of the shopping centre from the Condon Street and Marnie Road frontages and substitute with an undesignated development pad and relocated convenience food outlet.

Application under Section 87A of the Planning and Environment Act 1987.

Business 1 Zone with no overlays. Condon Street is in a Road Zone 1.

Clauses 11, 12, 14, 15.01, 15.08, 15.10, 15.11, 17.01, 17.02, 18.02, 19.03, 21, 22.12, 22.16, 52.07 and 65.

The site is on the south-west corner of Condon Street and Marnie Road, Kennington, approximately 2.4 km from the Bendigo CBD. It has an approximate area of 26,185 square metres with a frontage of 101.77 metres to Condon Street and 120.91 metres to Marnie Road. It is bounded by the Strath Village shopping complex and McDonalds Restaurant to the west, Strath Haven Retirement Village across Condon Street to the north, residentially zoned land to the south (most immediately Bolton Drive), the Reservoir Hotel to the east and lies diagonally opposite the Strath Hill Shopping Centre to the north west.

Strath Hill and Strath Village shopping centres lie on the Condon Street/Edwards Road intersection. Together with the subject site, these form the Strathdale Precinct.

7 November 2010 unaccompanied by representatives of the parties.

Kennington Village Pty Ltd v Greater Bendigo CC [2009] VCAT 299 (26 February 2009) per Bennett and Bensz MM.

1. This case concerns what council sees as a developer thwarting its freestanding shopping centre urban design policy. The policy seeks to provide an active street frontage to a new neighbourhood shopping centre in regional Bendigo, contrary to current planning and urban design thinking.
2. One month after obtaining endorsed plans for its new Kennington Village shopping centre, the developer has lodged this s.87A application to amend its permit in order to enhance and create a greater degree of transparency into the site from its Condon Street/Marnie Road intersection.
3. The plan amendments remove the restaurant and office complex from the street frontages; relocate the convenience restaurant from the Condon Street frontage to the Marnie Road frontage; increase the supermarket floor area from 3800m² to 4200m², provide for a future development pad[2] facing Condon Street; reduce the size of the plaza; increase the visual exposure of the car park to Condon Street; increase the size of the community facility from 100m² to 133m² and reconfigure car parking.
4. There are three principal urban design issues concerning this proposal, the first two of which have reached a consent position between council, the developer and all but one party[3]:
   1. Its integration with abutting Strath Village shopping centre via pedestrian connectivity. This links the older style introverted shopping centres with new centres[4];
   2. The increase in size of its supermarket and the relationship of the supermarket and Mini-Major[5] with dwellings in Bolton Drive to the rear;
   3. Provision of an active street frontage to Condon Street and Marnie Road.
5. The above consent position, as well as a previous February 2009 consent order, has been reached after extensive and costly negotiations between all the key players in and around Strath Village Shopping Centre including McDonalds abutting to the west and residents to the south.
6. The third issue remains to be decided because the developer wishes to delete the hard edge more active street frontage demonstrated on its endorsed plans. The developer submits it has no prospective tenants, (restaurant, office or medical) that can already 'pay their way' or pre-commit for the street edge buildings and does not wish to build speculatively.
7. The issue concerns the difference between council's urban design policy and the developer's practical approach.
8. The Tribunal must decide whether the permit should be amended and, if so, what conditions should be applied. Having conducted a site inspection of shopping centres to which I was directed, considered all submissions and evidence presented with regard to the applicable policies and provisions of the Greater Bendigo Planning Scheme, I have decided to disallow the plans amendment. My reasons follow.

Endorsed plans versus s.87A amending plans

1. The 10 June 2010 endorsed plans show:
   1. a big box supermarket and mini-major to the rear concealed by a centrally located external 'sleeve' of shops;
   2. the Condon Street frontage occupied by a convenience restaurant (abutting McDonalds in Strath Village to its west), a gap occupied by car parking allowing views to the big box and shops sleeve, a small Square and an abutting restaurant;
   3. the Marnie Road frontage occupied by the balance of the restaurant, offices and more car parking.
2. The June 2010 amending plans show:
   1. The same big box supermarket and mini-major to the rear concealed by a centrally located external 'sleeve' of shops;
   2. The convenience restaurant relocated to the Marnie Road frontage with its loading bay facing Condon Street;
   3. The convenience restaurant replaced with a 'Future Development Pad'[6] on Condon Street;
   4. The 'Square' remaining next to the bus stop surrounded by a wider and large gap of car parking, softened by landscaping, between the Future Development Pad and the convenience restaurant;
   5. the Marnie Road frontage occupied by the convenience restaurant and more car parking.

1. After rezoning the land from its previous school zone to Business 1, the first[7] permit application was made 28 September 2007 for approximately 12,660m² of retail space, 1,045m² of office space, 887m² of food and drink premises and 584 car parks. Council opposed this application as contrary to its strategic hierarchy of shopping centres in Bendigo and contrary to its Commercial Land Strategy, a reference document in the Greater Geelong Planning Scheme.
2. In December 2008, the applicant submitted amending plans showing active street frontage to Condon and Marnie Roads with the following approximate size reductions:
   • Double storey to single storey;
   • 12,660 to 6,460m² of retail space[8];
   • 1,045 to 700m² of office space[9];
   • 887 to 870m² of food and drink premises[10]
   • 363 open car spaces.
3. On 26 February 2009, after converting a six day VCAT hearing into a two day negotiation between all the parties, the following critical issues were resolved by consent:
   1. A slightly relocated hard edge, active street frontage to Condon Street;
   2. The integration of the review site with the abutting Strath Village Shopping Centre; and
   3. Residents' amenity concerns.
4. The result of the 2009 mediation and VCAT consent order was a planning permit condition referencing a Concept Plan Version 4 dated 24 February 2009. The Concept Plan v 4 outlined the agreed position arrived at between the parties on a number of matters including active built form edges to Condon and Marnie Streets. Mr Czarny, Urban Design Consultant for council was the author of that Concept Plan Version 4.
5. The Tribunal was told that the February 2009 debate was only over how much leeway there was to shift the active street front along the Condon Street frontage away from its Marnie Road corner. That was the difference in Concept Plan Version 4 between the underlying colour and the thick black outline over it to the Condon Street frontage.

1. Council's 2004 Commercial Land Strategy, a reference document in its Planning Scheme, calls for the formulation of a structure plan or development controls to promote development of the Strath Village precinct with emphasis on incorporating non-retail activities and improving its functionality and amenity[11].
2. On 16 July 2008, after receiving the first super size planning application from the developer, the responsible authority resolved to commence the preparation of a Structure Plan for the Strathdale neighbourhood village precinct.
3. On 4 September 2008 the responsible authority requested interim planning controls requiring a Structure Plan prior to any major development applications in the Strath Village precinct. This was refused by the Minister for Planning on 15 January 2009 because the responsible authority had not undertaken its strategic work.
4. February 2009 saw the issue of a planning permit for the shopping centre, with a permit condition referencing a Concept Plan Version 4 dated 24 February 2009. The Concept Plan v 4 outlined the agreed position arrived at between the parties at VCAT on a number of matters including active built form edges to Condon and Marnie Streets.
5. In respect of the subject site, the Strathdale Commercial Precinct Structure Plan ("Structure Plan") took its starting point from the Concept Plan v 4 drafted for the February 2009 consent planning permit issued for Kennington Village.
6. Concept Plan v 4 resolves that:
   1. the hard edge to Marnie Road should be shifted towards the main Condon Street frontage;
   2. a 'small Square' sits between the two hard edge Condon Street buildings, spilling cafes and people into this 'Square';
   3. a clear visual opening still remains from the main Condon Street frontage across the car park and through to the supermarket complex to the rear;
   4. car parking is contained centrally within the site rather than at the street edge.
7. The Structure Plan was prepared by Renaissance Consultants after extensive research, which underwent a community consultation[12] with stakeholders including this developer. A Draft Structure Plan went on public exhibition between 16 December 2009 and 19 February 2010 and 42 written submissions were considered by council before the Structure Plan was adopted by council on 16 June 2010. The developer neither opposed nor supported the Structure Plan, but remained silent.
8. On 9 September 2010, after receipt[13] of this s.87A application to amend the endorsed shopping centre plans, council sought another Interim Control[14] from the Minister for Planning to introduce the Structure Plan as a reference document to fill a void in policy in its Planning scheme between its 16 June 2010 adoption of policy and its gazettal into the Scheme after the statutory public exhibition and a Panel process. The Minister has asked council to prepare the wording of the Interim Control.

1. Even though the intersection of Edwards and Condon Streets, with Strath Hill diagonally opposite Strath Village, represents the junction of the Strathdale commercial precinct, the 'Village Core' is to comprise Strath Village with proposed Kennington Village because of the opportunities they can provide as a cohesive unit. Strath Village began its life decades ago as a shopping centre surrounded by a sea of car parking.
2. The Structure Plan sets out the significance of and the objectives for its 'Village Core' because it is the current and likely future retail and commercial hub of the Strathdale Commercial Precinct. The Report lauds[15]:
   1. The greatest opportunities to create a sense of place and an environment for social interaction that could be facilitated through a network of internal and external spaces[16]....this includes opportunity for a town square/s to be externally focussed at the interface between Strath Village and Kennington Village[17];
   2. A direct axial link between the two centres to ensure a high level of interaction between the two centres and effectively they will function as a single shopping precinct;
   3. Commercial development to face Condon Street and Marnie Road;
   4. Open space at Condon Street to be flanked by a restaurant and other activities and linked via a walkway to the Kennington Village core area.
3. The Structure Plan says these components will ensure the functional integration of Strath Village and Kennington Village and will mark the beginning of "a process to reform a disparate suburban freestanding pattern of development towards an urban street based pattern"[18].
4. The Report seeks pedestrian interaction along the Edwards Road spine from Latrobe University north to the Village Core precinct[19]; the opportunity to provide a framework for the transformation of development in the village core to a street-based form[20] and the need to encourage a broader diversity of complementary activities including commercial, professional and community services[21].
5. The above four elements can be divided into two linchpins: the integration of the two shopping centres and the creation of a hard edge with active street frontage to the main street/gateway to the Strathdale Precinct.
6. The developer has retained the first linchpin or reform, i.e. the integration of two shopping centres, probably also because of the pressure from objections by the Strath Village's shopkeepers. But the developer is deleting the second linchpin or reform, i.e. commercial space fronting Condon Street with café/restaurant spilling people into an open square fronting Condon Street linking through to the central box and sleeve of shops via a pedestrian walkway.

1. Pursuant to clause 15 of all Planning Schemes, urban design should create environments that are safe, functional and provide good quality environments with a sense of place and cultural identity. Pursuant to clause 15.01-2, the objective of good urban design is to achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties. To this end, planning must consider the Activity Centre Design Guidelines 2005 in preparing activity centre structure plans and in assessing the design and built form of new development in activity centres.
2. A consistent objective at clause 1.6 of the Guidelines is to intensify active uses along street frontages. A design suggestion is to concentrate shops into continuous active frontages, with minimum setbacks to the street. I quote:

To achieve this, ensure uses are not separated from the footpath by car parking or landscaping. Large free-standing buildings separated by under-utilised landscape space or car parks and single uses with large frontages, should also be discouraged, particularly if the hours of occupation are limited.

1. Objective 1.7 is to connect surrounding residential neighbourhoods to uses in the activity centre by avoiding physical separation by car parking. One design suggestion at 6.1.4 is to reconnect surrounding residential neighbourhoods to the large store by making car parking areas more compact.
2. Objective 6.2 is to ensure large stores address streets with active frontages. One design suggestion at 6.2.1 is to design large stores to address surrounding streets by bringing visual activity to street edges. Another design suggestion at 6.2.2 is to wrap the edges of large stores with smaller scale uses that have active frontages (such as speciality shops, or small offices with frontages to the surrounding streets). The object is to:

Limit blank walls, car parks or service bays from facing streets and public spaces.

Status of and weight to be given to the Structure Plan

1. All parties agreed that the Structure Plan could be taken into account by the Tribunal, pursuant to the Planning and Environment Act 1987, s. 60(1A)(g)[22] with the developer submitting little weight should be given it and council, naturally, submitting the opposite.
2. The developer also submits that as its endorsed development plan preceded the adopted Structure Plan (by six days), it is wrong to use the Structure Plan to guide development on the subject site requiring a hard edge active street front. The developer submits that policy should precede development, and as it evolved the other way around, the Structure Plan should not carry any weight at all nor be used to frustrate the developer's change of plan to delete the active street frontage.
3. With the chicken and egg argument, there is a debate about which came first. In this case there is no debate, but does it matter? From my perspective, both documents were formulated in partnership, with the aim of 'reforming a disparate suburban freestanding pattern of development towards an urban street based pattern'. That aim appears identical to the objectives of the Activity Centre Design Guidelines 2005, which seeks to intensify active uses along street frontages and ensure uses are not separated from the footpath by car parking or landscaping.
4. Even if little weight was given to the Structure Plan at this stage, its theme is akin to current statutory urban design policy written into all planning schemes at the State Planning Policy level. It is therefore worthy of being given weight having been through an extensive consultative process and being in tune with current statewide urban design policy. I turn to the rest of the issues.

Is the removal of an active street frontage acceptable on planning grounds?

1. Given that the Structure Plan urban design objectives for the Strathdale precinct reflect to a large extent the statewide objectives for Activity Centres, the removal of some active and hard edge street frontage to Condon and Marnie Streets appears regressive and counter-intuitive. For all the reasons expressed in both policy documents, I am unable to support the s.87A amendment because it harks back to the old days of a central box (albeit screened with a sleeve of shops) surrounded by a sea of parking softened by landscaping.
2. Notwithstanding that Mr Biasci described current urban design policy as promoting the sleeve of shops shielding a central bland box rather than buildings which form an active and hard edge to the street, that is not how I read the Activity Centre Design Guidelines 2005, parts of which I quoted above.
3. Mr Czarny's concession under cross examination that it may take 25 years before Strath Village has a hard edge to Condon Street and that Strath Hill never will because it is only setback 20-25 metres from Condon Street, does not justify application of a 1980's box surrounded by parking to a new canvas such as Kennington Village, especially when urban design policy clearly dictates the opposite approach.
4. I agree with the developer's counsel and planning consultant that Condon Street will never be a pedestrian environment in the same manner as a traditional 'High Street' shopping strip, given its location in an outlying car dependent area. But as I read the Activity Centre Design Guidelines 2005, that is not the point. The point is to integrate the stand-alone shopping centre into the neighbourhood with hard edge built form, preferably active, rather than separate it with a sea of car parking.
5. Site inspection of Epsom Village[23] and Epsom Road Ascot Vale confirmed the preferred urban design outcome of an active hard edge to the street. Although Epsom Road was half 'hard edge' to the street and half 'car park' to the street, the former clearly appears a better planning outcome. The new KFC outlet being built on the Edwards Road frontage to Strath Village also proves its value in drawing the eye to a more active street frontage than the sea of parking that previously characterised 1980's Strath Village.

Does this application merely amount to a deferral of an active street frontage?

1. Mr Biasci admitted he had no planning policy problem with an active hard street edge, indeed admitting it was a 'worthy aspiration', but that it was not capable of implementation 'in the foreseeable future' being the next 25-30 years[24] because the developer could not get a pre-commitment by a restaurant, medical centre or other office.
2. Mr Biasci submits the street edge buildings should be deleted because they do not undermine or preclude the implementation of council's Structure Plan in 25-30 years time because the car park which replaces it can be built over in the future. Council is sceptical about this approach, submitting 'if it does not happen now, it will never happen'.
3. I was shown the Epsom Village shopping centre development north of Bendigo, with its shopping centre box sleeved by specialty shops, surrounded by fast food outlet/pad sites on the Midland Highway and surrounded by land reserved for future retail to its Howard Street frontage. Parking was contained centrally within this large site in accordance with urban design policy.
4. Interestingly, the Howard Street frontage is not developed with parking[25] in the interim, but lies fallow awaiting Howard Street edge retail development. This was achieved by its gazettal into the Planning Scheme as the 'Epsom Village Centre Precinct Plan' showing 'traditional highway or peripheral retail and business uses addressing both Midland Highway and Howard Street'.
5. The Precinct Plan recognises that peripheral retail would logically follow the first stage of core retail[26] 'as required by the market place'.
6. It is my opinion that council's scepticism and its concern that amending the plans will jeopardise implementation of its urban design policies are justified. Parking and landscaping should not be allowed to substitute, even in the interim, an active hard edge.
7. A consistent objective at clauses 1.6 and 6.2 of the Guidelines is to intensify active uses along street frontages, bringing visual activity to street edges and ensuring uses are not separated from the footpath by car parking or landscaping. Large free-standing buildings separated by under-utilised landscape space or car parks should also be discouraged.
8. The s.87A amendments fundamentally alter one linchpin of the endorsed design, which is to ensure:
   1. Human activity spills out onto Condon Street and into an abutting open Square linked by pedestrian footpath from Condon Street through to the bulk of the new shopping centre located centrally in the site; and
   2. A hard edge form at the main street/gateway connecting through to the box at the rear.
9. Deferring this linchpin with a replacement car park and an unspecified future development which may not spill human activity next to Condon Street would not merely amount to a deferral of an active street frontage but would jeopardise it.

1. The developer also submits that contrary to the Structure Plan[27], a new KFC fast food outlet in Strath Village has recently been granted a planning permit setting its facade 40 metres and its loading/drive-through pad 25 metres back from Condon Street instead of hugging the Condon/Edwards corner as depicted. Its 6.8 m Edwards Road setback does hug Edwards Road.
2. Debate occurred at the hearing as to whether this jeopardises a hard edge street front to Condon Street at in the future. Mr Czarny conceded he would have preferred KFC pushed closer to the Condon/Edwards corner, but it was not his decision.
3. KFC's planning permit does not persuade me to amend Kennington's plans for the following reasons. Firstly, one cannot compare forcing new policy 'to the letter' on a freestanding 1980's shopping centre with this new development canvas. Secondly, the KFC outlet does draw the eye to a far more active hard edge than the parking it replaces, even at its 25 - 40 metre setback. Thirdly, Kennington's plans do more than just shift a convenience restaurant to the secondary road frontage away from Condon Street; they exchange an active hard edge street front with car parking plus an unspecified development pad that may never spill either built form or human activity onto Condon Street.
4. I do not comment on shifting the convenience restaurant to the Marnie Road frontage, because I have heard no evidence as to whether this relocation can still maintain the second linchpin of the design, although I cannot see why not if active hard edge buildings were reshuffled.

Is the traffic solution agreed between most parties acceptable?

1. Ms Griffiths of Windsor Court queried the safety aspects of some of the redesigned vehicular access into and out of the site and within the surrounding road network.
2. Ms Griffiths concerns covered:
   1. the vehicular connectivity through both shopping centres for customers of what would become three fast food outlets in a row when seen from Condon Street;
   2. the need to make two turns through Marnie Road instead of one turn were the fast food outlet to remain fronting Condon Street;
   3. adequate space for retaining angled parking in Marnie Road, a new right hand turn into the relocated fast food outlet in Marnie Road and a through lane in Marnie Road.
3. Mr Symons traffic engineer for the developer gave evidence and has satisfied me that:
   1. Surveys were not relevant for the morning peak since free standing shopping centres open after that peak;
   2. The plans clearly illustrate the required space for retaining angled parking, a new right hand turn into the relocated fast food outlet in Marnie Street and the through lane in Marnie Street;
   3. The provision of new signals at the Marnie/Condon intersection will provide a gap for Right turning vehicles exiting Marnie Street while at the same time providing safe turning movements into the relocated fast food outlet off Condon Street and into Marnie Street;
   4. Vehicular connectivity between the two shopping centres is already indicated on the endorsed plans for this site and the amended proposal will not alter that situation. Furthermore, there will be no danger from vehicles entering Kennington Village internally from Strath Village because there is no uninterrupted through movement. The parking spaces in Kennington Village force vehicles to stop and make a right or left hand turn before they can complete their through route to the third fast food outlet;
   5. It is preferable for customers to access between fast food outlets internally within the two shopping centres rather than have vehicles exit onto the main Condon Street road network and have to re-enter again at a subsequent point in the road network.

1. McDonalds, Strath Village Shopping Centre, Mr Ong, Bellara Park Pty Ltd, the Spicers and VicRoads have resolved some of their issues by a set of consent permit conditions. The new VicRoads conditions are the result of the need in the original permit conditions to undertake a Transport Impact Assessment Report. Having heard and considered the explanation behind the consent position from VicRoads, the Tribunal would be satisfied to adopt their consent conditions if it had agreed to amend the plans.
2. Having heard the evidence from Mr Symons, whilst I would be prepared to relocate the convenience restaurant from the Condon Street frontage to the Marnie Road frontage purely on traffic grounds alone, I have heard no evidence as to whether this can be achieved whilst maintaining the second linchpin of the design.
3. I have been asked to reserve costs by Mr Gobbo QC for the developer, which I have done in the Order.
4. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Greater Bendigo Planning Scheme, together with my site inspections, I disallow the amendment of the plans.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[4] In the future, part of this integration will also involve Strath Village constructing a new infill building and Kennington Village constructing its Stage 1A building shown on the v4 Concept Plan to which I will refer later.

[7] For Bunnings, a supermarket and specialty shops covering the entire site

[8] A 3,800m2 supermarket and 15 specialty shops totalling 1,460m2

[10] 550m2 restaurant and 320m2 convenience restaurant

[22] And not s.60(1A)(h) because it has not completed a formal Amendment process yet.

[23] Although not fully developed by any means

[24] Oral evidence on the second day of the hearing

[25] Which is contained internally in the site in accordance with urban design policy

[26] supermarket and specialty retail in the centre of the site