For Carwoode Pty Ltd Mr Jeremy Gobbo QC and Mr Matthew Townsend of counsel, instructed by Rigby Cooke. They called the following witnesses:

1. By letter dated 28 September 2011, Rigby Cooke, the solicitors for one of the parties, Carwoode Pty Ltd, drew the Tribunal's attention to what they suggested was an error within the Tribunal's order, and submitted that the order should be corrected.
2. Section 119 of the Victorian Civil & Administrative Tribunal Act 1998 provides that the Tribunal may correct an order made by it if the order contains:

1. a clerical mistake; 2. an error arising from an accidental slip or omission;

1. a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

1. a defect of form
2. I am satisfied that a mistake or error has occurred here, comprising a clerical mistake and find it appropriate to authorise a correction of the order.

Application under Section 82B of the Planning and Environment Act 1987 - application to review decision of responsible authority to amend a permit**.** Green Wedge Zone (GWZ1). Environmental Significance Overlay (ESO1). Land Subject to Inundation Overlay (SLIO). Clause 52.17 Native Vegetation. Clause 52.29 Land Adjacent To A Road Zone, Category 1. Clause 52.30 Freeway Service Centres. Clause 63.05 Existing uses. Existing service station, car dealership with associated workshop and showroom, residence and a caretakers dwelling. Construction of access ramps providing direct access onto and off the Princes Freeway. Ambit of discretion. Characterisation of use. Consideration of ancillary use. Existing use rights mot established. State and Local Planning Policy Framework. Zone Purposes. Local policy on Highway development. Appropriate access to a freeway.

Longwarry (Eastbound) Pty Ltd & Longwarry (Westbound) Pty Ltd, Carwoodee Pty Ltd

Longwarry Easbound Pty Ltd & Ors v Cardinia SC & Ors [2011] VCAT 1851

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. The decision of the responsible authority is set aside.
2. Planning permit No P1250 must not be amended.

For Longwarry (Eastbound) Pty. Ltd & Longwarry (Westbound) Pty Ltd

Ms Michelle Quigley SC, instructed by Allen Arthur Robinson. She called the following witness:

• Robert Milner, town planner, 10 Consulting Group

Mr Jeremy Gobbo QC, instructed by Rigby Cooke. He called the following witnesses;

• Henry Turnbull, traffic engineer, Traffix Group
• Damian Iles, town planner, Hansen Partnership Pty Ltd

A written statement of evidence was tendered from Aaron Organ, ecologist, of Ecology & Heritage Partners

Ms Marita Foley of counsel, instructed by Maddocks. She called the following witness:

• Kate Partenio, traffic engineer, GTA Consultants

Mr Paul Connor of counsel, by direct brief. He called the following witnesses:

• Ernie Mensforth, traffic engineer, Cardno Victoria Pty Ltd
• Bruce Clough

Construction of access ramps that will provide for direct access onto and off the Princes Freeway from the site.

Application under Section 82B of the Planning and Environment Act 1987 - application to review decision of responsible authority to amend a permit.

The northern and eastern boundary of Lot 4, along the Ararat Creek, is included in a Public Conservation and Resource Zone.

Clauses 11.04-6 (Green Wedges), 12.01 (Biodiversity), 12.04 (Significant Environments and Landscapes), 13.02 (Flood Plains), 17.01 (Commercial), 18.01 (Integrated Transport), 21.04 (MSS-Strategic Vision), 21.08-3 (MSS Urban Design), 21.09-1 (MSS Environment Issues), 22.04 (LPPF-Highway Development), 52.17 (Native Vegetation), 52.29 (Land Adjacent to a Road Zone Category 1), 52.30 (Freeway Service Centre), 57 (Metropolitan Green Wedge Land), 63 (Existing Uses), 65 (Decision Guidelines)

• Clause 52.17 Remove native vegetation
• Clause 52.29 Create or alter access to land in a Road Zone Category 1

Lot 1 TP 109446P (smaller lot) and Lot 4 LP 505007K (larger lot)

Lot 1 has an area of 1.214 hectares. It is located on the northeast corner of Bessie Creek Road and Princes Highway. It is rectangular in area and developed with a service station, car dealership with associated workshop and showroom, residence and a caretakers dwelling. The service station is a Shell service station and operates 24 hours a day with 21 bowsers selling various fuels. There is also a small shop which sells food and convenience items. There is access to the caretakers dwelling from Bessie Creek Road. Access to the service station and car sales is from the Princes Highway service road on the southern frontage, which separates the subject land from the Princes Freeway. This service road terminates near the east boundary of the site.

Lot 4 is an irregular shaped parcel of land with an area of 59.48 hectares. It is located on the east side of Bessie Creek Road with the southern boundary abutting Princes Highway service road and the remaining boundary along the line of Ararat Creek. The land is generally undeveloped with open paddock areas on the south and west sides of the site with the southern section dissected by an airstrip. The site includes some remnant vegetation in the northeast quadrant and along Ararat Creek.

The Princes Freeway lies to the south of Lots 1 and 4. Access to the Princes Freeway from the subject land is via Bessie Creek Road and the Nar Nar Goon interchange a distance of approximately one kilometre to the west of the subject land.

Longwarry Pty Ltd v Cardinia SC [2008] VCAT 2469

Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334

Red Gem Pty Ltd v Cardinia SC [2008] VCAT 1504

1. The permit applicant, Bruce Clough, wishes to construct access ramps on and off the eastbound lanes of the Princes Freeway to access the service station located on part of the subject land. The council has determined to amend an existing permit[1], which allows use of the land for the service station, to include access from a Road Zone Category 1 and vegetation removal, and to include additional land traversed by the access ramps (Lot 4) within the permit.
2. The referral authority, VicRoads, supports the application. The application is opposed by Longwarry[2] and Carwoode[3]. Longwarry owns and operates a pair of freeway service centres at Longwarry, approximately 18 kilometers east of the subject land. Carwoode owns and operates a pair of freeway service centres at Officer, approximately 17 kilometers west of the subject land.
3. In 2008, Mr Clough was refused a permit for a freeway service centre on the subject land[4]. Longwarry and Carwoode say, in effect, that this application for access from a Road Zone Category 1 is simply a means of getting around the Tribunal's earlier decision to refuse a freeway service centre. They say that the outcome is contrary to State and local planning policy and is contrary to the provisions of Clause 52.30 relating to freeway service centres and the Freeway Service Centres Design Guidelines, May 1997. Carwoode also submits that the purported extension of existing use rights from Lot 1 to Lot 4 is unlawful.
4. The case raises a number of complex issues relating to the characterization of the use of land proposed, existing use rights, traffic and road safety issues, and matters of policy. Ultimately, we have determined that the permit should not be amended for the following reasons.

1. We consider that the first issue to be determined is why a permit is required. This in turn raises a variety of issues such as how the use and development of the land for the access ramps should be characterised. Is the land being used for the purpose of a road, which is a section 1 use in the Green Wedge Zone and does not require a permit, or are the access ramps ancillary to the current use of the land? If they are ancillary to the existing use of Lot 1, can that existing use be extended to Lot 4? Would the grant of direct access to the freeway change the existing use of Lot 1?
2. Even if the only reason why a permit is required (apart from the removal of native vegetation) is under Clause 52.29 of the planning scheme to create access to a road in a Road Zone Category 1, issues arise as to the ambit of relevant considerations having regard to the National Trust principle[5]. Embodied in this issue are considerations of what aspects of policy in the planning scheme are relevant and, in particular, the relevance of Clause 52.30 about freeway service centres and the Freeway Service Centres Design Guidelines, May 1997 referenced in Clause 52.30-2 and Clause 22.04, which is a local planning policy on Highway Development.

1. The subject land comprises two lots. Lot 1 is a small lot of 1.214 hectares on the northeast corner of Bessie Creek Road and the Princes Highway. Lot 4 is a much larger lot of 59.48 hectares adjoining Lot 1. Lot 1 is currently used for the purpose of a service station, motor vehicle sales (new and used vehicles), motor repairs, caretaker's dwelling and residence. Lot 4 is vacant grazing land.
2. A series of permits have been issued over the years for use and development of Lot 1. The particular permit, which is proposed to be amended in this proceeding, is planning permit P1250 issued on 30 September 1985. It allows the following:

The use and development of land being Lot 1, LP 141579, Parish of Nar Nar Goon, for the purposes of mechanical and body repairs to motor vehicles, storage of damaged vehicles, parts recovery from damaged vehicles, sale of used cars, sale of spare parts and motor vehicle accessories, garaging of three (3) licensed tow trucks, sale of petrol, diesel, oil and other associated motor fuels, construction of one petrol station including:-

a a caretaker's dwelling c a free standing showroom

b a free standing workshop d a free standing residence

1. The proposal is an application for works and to amend plans so as to construct access ramps, which will provide for direct access onto and off the eastbound carriageways of the Princes Freeway from the site.
2. Specifically, the proposal seeks to amend planning permit P1250 to:
   • Include Lot 4 LP205007 and part of the road reserve within the address of the land to which the permit applies.
   • Allow access from Road Zone Category 1 and vegetation removal, generally in accordance with the approved plans.
   • Create access to the subject site for traffic travelling east on the Princes Freeway via an exit ramp located on the larger lot (Lot 4 LP205007) and access road (site entry road). Traffic on the exit ramp initially travels east off the Princes Freeway, before looping back to approach the smaller lot (Lot 1 TP109446P) travelling west.
   • Create access from the smaller lot to the Princes Freeway (eastbound) via an entry road located on the larger lot (north of the site entry road) and entry ramp to the Princes Freeway (site exit road).
   • Modify the existing termination of the service road on the south side of the subject site to provide for entry and exit from the smaller lot to the existing service road and connection to the proposed site entry and exit roads described above.
   • Remove vegetation from the road reservation on the north side of the Princes Highway adjacent to the south boundary of the subject site. The proposal includes the removal of 9.23 hectares of Swampy Woodland Ecological Vegetation Class (EVC 937) which is of very high conservation significance and 1 medium scattered tree of high conservation status. This results in a loss of 0.09 habitat hectares with a 0.18 habitat hectare offset requirement.
3. The amended permit would be subject to 53 extra conditions in addition to the 19 conditions already forming part of the permit. They include a series of conditions required by the referral authority, VicRoads, which require a Freeway Access Agreement with VicRoads and a section 173 agreement.
4. The service station owned by Mr Clough was originally located further to the south of the subject land. It fronted and had direct access to the Princes Highway, which then consisted of a two lane road (one lane of traffic in each direction). This service station was first established in the 1920's and was a blacksmiths premises before that time.

1. In the early 1980's, the Roads Corporation proposed to upgrade the Princes Highway to a freeway with dual lanes in both directions, separated by a central median. In order to do this, the Roads Corporation Authority (RCA) compulsorily acquired the land containing the old service station. Mr Clough purchased other land to the north (Lot 1). He constructed new buildings on this land and relocated his business there, receiving compensation for the land and buildings acquired by RCA. The map on the transfer of the 1 acre lot from Mr Clough to the RCA, shows the southern half of the land being acquired by the Road Construction Authority under the Transport Act to form part of a freeway (Prince Freeway) and the northern half of the land being acquired by the Road Construction Authority to form part of a road.
2. The part of the land acquired to form part of a freeway was used for construction of the eastbound carriageway of the Princes Freeway. The part of the land acquired to form a road was used for construction of a two way service road giving access to the subject land. This service road is commonly called the Princes Highway. It lies between the subject land and the Princes Freeway.
3. At this time there were discussions between Mr Clough and VicRoads about temporary direct access from Mr Clough's land (Lot 1) to the freeway during construction. It was agreed that during construction of the eastbound carriageway, a temporary access would be permitted from Lot 1 onto the service road and thence by two temporary access tracks onto the old Princes Highway, which was due to become the westbound carriageway of the freeway. In 1985, Mr Clough's solicitor sought to retain the temporary entrance driveway after the opening of the eastbound carriageway. VicRoads refused to consent to this request on the basis that "the proximity of this driveway to Bessie Creek Road, would give rise to confusion and uncertainty and result in hazardous operating conditions on the new carriageway."
4. What resulted was that Lot 1 had direct access to the service road and Bessie Creek Road. However, there was an intersection between Bessie Creek Road and the freeway, which meant that there was convenient access from Lot 1 via Bessie Creek Road onto both the eastbound and westbound carriageways of the freeway. At that stage, Bessie Creek Road also continued to the south (as Nar Nar Goon Road). In addition, notwithstanding VicRoads' refusal to formally grant temporary access to the freeway, the service road at the front of Lot 1 continued to connect directly to the eastbound land of the Princes Freeway until declaration of the Pakenham Bypass in December 2007.
5. In 2007, access arrangements to the Princes Freeway changed as a result of completion and declaration of the Pakenham Bypass. Works associated with the Pakenham Bypass at Nar Nar Goon included:
   • Construction of the Nar Nar Goon Interchange, approximately one kilometre to the west of Bessie Creek Road.
   • Closure of access from Bessie Creek Road and Nar Nar Good Road directly onto the freeway.
   • Reconstruction of the intersection of Bessie Creek Road with the Princes Highway, so that access from Bessie Creek Road onto the Princes Freeway must now be via the Nar Nar Goon Interchange.
   • Closure of the temporary access from the service road outside Lot 1 onto the eastbound carriageway of the Princes Freeway
6. Thus, whilst the service station on Lot 1 of the subject land retains access onto the service road, the convenient access onto the freeway via either Bessie Creek Road or the service road connection has been removed since 2007 and vehicles must now travel via the Bessie Creek Road/Princes Highway and gain access to the freeway, either westbound or eastbound, at the Nar Nar Goon Interchange.

1. Following declaration of the Pakenham Bypass in 2007 and changes to access arrangements to the freeway in the vicinity of the subject land and Bessie Creek Road, Mr Clough applied for a permit for the subject land (both Lot 1 and Lot 4) for a freeway service centre. The grant of a permit was supported by the council and VicRoads, but opposed by Longwarry. In Longwarry Pty Ltd v Cardinia SC[6], the Tribunal determined that no permit should be granted. It reached the following conclusions:

[16] We have decided that although the environmental and amenity aspects of the proposal can be adequately resolved, there are a number of factors which, when taken together, lead us to conclude that a permit should not issue.

[17] In our view the applicant proposes to develop a freeway service centre which contains a range of facilities which we consider to be well beyond what might be considered essential services to encourage a driver to take an effective break. The applicant has not established to our satisfaction that there is a strategic justification for the use at this location or that there exists an identifiable need for this proposal.

[18] We are not satisfied that this site represents a strategic location as envisaged by clause 22.04.

[19] The scale and arrangement of the facilities is such as to create a development where the internal circulation, parking and access arrangements do not adequately meet the requirements of the Freeway Service Centres Design Guidelines, May 1997.

1. There is no contention between the parties that a permit is required for native vegetation removal under Clause 52.17 of the planning scheme.
2. Vegetation removal will occur on the road reserve and Lot 4. Written evidence about flora and fauna was given on behalf of the permit applicant. No parties took issue with this evidence.
3. We are satisfied that it would be appropriate to grant a permit for vegetation removal under Clause 52.17 subject to the offsets and conditions contained in the council's Notice of Decision to Grant a Permit.

1. The whole of the subject land is in an Environmental Significance Overlay. Under the overlay, a permit is required to construct or carry out works. This does not apply if the schedule to the overlay specifically states that a permit is not required.[7]
2. Clause 3.0 of Schedule 1 to the Environmental Significance Overlay provides that a permit is not required to construct or carry out works provided all of certain requirements are met. The particular requirement that is not met in the current case is:
   • The buildings and works must not result in the removal or destruction of native vegetation (including trees, shrubs, herbs, sedges and grasses) within an area of botanical or zoological significance as shown on the mapped information provided by the Department of Sustainability and Environment with the exception of Sweet Pittosporum (Pittospurum undulatum).
3. On the basis of this provision, it would appear that a permit is required for works under the Environmental Significance Overlay. However, Clause 62.02-2 deals with buildings and works not requiring a permit unless specifically required by the planning scheme. It provides that any requirement in the scheme relating to the construction of a building or the construction or carrying out of works does not apply to roadworks (and various other types of development). This does not apply if a permit is specifically required for any of these matters.
4. There is nothing in the Environmental Significance Overlay or Schedule 1 that specifically requires a permit for roadworks. This can be compared to other provisions in the planning scheme where a permit is specifically required for roadworks, such as the Urban Floodway Zone[8] and the Heritage Overlay[9]. We therefore find that no permit is required to construct or carry out the works under the Environmental Significance Overlay because of the exemption in Clause 62.02-2.

1. A permit is required to create or alter access to a road in a Road Zone Category 1 pursuant to Clause 52.29. This is what has been applied for in the permit application.
2. The relevant purpose of Clause 52.29 is:

1. The decision guidelines for Clause 52.29 provide as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider:

• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• The views of the relevant road authority.
• The effect of the proposal on the operation of the road and on public safety.
• Any policy made by the relevant road authority pursuant to Schedule 2, Clause 3 of the Road Management Act 2004 regarding access between a controlled access road and adjacent land.

1. So far as the views of the relevant road authority are concerned, VicRoads supports the proposed access.
2. We deal with the effect of the proposal on the operation of the road and on public safety below.
3. We were told there is no relevant policy under the Road Management Act 2004 within the meaning of the last dot point of the decision guidelines.
4. The critical issue is therefore what aspects of the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF), including the municipal strategic statement and local planning policies, are relevant in deciding whether access is appropriate.
5. The council and Mr Clough both rely upon the National Trust principle to say that the Tribunal can only exercise its discretion in accordance with the purpose for which the discretion is conferred. Here, the permit applicant says no land use permission is sought or required. In these circumstances, a review of the existing uses on site to ascertain whether they meet Clause 52.30 relating to freeway service centres is unfair, inappropriate and unlawful. The express purpose of the relevant planning scheme control under Clause 52.29 is to ensure appropriate access to identified roads. The planning merits or desirability of the land use, which is proposed to be accessed, is not a relevant consideration. The Tribunal should therefore limit its consideration to issues of traffic and road safety, and give great weight to the views of the relevant road authority.
6. We endorse the application of the National Trust principle, but in doing so we must first determine what is the purpose for which the discretion has been conferred. What is meant by 'appropriate' access?
7. We consider that what constitutes 'appropriate' access must be determined by reference to the policy framework set out in the planning scheme. We consider it is too simplistic to confine this simply to issues of traffic and road safety. If the purpose of Clause 52.29 was meant to be limited in this way, then it would have been expressed differently. We consider that appropriate access means something broader.

1. Whilst Clause 18 of the SPPF on transport is relevant, it provides little specific guidance. In our view, the most relevant aspects of the policy framework are Clauses 21.07-2 and 22.04 of the LPPF.
2. The objective of Clause 21.07-2, which deals with the road network, is to provide an efficient, and safe and attractive regional and local road network. The clause goes on to provide:

The State highways and regional arterial roads perform an important function in the movement of people and freight, including tourist traffic. It is therefore critical that council, through land use and transport planning seeks to maximise the efficiency, safety and visual outlook of these roads. Ribbon commercial development along these roads should be avoided, and commercial activities such as service stations should be limited to strategic nodes preferably within township areas. Access to State highways and regional arterial roads should be minimised, and the location and design of any access should have regard to the efficient and safe movement of traffic along the road. The rural outlook of such roads, particularly on key tourist routes, should be protected.

1. Clause 22.04 is a local planning policy on Highway Development. It applies to use and development along various roads including the Princes Freeway. Clause 22.04-3 provides it is policy that:
   • Developments to service the needs of people travelling along highways be in a limited number of strategic located service nodes. ...
   • Before deciding on an application to use or develop land along a highway, the responsible authority consider:
     • The objectives and principles of the 'Freeway Service Centres Design Guidelines, May 1997'.
     • The advice of the Roads Corporation.
     • The maintenance of the safe and efficient movement of traffic along the highway.
     • The impact of the development on the outlook and visual amenity of the highway.
2. The Tribunal in Longwarry Pty Ltd v Cardinia SC found that the subject land did not represent a strategic location as envisaged by Clause 22.04. On this point, the Tribunal said:

[70] The relevant aspects of the policy encourages developments to service the needs of people travelling along highways to be in a limited number of strategically located service nodes. The policy also seeks to ensure that the uses provided in highway service nodes do not conflict with the role of commercial facilities provided in existing townships.

[71] We are not persuaded that the review site constitutes a strategically located service node for the purpose of responding to the policy objectives of Clause 22.04. We acknowledge that the policy is not particularly helpful in terms of identifying what constitutes a strategically located service node. However, the test under Clause 22.04 that developments to service the needs of people travelling along highways be in a limited number of strategically located service nodes, requires us to be satisfied that the site in the subject application does qualify as a strategically located service node.

[72] The review site is not identified in the planning scheme as an existing or future service node and we have not been persuaded that the review site exhibits the land use and site context characteristics which would qualify it as a readily identifiable strategically located service node.

1. We see no reason to depart from this finding.
2. Clause 22.04-3 also makes it clear that the Freeway Service Centres Design Guidelines should be considered before deciding on an application to use or develop land along a highway.
3. There is dispute amongst the parties about how the use of the subject land for these access ramps should be characterised, although there is no dispute that construction of the access ramps constitutes works and hence is a development of land. A permit for the works is not required under the Environmental Significance Overlay. Whether or not a permit is required under the zone or any other provision of the planning scheme for development depends, in part, on how the use is characterised. We will deal with this later.
4. However, if we confine ourselves to a consideration of the permit requirements of Clause 52.29, it is clear that to create access to a road in a Road Zone Category 1, works are required. Access from the Princes Freeway to the subject land cannot occur without substantial roadworks being constructed. Even if no other permit is required, we consider it would be disingenuous to suggest that an application for permit under Clause 52.29 should not be characterised broadly as an application to develop land along a highway within the meaning of Clause 22.04. The purpose of the policy in Clause 22.04 is to regulate the use and development of land along the Princes Freeway. The wording of this policy, taken in conjunction with the provision in Clause 21.07-2 that access to State highways should be minimized, implies an intention to limit access to the freeway by developments that service the needs of people travelling along highways.
5. Having regard to this policy framework, we consider it is relevant to consider whether access to the freeway is appropriate by having regard to the degree that the access will limit or facilitate access to the freeway; by considering if the development will service the needs of people travelling along the freeway; and by reference to the considerations in clause 22.04-3, in particular whether the access will meet the objectives and principals of the Freeway Service Centres Design Guidelines.
6. We will now consider these issues, together with issues of traffic and road safety that are referenced in the decision guidelines of clause 52.29.

1. VicRoads supports the design of the access ramps from a traffic and road safety perspective.
2. Ms Kate Partenio gave traffic evidence on behalf of the council and Mr Ernie Mensforth gave traffic evidence on behalf of Mr Clough. Both said that the design of the access ramps complied with relevant VicRoads and AustRoads standards.
3. Mr Henry Turnbull gave traffic evidence on behalf of Carwoode. He conceded that from a traffic engineering perspective, the access ramps met relevant standards and guidelines. However, based on his experience, he did not consider that the proposal to install a freeway off ramp approximately 400 metres east of the end of the existing Nar Nar Goon interchange on ramp in order to provide access to a single development was appropriate and would not allow for the safe and efficient operation of the freeway because:
   • It allows traffic to access the local road network through the subject site (via Bessie Creek Road).
   • The off ramp has a sharp bend only 200 metres from the ramp "nose", which will require traffic to slow down quickly from 100 km/h to an advisory speed of 50 km/h on the curve. This is likely to result in single vehicle crashes if vehicles fail to slow down appropriately.
   • The ramp does not provide a visual target for motorists to plan their stop because a driver will have passed the service centre for the exit ramp presents itself. A driver will need to travel away from the service centre before looping back to approach it from the opposite direction.
4. Mr Turnbull also was critical about the convoluted internal traffic movements that would occur on the site and the number of u-turns required to access the pumps or to exit the site travelling in a westerly direction.
5. We are satisfied that the proposed access ramps meet relevant traffic engineering standards, but we do not consider that the tight curve on the site entry road is desirable. We would not refuse a permit on this ground alone, but it contributes to our view that this access from the freeway is not appropriate.

1. The Freeway Service Centres Design Guidelines are a detailed set of guidelines that were prepared to provide direction regarding the location, design and layout of freeway service centres, with particular reference to safety and access requirements. They were part of a package of measures, including the introduction of clause 52.30, to guide and regulate the provision of such facilities. The primary objectives of the guidelines are:
   • To make a positive contribution to road safety;
   • To encourage private sector development of service centres along the rural freeway network that will improve safety, comfort and convenience of travel;
   • To encourage the provision of service centres at appropriate intervals within the network;
   • To create service centres that are responsive to the needs of road users;
   • To ensure that the required services are available on a 24 hours, 7 days a week basis.
2. The site facility and layout objectives are:
   • To allow for the provision of food and refreshments by way of convenience shop and restaurant(s) facilities;
   • To provide comfortable and safe toilet and washroom facilities;
   • To provide adequate parking, refuelling and servicing facilities for cars, articulated vehicles, B-doubles, coaches, trailers and caravans;
   • To provide outdoor eating areas, play areas and recreational facilities, particularly for families;
   • To provide telephone facilities;
   • To provide tourist information, covering both local and regional areas;
   • To provide for the possible future installation of emergency facilities for fire, police and ambulance.
3. The definition of freeway service centre in the planning scheme is quite general. A freeway service centre is:

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

1. What constitutes the essential services and facilities that a freeway service centre must include are set out in clause 52.30-1. They are:
   • Designated parking areas.
   • Undercover fuel sales area for petrol, diesel and LPG.
   • An area of not more than 240 square metres for the sale of food, drinks and other convenience goods.
   • An indoor sit-down eating area.
   • A safe play area for children.
   • Public toilets.
   • A public telephone.

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

1. The Freeway Service Centres Design Guidelines amplify on this list of facilities and services. In particular, they provide that:
   • Facilities provided must be for the benefit of freeway users and should be directed towards satisfying their needs.
2. The concept of need is reiterated variously in the guidelines. For example, they provide that in deciding whether or not to approve a freeway service centre proposal, the council must be satisfied that the proposal demonstrates there is "a genuine lack of facilities to meet the need of drivers along a section of a freeway".
3. The planning scheme and the guidelines also provide that a freeway service centre must not include:
   • Mechanical repairs (other than the emergency repair of vehicles).
   • Retail facilities of more than 240 square metres.
   • Video hire.
   • Post office services or facilities.
   • Entertainment facilities, amusement machines or gaming machines.
   • The sale, distribution or consumption of alcohol unless associated with a residential hotel/motel.
   • Car or truck wash facilities.

A freeway service centre with access to a rural freeway must not include overnight accommodation

1. The facilities currently existing on Lot 1 meet the basic requirements for a freeway service centre in terms of fuel sales, convenience shop and public toilets, operating 24 hours a day. On the other hand, it provides no indoor sit down eating area or playground. Lot 1 also includes mechanical repairs, which a freeway service station should not include. The convenience shop on site does not exceed 240 square metres, but according to the town planning evidence given by Mr Robert Milner on behalf of Longwarry, if the motor vehicle sales area is counted, then the total retail area is at least 700 square metres.
2. Mr Milner provided a detailed analysis of the extent to which the site complied with the guidelines. There were many features of non-compliance, especially with respect to the design and layout of the site. The key features of non-compliance identified by Mr Milner and by Mr Damian Iles, who gave planning evidence on behalf of Carwoode, were that:
   • The guidelines identify a separation distance of approximately 50 kilometres between freeway service centres. Granting direct freeway access to the subject site would reduce separation of distances between freeway service centre type development to less than 20 kilometres (18 kilometres to the Longwarry facilities at Longwarry and 17 kilometres to the Carwoode facilities at Officer). The separation between facilities is little more than a third that is specified in the guidelines. Strategically, the provision of direct access will interrupt the interval between the Officer and Longwarry freeway service centres and lead to a proliferation of this type of centre along this section of a rural freeway.
   • The guidelines provide that generally service centres should be established in pairs to serve both carriageways, with equivalent services offered at each facility. This discourages drivers from undertaking illegal u-turn movements or pedestrians crossing median strips. The service centre on the subject land would not function as a pair.
   • The retention of a vehicle repairer on the site would be contrary to the guidelines and would mean that the land use extends beyond the range of essential services to be available to uses of a freeway.
   • In Longwarry Pty Ltd v Cardinia SC the Tribunal determined that there had not been an identifiable need established for the services and facilities contemplated by the guidelines in this location. Subsequent construction of the Officer freeway service centres by Carwoode has further removed any argument that an identifiable need exists.
   • The subject site contains a dwelling (in addition to a caretaker's dwelling), which arguably is another facility that a freeway service centre should not include.
3. We consider that, on balance, it cannot be said that the objectives and principles of the Freeway Service Centres Design Guidelines would be supported or implemented by the provision of direct freeway access to the subject land.
4. The purpose of a freeway service centre[10] is to provide essential services and facilities which encourage drivers to stop and take an effective break in the interests of driver safety. Their purpose is not just to supply fuel for vehicles travelling along the freeway, but is aimed at driver safety. Encouraging drivers to stop and take an effective break accounts for the emphasis in the guidelines on food and refreshment facilities.
5. We do not consider that the range of facilities currently offered on the site will encourage drivers to take an effective break in the interests of driver safety. Drivers may be encouraged to stop to buy fuel or to use the toilet. However, the small convenience shop and the lack of any restaurant or other sit-down eating facilities, playground, picnic area or car paring mean that drivers are unlikely to stop for any longer than is necessary to complete their purchases.
6. We consider that the very limited facilities on the site mean that the activities on the site are not directed primarily to service the needs of people travelling along the freeway; certainly not the sort of needs that the Freeway Service Centres Design Guidelines are aimed at providing for. We consider the service station on the site simply constitutes a commercial development and activity. It does not constitute a freeway service centre as defined in the planning scheme.

1. We therefore come back to the Local Planning Policy Framework, which establishes the criteria by which we should judge whether access to a road in a Road Zone Category 1 should be given.
2. Having regard to clause 21.07-2, we consider that granting a permit for direct access to the freeway for the subject land would contravene the propositions that ribbon commercial development along state highways (such as the Princes Freeway) should be avoided; that commercial activities such as service stations should be limited to strategic nodes; and that access to state highways should be minimised.
3. In our view, the service station, motor vehicle sales and motor repairs conducted on the site constitute a concentration of commercial activity that is oriented more to the needs of the local and regional community than to the needs of drivers on the freeway. To the extent that such drivers may wish to use the facilities provided on the site, such as to purchase fuel or use the toilet, they can access the site via the Nar Nar Goon interchange.
4. With respect to clause 22.04, we consider that providing access to the site would be contrary to this local planning policy. We do not consider that the current uses on Lot 1 can be said to be a use of land to service the needs of people travelling along the freeway. Even if the service station could be said to service the needs of people travelling along the freeway, we do not consider this is a strategic located service node. We also consider that the works to provide access to the site will be contrary to the objectives and principles of the Freeway Service Centres Design Guidelines.
5. We therefore conclude that the proposed access would be contrary to the LPPF.

1. We reject the argument put by Mr Clough that this proposal constitutes a "reinstatement" of a long enjoyed direct access to the freeway. We find that the subject land has never enjoyed direct access to the freeway. When Mr Clough's business was transferred to Lot 1 in 1985, he had convenient access to the freeway but never direct access. Lot 1 only had direct access to Bessie Creek Road and the service road. This has not changed. However, the subject land was never formally granted temporary or permanent access to the freeway. There was direct access from Bessie Creek Road and the service road to the freeway, but this was changed and cut off in 2007 when the Pakenham Bypass was completed.
2. When the Princes Freeway was first constructed in the 1980's, it was constructed to a typical rural freeway standard, which meant that it had various points of direct access to it, such as Bessie Creek Road, Nar Nar Goon Road and the service road fronting the subject site. The Pakenham Bypass upgraded the standard of the freeway and reduced the number of access points. There has been significant public investment in these works.
3. The Nar Nar Goon interchange is a substantial item of infrastructure. Its construction has significantly upgraded the operation, efficiency and safety of the Princes Freeway in this location and meant that other access points to the freeway, such as Bessie Creek Road, have been able to be closed. It therefore seems strange to us that VicRoads should now be willing to agree to give exclusive access to a private property so close to the interchange when to do so will undermine the effect of the public investment in the Pakenham Bypass to limit access points and when the commercial activities on the site fail to comply with the objectives and principles of the Freeway Service Centres Design Guidelines. In our view, these guidelines represent the planning regime within which facilities for motorists, which are to be given direct access to a freeway, should be judged.
4. VicRoads has admitted that its support for the application is an exception to its normal practice. It said in its submission:

2.5 It is correct that as a matter of regular practice VicRoads will deny or oppose the right to exit from or enter upon, a freeway for an individual development, unless that development is a Freeway Service Centre in the true meaning of that term. To that extent, because this development does not constitute a Freeway Service Centre (in the view of VicRoads) the consent of VicRoads to these proposed access arrangements is an exception. Importantly it is an exception by VicRoads in its capacity as the Road Manager pursuant to the Road Management Act, not pursuant to any (town) planning consideration.

2.6 The reason for VicRoads exception in the current situation does rest in part around consideration of the impacts of the bypass works on the particular development and family company associated with that. It recognises that the development already existed and had access to the former Princes Highway arrangements (ie. pre-bypass), the fact that the current access arrangements to the existing business are now set significantly back to the west, the prospect that passing traffic may still seek to perform various traffic manoeuvres to "get back to" the business once it has been passed and observed travelling east and finally there is an element of recognition of the likely impact of the bypass works on that existing business.

2.7 Whilst the planning issues are obviously for this Tribunal to decide, the application by VicRoads of the discretion as the Road Manager to make an exception to its own practice is, with respect, a decision for VicRoads.

1. We agree that VicRoads has a separate discretion to exercise as the road manager pursuant to the Road Management Act. However, our role is to make a decision about a planning permit within the parameters of the planning scheme and the Planning and Environment Act 1987. We are not persuaded that the reasons given by VicRoads for creating an exception in this circumstance under the Road Management Act are relevant planning considerations. They relate to the personal circumstances of Mr Clough whereas under clause 10.04 of the SPPF:

... Planning authorities and responsible authorities should 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. We do not consider that giving direct access to the subject land from the Princes Freeway will result in a net community benefit. We consider that to do so will compromise planning policy to limit access to the freeway; would render less effective the substantial investment of public funds in this section of the Pakenham Bypass, including the Nar Nar Goon interchange; and would undermine the strategic planning regime that has been included in the planning scheme to regulate the provision of freeway service centres along freeways. We consider these are disbenefits to the community.
2. In terms of benefits to the community, we acknowledge that there will be some benefits for motorists who wish to purchase fuel from a Shell service station to be able to get direct access from the freeway to the site.
3. Motorists travelling east who wish to access the site presently need to exit the freeway at the Nar Nar Goon interchange, travel 1.7 kilometres along Bessie Creek Road to the site and then retrace this route to the Nar Nar Goon interchange to re-access the freeway. Creation of direct access would mean that these motorists could access the site more directly, the total length of the site entry ramp being only 1.3 kilometres long and the site exit ramp being somewhat less than this. However, access would only benefit motorists travelling eastwards. Motorists travelling west who wish to access the service station would still need to exit at the Nar Nar Goon interchange.
4. There are signs on the freeway and at the Nar Nar Goon interchange to indicate the presence of Shell fuel facilities if this turnoff is taken. We are not persuaded that the route off the freeway via the Nar Nar Goon interchange and thence to Bessie Creek Road to access the service station is as difficult or inconvenient as represented by Mr Clough or the council. Motorists have needed to use this route for the past four years since access to and from the freeway was closed in 2007. Although the closure may have affected Mr Clough's business, it has survived. There is no doubt that the business would benefit if access is granted, but this is a private benefit, not a community benefit.
5. A permit for a freeway service centre on this site has been previously refused. Granting direct access to the freeway by amending the permit in this proceeding will effectively 'get around' that refusal. It will confer a great benefit on Mr Clough without requiring him to provide the standard of facilities that the likes of Longwarry and Carwoode have had to provide to obtain their permits in accordance with the planning regime for freeway service centres.
6. We acknowledge that the existing service station is a historic legacy and will remain in operation. The provision of freeway service centres is a new version of this old style of use. The planning scheme provisions and Freeway Service Centres Design Guidelines were introduced to control the development of such facilities along freeways rather than just allowing these facilities to develop ad hoc, as occurred in the past along highways and other arterial routes. Their introduction was intended to change the status quo. The planning scheme provisions and the guidelines introduced the concept of need, which is unlike other uses regulated by the planning system. We do not consider that the service station facilities on the subject land meet the need identified in the planning scheme and guidelines.
7. We have concluded that whilst direct access to the freeway will benefit Mr Clough and potentially some of his customers, who will be able to shorten the distance they will need to drive off the freeway in order to buy fuel, these benefits do not outweigh the disbenefits to the broader community that such access would involve.

1. We have therefore concluded that amending the permit to create access to the Princes Freeway would not constitute appropriate access within the meaning of the purpose of clause 52.29. It would be contrary to the LPPF; it would be contrary to the Freeway Service Centre Guidelines and the regime established in the planning scheme to regulate services and facilities having direct access to freeways; and it would not result in a net community benefit.
2. The application to amend the permit to allow access to a road in a Road Zone Category 1 should therefore be refused.

1. Several issues arise with respect to the way in which the use of the subject land for the purpose of these roadworks should be characterised:
   • Do the roadworks constitute a separate use of land for the purpose of road or are they ancillary to the existing use of the land for the purpose of service station, motor vehicle sales and motor repairs?
   • If the roadworks are ancillary to the existing use of the land, does Lot 4 enjoy existing use rights for the same purpose as Lot 1?
   • If direct freeway access was created would this change the existing use of the land and require a permit for use of the land for a freeway service centre?

Is the use for the purpose of road or ancillary to the existing use?

1. Mr Clough and the council both maintain that the roadworks constitute use of the subject land for the purpose of a road. Under the Green Wedge Zone, road is a section 1 use and no permit is required for this use.[11]
2. We disagree. We consider that the purpose of the roadworks is solely to provide access to Lot 1 and the uses presently carried out on that land.
3. In considering how to characterise the use, we do not consider it is relevant that the roadworks traverse in part a road reserve in addition to private land. This commonly occurs with the provision of access. Nor do we consider it is relevant that the access ramps will be subject to the road rules and directives as to speed or that they will be under the control of Vic Roads pursuant to a Freeway Access Agreement and section 173 agreement. The roadworks on private land will remain in the ownership of the land owner.
4. The definition of road in the Planning and Environment Act 1987 provides as follows:

road includes highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not.

1. We agree that the roadworks fall within this definition. However, this is not determinative of the fact of whether land is used for the purpose of a road as a separate use of land, as distinct from a road being ancillary to the primary purpose of the use of land, which in this case is for the purpose of a service station, motor vehicle sales and motor repairs.[12]
2. We agree with the principles applied in Marble Swirl Holdings Pty Ltd v Kingston CC[13] and Daryl Pelchen Architects Pty Ltd v Stonnington CC[14]. As Member Komesaroff said in Marble Swirl Holdings:

[15] The purpose of the access-way is an integral part of the dominant use or uses to which the subject land is put, because it is the dominant use or uses which need that access-way to satisfy their parking requirement under the scheme. The access-way does not have a separate character or purpose. It has a subservient purpose.

[16] To the degree that the access-way serves the supermarket, that is its essential character. To the degree that the access-way serves the apartments, that is its character. It takes its character or colour from its masters, from the real and substantial purpose to which the land is put.

1. We find that the roadworks do not have a separate character or purpose as a road but are an integral part of the existing use of Lot 1 and hence are ancillary to this use.

1. If the roadworks are ancillary to the existing use of Lot 1, they do not require a separate permit for use. However, arguably they would require a permit for development under clause 63.05 in addition to a permit under clause 52.29. Clause 63.05 provides, inter alia, as follows:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

• No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
• The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

1. The amendment to permit P1250, which Mr Clough seeks, includes a change to the description of the land affected by the permit to include Lot 4. However, we find that only Lot 1 has existing use rights for the purpose of service station, motor vehicle sales, motor repairs and the other uses allowed by permit P1250.
2. For the reasons set out in Fosters Group Limited v Mornington Peninsula SC[15], we do not consider that the permit can be amended so as to permit use and development that would be otherwise prohibited under the planning scheme to be extended onto Lot 4, which does not currently enjoy the same existing use rights as Lot 1.
3. In the Green Wedge Zone, service station, motor vehicle sales and motor repairs are a section 3 (prohibited) uses.
4. Mr Clough gave evidence that Lot 4 had been used for car parking and the storage of vehicles associated with the motor vehicle sales and motor repairs uses on Lot 1 for a period in excess of 15 years and had thus acquired existing use rights for these purposes. However, we were not persuaded by his evidence that Lot 4 has acquired existing use rights.
5. Evidence provided by Carwoode in the form of aerial photographs dating from 1984, which was before Mr Clough's business was transferred to Lot 1, through 1989, 1992, 1998, 2007 and 2009 do not reveal any evidence of vehicles parked on Lot 4.
6. Even if we accept Mr Clough's evidence that a very small part of Lot 4 has been used to park vehicles associated with the motor vehicle sales and motor repairs aspect of the land use of Lot 1 from time to time, there is no evidence there has been any use of Lot 4 in association with the service station. Even if some part of the land along the fence line of Lot 4 is used for parking cars associated with motor vehicle sales and motor repairs, we do not consider that the occasional parking of a car on Lot 4 by a cleaner cleaning the service station to extends the use of service station to the whole of Lot 4. As was said in Eaton and Sons Pty Ltd v Warringah Shire Council:[16]

It seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose.

1. We therefore find that Lot 4 has not been used for the purpose of a service station. The access ramps are proposed primarily (and possibly exclusively) to access the service station component of the use of Lot 1. As there are no existing use rights extending to Lot 4 for the purpose of a service station, it is not possible to amend the permit so as to permit Lot 4 to be used and developed for this purpose because it is prohibited under the planning scheme.
2. We therefore conclude that, as a matter of law, we are precluded from amending permit P1250 to include Lot 4 and to thereby grant approval for its use for the purposes set out in the permit and its development for the proposed roadworks.

Would direct freeway access change the use of Lot 1?

1. Longwarry submitted that if a permit was granted under clause 52.29 to give direct access to the subject land from the Princes Freeway this would have the effect of changing the use on the subject land to that of freeway service centre. It would mean that a permit for this use would be required under the Green Wedge Zone.
2. We are not persuaded that this is the case for several reasons.
3. The definition of freeway service centre in the planning scheme is:

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

1. The definition contains two elements:
   • Direct access to a freeway; and
   • Use of the land to provide essential services and facilities which encourage drivers to stop and take an effective break in the interests of driver safety.
2. The definition does not include all the specific facilities required of a freeway service centre under clause 52.30. The subject land contains some of these facilities, but not all.
3. For reasons which we discussed previously, we are not persuaded that the facilities provided on Lot 1 are services and facilities which encourage drivers to stop and take an effective break. Therefore, although the service station on Lot 1 may provide some services and facilities specified in clause 52.30, they do not meet the necessary criteria set out in the definition of encouraging drivers to stop and take an effective break in the interests of driver safety. In the absence of any proposal to upgrade the facilities, we do not consider that the existing use of the land will therefore change by giving it direct access to the freeway. It will not thereby become a freeway service centre and thus require a permit for this use.
4. In Typhoon Pty Ltd v Macedon Ranges SC[17], the Tribunal held that a proposed use of land, which included all the components required by clause 52.30 except for direct access to a freeway, should be characterised as a 'service centre', as distinct from a 'freeway service centre', and that such a use was a separate innominate use. In the present case, we do not find that the existing use of Lot 1 complies with the requirements set out in clause 52.30. Consequently, we do not consider it can be characterised as a service centre, unlike the situation in Typhoon. Direct access to a freeway would not change a use that is not a 'service centre' into a freeway service centre.

1. In summary, our conclusion is that permit P1250 should not be amended. We do not consider that the creation of access to a road in a Road Zone Category 1 pursuant to clause 52.29 would be appropriate having regard to the relevant provisions of the State and Local Planning Policy Framework. There would be no net community benefit. As a result, the proposal would not produce an acceptable outcome.
2. Further, as a matter of law, we find that it is not possible to amend the permit to extend to Lot 4 because this would allow Lot 4 to be used for a purpose for which it has no existing use rights and which is prohibited under the planning scheme.

[1] Permit Number 1250 issued 30 September 1985

[2] Longwarry (Eastbound) Pty Ltd and Longwarry (Westbound) Pty Ltd.

[4]Longwarry Pty Ltd v Cardinia SC [2008] VCAT 2469. At around the same time, a permit was also refused for a freeway service centre on land on the opposite side of the Princes Freeway to the subject land; see Red Gem Pty Ltd v Cardinia SC [2008] VCAT 1504.

[5] National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592

[6] [2008] VCAT 2469

[10] Embodied in both the definition and clause 52.30.

[12] We acknowledge that Lot 1 is used for other purposes as well, such as a residence and caretaker's dwelling, but we do not consider these uses are relevant in the context of the present discussion.

[13] [2008] VCAT 973

[14] [2010] VCAT 1670

[15] [2010] VCAT 104

[16] [1972] HCA 33; 129 CLR 270 at 278

[17] [2004] VCAT 913