2 Before the use starts a management plan shall be submitted to and approved by the Responsible Authority for complaints handling received in relation to odour and noise, particularly in relation to tank filling.

3 Before the development starts, an amended landscape plan, which includes a fence with appropriate acoustic attenuation properties being located on the common boundary with No. 2 Kent Street. This plan shall be prepared by a suitably qualified and experienced person and to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a) All trees to be removed clearly indicated and species nominated.

(b) A schedule of all proposed trees, shrubs and ground cover, including the location and size at maturity of all plants, the botanical names of such plants and location of all areas to be covered by grass, lawn, paving or other surface materials specified.

(c) Native indigenous plants of local provenance, that will supplement existing landscaping in the locality and contribute to the precinct character.

The above fence shall be constructed prior to the initial use of No. 2 Kent Street for residential purposes

4. Before the development starts, a construction management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must include:

(a) A proposed time line and sequence of construction.

(b) Location of worker site accommodation and facilities.

(c) Location of materials to be stored on site during construction and delivery.

(f) Measures to control noise, dust, and water runoff, including sediment control, during construction.

(g) Stormwater management and on-site retention opportunities.

(h) Provision for the management of all building and construction waste, including recycling of all materials generated during construction.

5. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

6 Before the use starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:

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

(e) Line-marked to indicate each car space and all access lanes.

(f) Parking areas and access lanes must be kept available for these purposes at all times.

7 Construction plans for all parking areas, access lanes, and drainage must be approved by the Responsible Authority prior to the start of the approved works.

8 All areas of the development must be drained to the existing stormwater system via an underground drainage system or other approved method of stormwater drainage to the satisfaction of the Responsible Authority. This drainage system must include permanent siltation control measures and during construction.

9 The amenity of the area must not be detrimentally affected by the use or development through the: -

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

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

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

10. The permit-holder shall provide at his expense to the satisfaction of the Responsible Authority a traffic management plan, which includes:

(a) Works generally in accordance with Appendix B of the Turnbull Fenner report dated 13 March 2002.

(c) Removal of car parking spaces in Main Street in front of the site.

(d) "No standing" signs being installed in Main Street and Kent Street at appropriate locations, to the satisfaction of the Responsible Authority, to deter the parking of vehicles in locations which would obstruct sightlines and interfere with access to the subject site from Main Street.

(i) Signs not greater than 0.3 square metres being provided to direct drivers to the areas set aside for car parking. The signs, their location and maintenance must be to the satisfaction of the Responsible Authority.

When approved the traffic management plan shall be endorsed to form part of this permit.

11 Before the use allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority, and must then maintained in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

12 The permit-holder shall make all reasonable endeavours to ensure that vehicles under the control of the operator of the use or the operator's staff must not be parked in Main Street or Kent Street.

13 All road works and/or internal traffic measures for the internal accessways and the permitted points of ingress and egress are to be designed and constructed to the satisfaction of the Responsible Authority, at the cost of the permit holder.

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

15 In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences and landscaping.

16 All disused parts of vehicle crossings shall be removed and the area reinstated to kerb and channel and landscaped to the satisfaction of the Responsible Authority.

17 The filling of underground tanks, the fuelling, the loading and unloading of goods and the standing of vehicles whilst awaiting service or collection shall be carried out entirely on the site. The servicing of vehicles shall only be carried out within the work bays.

18 Except with the further consent of the Responsible Authority the service station use shall operate only between 7.00 am to 11.00 pm, and the motor repair use shall only operate between:

19 Outdoor lighting must be baffled and located to prevent light causing detriment to the locality. Security lighting shall be provided to the satisfaction of the Responsible Authority.

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

21 The selection of paving materials to be used on the land must be to the satisfaction of the Responsible Authority.

22 Access to the land must only be at the nominated crossings shown on the endorsed plan. The crossings and road pavement works are to be constructed to the satisfaction of the Responsible Authority.

23 Petrol/gas delivery vehicles must not use Kent Street.

24 Adequate signs, pavement markings and traffic islands must be provided to direct and control the flow of traffic within the site, including the clear definition of permitted entry and exit crossovers, all to the satisfaction of the Responsible Authority.

25 The standard of operation for maintenance (not including noise) must be consistent with EPA information bulletin - 'Waste control at motor vehicle repair and service premises - Best practice environmental management'.

26 Noise emitted from the premises must not exceed the requirements set out in the State Environment Protection Policy (Control of noise from Commerce, Industry and Trade) No. N-1.

27 Tanker deliveries must only be between 6.00 am and 9.00 am, and 7.00 pm and 9.00 pm, unless with the further written consent of the Responsible Authority.

28 Petroleum storage tanks must be designed, installed and operated in accordance with the "Code of practice for the design, installation and operation of underground petroleum storage systems (UPSS)" published by the Institute of Energy.

29. During the construction and post construction activities at the premises, the permit-holder shall take all reasonable measures to ensure to prevent the discharge of dust and sediment

30 Construction and post construction activities must be in accordance with the following EPA guidelines and policies:

* Environmental guidelines for major construction sites (EPA publication No 480, December 1995)

* Construction techniques for sediment pollution control (EPA publication No 275, May 1991)

31 The permit-holder shall undertake all reasonable measures to remedy any groundwater pollution detected resulting from the approved use and rectify any leaks from underground storage tanks and associated pipework

32 No external sound amplification equipment or loudspeakers shall be used for the purpose of announcements, broadcasts, playing of music or similar purposes.

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

34 No external refrigeration or air-conditioning units shall be installed and the location of intake and exhaust grilles shall be to the satisfaction of the Responsible Authority.

35 Adequate provision must be made for recycling bins, the storage of other garbage, and solid wastes in bins or receptacles within screened areas shown on the endorsed plans to the satisfaction of the Responsible Authority. Provision for the collection of waste must be to the satisfaction of the Responsible Authority.

36. Except with the further consent of the Responsible Authority, all building work associated with the construction of the development is to be limited to the following hours, unless otherwise approved by the Responsible Authority:

The use of the following items of plant on the site is also restricted to the above hours except for Sunday and public holidays when they must not be used.

Compressors, bulldozers, power operated machinery, excavators and loaders, concrete mixers and concrete delivery wagons, and the like.

37. During the construction period of the development:

(a) The permit-holder must have suitable dust suppression devices/vehicles available on site at all times in dry weather conditions or as directed by the Responsible Authority. These devices/vehicles must be used to ensure that dust is not deposited on adjoining and surrounding lands during construction of the developments.

(b) Truck wheel wash facilities must be installed and used to the satisfaction of the Responsible Authority so that vehicles leaving the land do not deposit mud or other materials on the road.

38. Before the development starts, a site management and environment plan shall be submitted to and approved by the Responsible Authority. Such plan will have regard to the Council's Sustainability framework and shall provide details of the following:

(b) Measures to control noise, dust and water runoff, including sediment control during construction.

(c) Stormwater management and on-site retention opportunities.

(d) Provision for the management of all building and construction waste, including recycling of all materials generated during construction.

(e) Opportunities to maximise energy efficiency and reduce reliance upon non-renewable resources and materials, including the use of solar and/or green power and appropriate building materials where appropriate.

(f) Details for best practice waste management of the facility once operating.

(g) Any other opportunity to achieve best practice sustainability for the development.

39 The location and details of signs shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

40 Signs must not contain any flashing light or restrict sight distance for motorists to pedestrians or vehicles in Main Street.

41 All signs must be maintained to the satisfaction of the Responsible Authority.

42 All signs must be located wholly within the boundaries of the land, and must not be located on any road reserve. This includes any sign attached to a vehicle where it is being used as an advertising sign.

43 This permit will expire if one of the following applies,

(a) Development is not started within two years of the date of this permit

(b) Development is not completed within four years of the date this of this permit.

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

44 The approved use shall not be commenced before the completion of the development required under this permit. Any staging of the development shall be subject to the Responsible Authority's written consent.

45 Save with the permission of the Responsible Authority, the internal illumination of signs must be extinguished when the service station is not in operation.

Mr S Morris QC by direct brief, who called evidence from Mr P Small, Consultant Town Planner, and Mr H Turnbull, Consultant Traffic Engineer

Mr P Bergman, Town Planner, Mornington Peninsula Shire Council

Mr F Bjerkhamn for the Mornington Environment Association

Pursuant to s 77 of the Planning and Environment Act 1987, application for review of a decision by the responsible authority to refuse to grant a permit.

The proposal is to develop a "Safeway Petrol Plus" service station on the land, replacing the existing motor vehicles sales use of the land. The proposed development includes 4 petrol bowsers underneath an overhead canopy, a sales point and kiosk of 31.35 square metres, a vehicle repair workshop containing 3 mechanical bays (127.17 square metres), reception area (21.93 square metres) and a staff area (33.46 square metres). Signage is also part of the application and the proposed signage includes an internally illuminated pylon sign in the front landscaping strip, internally illuminated canopy signage and kiosk signage.

The land is located at 321-325 Main Street, Mornington. It has a frontage to Main Street of 30.48 metres, a depth of 43.89 metres and an area of 1,338 square metres.

There is a drainage, sewerage and carriageway easement along the rear of the site, providing access to and from Kent Street. This easement extends across the rear of the allotment on the corner of Kent and Main Streets. The original proposal was to use that easement and a number of objections to the proposal were lodged by the residents of Kent Street. It is no longer proposed to use that access and this is reflected by Condition 1 of my Order.

The land is included in the Business 5 Zone in the Mornington Peninsula Planning Scheme. Pursuant to that zoning a permit is required for the proposed use and for buildings and works. A permit is also required pursuant to Clause 52.12-1 in that the land has a frontage less than 36 metres. A permit is also required for advertising signage pursuant to Clause 52.05. This zone is in Category 3 at Clause 52.05-9.

GROUNDS OF REFUSAL AND GROUNDS OF APPLICATION FOR REVIEW

1. The proposed use and development would be detrimental to the traffic management and safety in the locality.

2. The proposal is contrary to the purpose of the zone.

3. The proposal would adversely affect the amenity and is contrary to the reasonable expectations of nearby residents.

The Grounds of Application for Review were the opposite of the grounds of refusal.

1. The Officer's Report on the permit application recommended that a permit be

granted subject to conditions, including that there be no access to Kent Street. Mr Morris submitted that his client's case was that the Officer had got it right and relied on the evidence of Mr Small and Mr Turnbull to demonstrate that.

2. I have inspected the site and surrounding area. I conducted my inspection on

Thursday the 14th of March, starting at 3:45 pm to coincide with the peak traffic

3. The proposal is not contrary to the purpose of the zone. The purpose of the zone is as follows:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To encourage the development of offices or multi-dwelling units with common access from the street."

Mr Bergman submitted that the proposal was contrary to the second of these purposes. However, there is nothing in the purpose of the zone to suggest that uses such as service stations are to be discouraged. The fact that "service station" is an identified Section 2 use in the Use Table to the zone clearly indicates that this is a legitimate use in the zone and may establish with the requisite permit.

4. The subject land is located in what might be termed the gateway to the Mornington shopping centre. Main Street between the Nepean Highway and the Mornington shopping is undergoing significant change with the conversion of houses to commercial uses and the replacement of houses by double storey office uses. The result is a local environment characterised by a variety of uses (offices, dwellings, consulting rooms, a motel, a fire station etc), built forms, front setbacks and materials of construction. This section of Main Street does not have a distinguished character and in my opinion leaves a good deal to be desired in urban design terms. The proposed development would not be out of character in the area and in many respects would have a more positive impact than the existing car sales use of the land. Mr Bergman's submission conceded that the proposal is consistent with the State Planning Policy on Activity Centres policy at Clause 17.01 of the Mornington Peninsula Planning Scheme.

5. Clause 52.12-1 of the Scheme provides that land may be used for a service station provided that certain requirements are met. These include that the site is at least 1,080 square metres in area and has a frontage of least 36 metres and a depth of at least 30 metres, and if the site adjoins a residential zone a landscape buffer strip at least 3 metres wide must be planed and maintained to the satisfaction of the responsible authority. However, a permit may be granted to vary these requirements. In this instance the site area is 1,338 square metres, the depth is 43.89 metres and the frontage is 30.48 metres. Given the land is significantly larger and deeper than the dimensions specified, and given the relatively generous layout of the proposal, which will result, in my opinion, in the proposed use operating without congestion on site, it is appropriate to vary the frontage requirement.

6. The subject land abuts a Residential 1 zone to the rear, as do the abutting allotments fronting Main Street. The allotment to the southeast is occupied by a recently developed two storey office building. It does not have a 3 metre wide buffer strip along its rear boundary. A permit has been issued for an office development on the allotment to the northwest. Mr Morris informed me that the plans for this permit do not show a 3 metre wide buffer strip along the rear boundary either. The proposal does have a landscape buffer strip along the rear boundary, except for the area between the workshop and parking spaces 2-6. Taking up the suggestion made by Mr Bjerkhamn, Mr Morris stated that his client would readily accept a condition requiring that this area be devoted to a landscape strip at least 2.5 metres wide. Given that the allotment to the rear facing Kent Street, despite being zoned Residential 1, is in effect a car park for the existing car sales use on the subject land, and given that if it is developed for residential purposes at some future time the area of landscape strip in question is located to the rear of that allotment, I think that would be a reasonable outcome and have accordingly imposed that condition in my Order.

7. There are no statutory requirements for car parking for service stations included in Table 52.06-5 of the Planning Scheme, but the responsible authority (and therefore this Tribunal) must be satisfied with the number of spaces proposed. I accept Mr Turnbull's evidence that the 9 spaces proposed more than meet the likely demand for 7 spaces generated by the employees of the proposal. I also accept his evidence that there are sufficient spaces in the double length mechanical servicing bays and between the workshop and the car parking on the northwest boundary to more than accommodate cars associated with the workshop such that they will have no impact on vehicles accessing the petrol bowsers and exiting the site. I am also satisfied that the turning circle available for petrol tankers making deliveries to the site is sufficiently large to allow entry and exit in a forward direction. I was advised that petrol deliveries would occur approximately 3 times per week and have imposed an appropriate condition as to when those deliveries are to occur so that they do not coincide with peak traffic periods in Main Street.

8. The responsible authority, Mr Bjerkhamn and Mr Hona are concerned that the proposal will unreasonably exacerbate traffic congestion on Main Street and result in relatively high volumes of traffic in Kent Street. As to Kent Street, there will be no direct access to it from the proposed development. There may be some increase in traffic using Kent Street, or other streets such as York Street, as a result of cars exiting the service station and then turning left. It is unlikely that any increase in traffic on these streets will be significant, for two reasons. The Safeway Plus system operates on the basis that the purchase of goods in a Safeway supermarket (in this instance such a store is located in Main Street some 400 metres to the northwest on the edge of the Mornington shopping centre) allows the purchase of petrol at a discount on production of a receipt at the service station. The discount applies regardless of the amount of petrol purchased and is valid for a month from the date appearing on the Safeway supermarket receipt. The system operates so that there is a great incentive to fill a vehicle at a Safeway Plus service station (not necessarily one close to where the supermarket purchase was made) when it is running low in order to capitalise on the discount, rather than go immediately from the supermarket to the service station. This means that the service station is unlikely to generate significant new or additional traffic on local roads, in this case on Main Street. The data supplied by Mr Small as a result of a survey his firm conducted between 10 am and 3 pm at the Safeway Plus service station at 49 Main Street Pakenham supports this proposition. The Pakenham Safeway Plus has a similar number of bowsers as proposed in this case and is located some 400 metres from a Safeway supermarket. Of the 440 cars utilising the service station during the survey period, 251 did not have a Safeway receipt, 100 used a receipt between 1 week and 1 month old and only 29 (6.6%) used a receipt between less than an hour and 1 week old. It seems reasonable to conclude from Mr Small's data that petrol purchasers who had a receipt did not change their travel behaviour in order to capitalise on the discount, but utilised the discount when their cars were running low on petrol. For the 62.7% of drivers who did not have a receipt and therefore could not avail themselves of the discount, there was no incentive for them to be "new users" of the road on which the service station was located. There is no reason to suspect that the behaviour patterns revealed by Mr Small's survey will be any different in this case.

9. The second reason why there is unlikely to be any significant increase in cars turning left into residential streets such as Kent and York Streets is that routes through the residential street network to exit Mornington are not straightforward. It is much more likely that cars seeking to leave Mornington will proceed down Main Street to Barkly Street, or turn around the roundabout and proceed back down Main Street to access the Nepean Highway via the traffic lights at that intersection. In any event the volume of additional cars using Main Street as a result of utilising the proposed service station is not likely to be large.

10. Mr Turnbull estimated that approximately 40 cars will enter and exit the each of the two crossovers of the service station during the week day peak commuter hour, increasing to 80 during the weekend peak. His analysis of traffic impacts was based on the very conservative assumptions that all cars using the service station were "new" users of Main Street and not through traffic, that there was no platooning of traffic caused by the traffic lights at the Nepean Highway and that all traffic entering the service station would turn right in from Main Street. His conclusion, based on these assumptions, was that the traffic could readily be accommodated by Main Street and that the proposed development will have no detrimental impacts, resulting in average delays of only some 17-18 seconds at peak periods. Even though the Council's own traffic volume counts on Main Street, undertaken after Mr Turnbull did his counts, record marginally higher volumes than those recorded by Mr Turnbull, the very conservative nature of Mr Turnbull's assumptions set out above are such that his analysis and conclusions are not in any way invalidated and I accept them.

11. For these reasons I have decided to allow the Application for Review, set aside the decision of the responsible authority, and have ordered that a permit issue subject to conditions. In doing so I am not dismissing the concerns of Mr Bjerkhamn and Mr Hona that traffic conditions in Main Road have deteriorated in recent years as a result of increased volumes, causing delays and frustration at peak periods for people exiting their properties onto Main Street or entering Main Street from side streets such as Kent Street. In my opinion the proposed development will not significantly exacerbate existing traffic conditions. However, the continuing redevelopment of residences along Main Street for offices and similar uses may well have a significant impact over time on traffic conditions and this is a matter which the Council would do well to turn its attention towards.