The following persons appeared in person: Jan Najdecki; Stephen Frost; Kaye O'Connor and Geoffrey Satchell.

1 This matter involves the proposed use of the existing building at 14-16 Punt Road, Windsor ("subject land") as a licensed tavern for up to 300 patrons. The building has previously been used as a restaurant, and is currently vacant. The subject land sits on the corner of Punt Road and Nelson Street, which is immediately south of the Queens Way underpass and to the east of St Kilda Road.

2 The proposal involves the utilisation of the bottom two levels of the existing building, with the top level being left vacant. Council and the objectors raised a variety of grounds of opposition to the proposal, notably the potential amenity impacts on the nearby residential occupants, and alleged lack of compliance with the requirements of the new tobacco legislation, together with concerns about the ability of the locality to accommodate the traffic and parking requirements of the proposal (bearing in mind the lack of any on-site parking provided on the subject land).

3 In terms of the overall findings of the Tribunal, relying on the recent decision of Ryan v. Port Phillip City Council [2006] VCAT 1923, I am not satisfied that the proposal includes the requisite outdoor smoking area as required by the new smoking legislation and the Ryan decision. In addition, I have major concerns about the potential amenity impacts of the proposal on the residents living to the east and south-east of the site, and the serious pedestrian safety risks that I consider would arise if tavern patrons were queuing and/or mingling on the abutting footpath area. When these problems are viewed in totality, my conclusion is that the proposal is fatally flawed and would be a poor planning outcome. Hence I have made orders affirming Council's refusal to support the proposal.

4 The basic nature of this appeal has been set out in the executive summary above.

5 On 2 November 2006 I heard submissions from all of the parties at the hearing. A copy of the written submissions are retained on the Tribunal file, along with the relevant photos, plans and other materials tendered during the hearing.

6 I indicated at the beginning of the hearing that I had already inspected the subject land and locality the day before the hearing. This included not only inspecting the subject land, but walking along a number of the local streets, and taking careful note of the relationship between the subject land and the adjacent major arterial roads and other uses.

7 Council's Notice of Refusal to Grant a Permit relied on the following grounds:

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The nature and location of the proposed use has the potential to create an unsafe pedestrian environment.

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The proposal is not consistent with proper and orderly planning for the area.

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The proposal would have a detrimental effect on the amenity of the area.

8 I also allowed the council to lodge as a supplementary ground of objection the issue of "compliance with the new tobacco legislation requirements". In other words, a further ground of objection raised by council was its view that the proposal fails to comply with the requirements of the relevant Victorian Government Regulations set by the Tobacco (Amendment) Act 2005, which will come into effect on 1 July 2007. In taking this point Council relied on the recent leading Tribunal decision of Ryan v. Port Phillip City Council [2006] VCAT 1923.

9 The subject land features a three storey commercial building which is built out to all of its boundaries. It was common ground at the hearing that the site has historically been used for many years as a Chinese restaurant known as the "Tai Ping Restaurant". Council advised that no planning permit has previously been issued for the use of the land as a restaurant, as council accepts that the restaurant use commenced prior to the introduction of planning controls. It would appear that the seating capacity of the former restaurant area is somewhere between 200 and 266 diners. The site has the benefit of an on-premises liquor license granted in respect of a restaurant. This liquor licence authorises the licensee supply liquor on the subject land between 10am and 11.30pm on Sundays, and otherwise (subject to more restricted hours on certain public holidays) between 7am and then 1am the following morning on any other day.

10 The site is located in the middle of the very busy St Kilda Junction, on the corner of Punt Road and Nelson Street. It has an overall area of 293 square metres and is currently vacant. Nelson Street has a mixed use character, with a greater degree of residential activity as one moves further east along the street from the appeal site. Similarly, Wellington Street to the south (which runs parallel with Nelson Street) has a mixture of commercial and residential uses, but in the context of a long term trend towards greater residential activity.

11 On the other side of Nelson Street from the subject land is the Queens Way underpass. To the north-west of the subject land (ie. on the other side of the arterial road) is the beginning of Queens Road which features office development. To the south-west of the subject land is the extension of St. Kilda Road plus the beginning of Fitzroy Street.

12 In relation to other existing hotels/taverns, it was common ground that there are two or three other such uses within a reasonable vicinity of the subject land. I understand that neither of the closest hotels (the Elephant & Wheelbarrow and the Windsor) are licensed to trade any later than 3.00 am.

13 As set out in the Application for Permit form, the proposal here is "Use as a Tavern, waiver of car parking and facilities and for the sale and consumption of liquor". The proposal includes various internal alternations, as part of the fitting out of the building for the new use. It is proposed that the upper level front-facing room be used as the "smoking area".

14 In the course of the hearing, Mr Dietrich volunteered that the cap on patrons could (in a spirit of compromise) be reduced from 400 to 300, and that the proposed operating hours could also be pulled back somewhat. By consent, I then made orders duly amending the application, with the varied operating hours to be as follows:

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a 7pm starting time 7 days a week;

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a 3am (ie. the following morning) finish time on Sundays to Wednesdays; and

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a 5am finishing time on Thursdays to Saturdays, including a "lock out" arrangement where no new patrons can enter the premises after 3am.

15 The subject land is situated within a Business 2 Zone.

16 Clause 74 of the Planning Scheme defines a "tavern" as follows:

Land used to sell liquor for consumption on the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, a music machine and gambling.

A tavern is a Section 2 use nested under "retail premises" requiring a planning permit here pursuant to clauses 34.02-1 of the planning scheme.

17 It is useful to clarify the permit triggers here, as follows.

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The proposed new use of "tavern" requires a permit under Clause 34.02-1 of the Planning Scheme;

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The proposed internal works required a permit under the Heritage Overlay, as the "internal works" column in the Schedule to the Heritage Overlay has been ticked;

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A permit is required under Clause 52.06 of the Planning Scheme to fully waive the relevant on site car parking requirements and also fully waive the necessary provision of bicycle facilities; and

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A permit is required for the sale and consumption of liquor pursuant to Clause 52.27 of the Planning Scheme.

18 Turning to the relevant overlay controls, the site falls within the Design and Development Overlay - Schedule 13. This control essentially involves protection of the view line to the Shrine, and is not relevant here as no external works are proposed. More relevantly, the site is also subject to a Heritage Overlay Schedule 232, being a site specific heritage control where the internal works column is ticked in the Schedule.

19 In relation to the specific planning controls and policies relied on by council, council referred me to cl.52.06 (Car Parking); cl.52.27 (Licensed Premises) and cl.52.34 (Bicycle Facilities).

20 In relation to the state planning policy, council relied on clauses 11.01 and 15.05. Mr Dietrich for the Applicant also referred to Clause 12 and Clause 17 of the Planning Scheme. Council also highlighted the following strategic document, although it does not form part of the planning scheme - "The City of Port Phillip Activity Centre Review - Future Directions Strategy Paper - January 2006". I was provided with the following quote from that document:

This centre does not have single, dual or triple roles. It is an eclectic mix of independent businesses without any coherent synergy between them. For example, the uses on the strip range from tattoo parlour to law firm and industrial pump distribution. Perhaps one defining synergy concerns the exposure offered by passing traffic. St. Kilda Road is one of Melbourne's major arterials and the location not only provides great access to the whole Metropolitan Area for any footloose businesses without the need to be in any particular neighbourhood. This presents once (sic) potential location where "Bulky Goods" retail development may be feasible.

21 With respect to council's Municipal Strategic Statement council highlighted the provisions at cl.21.04-1, 21.05-1, 21.05-6, 21.05-8, 21.05-10 and 21.05-11. There was some uncertainty as to precisely which of the various "neighbourhood areas" the site falls within, keeping in mind that the MSS/local policies break the municipality up into four to five "neighbourhood areas". The relevant plans are quite difficult to follow, in terms of where each of these designated neighbourhoods starts and finishes. However, I think little turns on this, as I consider that "MSS/local policy support" is not a key issue anyway in this appeal.

22 In relation to the relevant local planning policies, council focussed on council's Retail Centres Policy at 22.02, and highlighted that one of the general policies under this clause is to "Discourage new bar or tavern uses, except in association with existing food and drink premises located on the ground floor". However, having carefully examined the "Retail Land Use Framework Plan" at page 40 of Clause 21.05, I am satisfied that the site falls outside of the area shown as part of the municipality's "retail centres". Accordingly, I regard the locality within the site falls as having more of an "activity centre" rather than a "retail" character, and my finding is the Clause 22.02 does not apply to the proposal.

23 To avoid repetition, I will not repeat the submissions of the parties but focus on what I see as the key issues, as follows.

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whether or not the proposal complies with the new tobacco legislation requirements which will take effect from 1 July 2007 and the requirements of the leading decision of Ryan v. Port Phillip City Council [2006] VCAT 1923;

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the potential residential amenity impacts of the proposal, including the fact that the site cannot provide any on-site car parking; and

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pedestrian safety/traffic issues.

Does the proposal comply with the requirements of the new tobacco legislation & the recent Ryan decision?

24 As was highlighted in the recent Ryan decision and the publicity that it received, there are some major challenges associated with the whole community having to come to grips with the requirements of new smoking laws which come into effect on 1 July 2007. These new laws will prohibit smoking in enclosed licensed premises.

25 Ms Cincotta in her written submission on behalf of the council extensively quoted from the Ryan decision. I was also provided with a copy of a useful information brochure on the new tobacco laws prepared by the Department of Human Services.

Overview of previous cases on new smoking laws/what constitutes an "outdoor smoking area"

26 The Tribunal in the Ryan decision set down the main principles to be applied in cases such as this where there are planning proposals which involve licensed premises and the requirements of the new smoking laws which will come into effect from 1 July 2007. Ryan's case includes the following helpful comments at paragraphs 39 to 43 and paragraph 47 of that decision.

39 In general, we consider that a suitably designed and located outdoor area for smoking should be provided on the site of the licensed premises. By "suitably designed and located" we mean that the outdoor area meets the appropriate criteria in the tobacco laws and that its use will not give rise to any adverse off-site amenity impacts relating to noise, odour, or patron behaviour.

40 This may mean with respect to new uses requiring a planning permit that if a suitably designed and located outdoor area cannot be provided on-site, the use should not be permitted. Whilst this may seem harsh it is a consequence of the tobacco laws designed to protect occupational and public health by making licensed premises smoke free. There will be costs associated with such measures. Those costs cannot be avoided simply by pushing the attendant affects off-site and permitting smoking to occur in locations where noise will interfere with people's sleep at night or other adverse affects will be experienced.

41 We consider that a similar approach would also apply to existing uses, although recognised that it may not always be possible to implement this approach with the planning system. It would be up to the Director of Liquor Licensing as what conditions should be imposed when licenses are renewed or varied.

42 It may be argued that a requirement to provide an on-site outdoor smoking area undermines the tobacco laws requiring a licensed premises to be smoke-free. We disagree. The new tobacco laws do not ban smoking per se. They only ban it within closed areas because of the risk to health associated with people being in a smokey atmosphere. Smoking will still be permitted in outdoor areas.

43 As we said earlier, we are satisfied that a proportion of patrons attending licensed premises will want to smoke. We consider that licensed premises should therefore cater for these patrons on-site. If they can't then this is indicative that the premises are suitable to be used as licensed premises under this new regulatory regime.

47 As a general rule, we consider that where a use for a licensed premises requires a planning permit, patrons wishing to smoke must be provided for by one of the following means:

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In the case of small scale venues, the footpath or other area of the public realm may be used as an outdoor area to smoke subject to an appropriate management plan.

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There is an existing approved licensed area either on the site or off-site (on the footpath or otherwise in the public realm) that meets the criteria for being an outdoor area where people may smoke, subject to an appropriate management plan.

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In all other cases, a suitably designed and located outdoor area must be provided on the site where people may smoke. A management plan may or may not be needed depending on the circumstances. The outdoor area may or may not be within the approved licensed area; it doesn't matter.

27 The aforementioned useful brochure on the new tobacco laws includes the following useful summary regarding what constitutes an outdoor smoking area for the purposes of the new smoking laws.

Will outdoor dining and drinking areas be required to be smoke free?

The new law, commencing 1 July 2007, will not require outdoor dining and drinking areas to be smoke-free, unless the area has a roof in place and the total actual area of the wall surfaces exceeds 75% of the total notional wall area.

'Total notional wall area' means what would be the total area of the wall surfaces if the walls were: at the perimeter of the roofed area and continuous and of a uniform height equal to the lowest height of the roof.

Outdoor dining and drinking areas will include the following places if predominantly used for the consumption of food and/or drinks:

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a balcony or veranda;

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a courtyard;

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a rooftop;

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a marquee;

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a street or footpath; and

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any similar outdoor area.

Wall: A wall will include any structure or device (whether fixed or movable) that prevents or significantly impedes lateral airflow, including a window or door.

Roof: A roof will include any structure or device (whether fixed or movable) that prevents or significantly impedes upward airflow, including a ceiling.

What about when a balcony, courtyard, rooftop or other similar area has a roof and walls that cover more than 75 percent of the wall space?

If a balcony, veranda, courtyard, rooftop, marquee or footpath area has a roof, as well as walls that cover more than 75 percent of the total notional wall area then the area will be required to be smoke-free.

28 Some other cases on point that I am aware of, are as follows. Hameon Pty Ltd v Port Phillip CC (VCAT P1463/2006) was a conditions appeal in relation to a permit for a licensed function centre situated in an industrial area. The contentious condition was Condition 21, which in summary required the management of the premises to ensure that no more than 4 persons at any one time congregated outside the entrance to the centre. Presumably the intent behind this condition was that no more than four people could smoke outside at once. The permit holder criticised this condition as unnecessary and unworkable.

29 In the final result, Member Taranto ordered that Condition 21 be deleted, but on the basis that a different condition was amended to require management to take certain steps to encourage smokers to use the more isolated of the two streets next to the centre. In finding that footpath smoking was acceptable on this more isolated street, Member Taranto relied on:

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Council's support for this position and the fact that the nearest residential properties were some distance away;

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the more controlled nature of pre-booked activities at a function centre, compared to the more free-wheeling activities at for example a nightclub;

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the apparent absence of any previous complaints about the previous reception centre that had operated on the site.

30 In Lee v Stonnington CC (VCAT P1753/2006), Senior Member Baird similarly was considering the proposed use of an existing building as a tavern, in a location just off Chapel Street in South Yarra. She issued an interim decision on 27 October 2006, allowing the applicant an opportunity to lodge further information with the Tribunal regarding the proposed management arrangements for the premises. As part of her interim decision, Member Baird indicated real concerns about the proposed 3.00 am closing time, the emerging presence of other licensed premises in the immediate area, and the likely issues associated with patron behaviour off-site including smoking.

31 The Noise and Amenity Action Plan provided by the applicant pursuant to Member Baird's interim decision indicated that smokers will be directed to the footpath in front of the site and will be required not to impede pedestrian movement or create a nuisance. In reaching her final decision, Ms Baird indicated at paragraph 16 that her primary concern remains the control of patrons in this footpath area. In this regard, she highlighted the narrow nature of the footpath and the possibility (given this lack of footpath space) of activity spilling into the street or other nearby areas. At the penultimate paragraph of her decision, Senior Member Baird concludes that the proposal must fail due to what she considers an undue risk of unreasonable impacts from the proposed tavern on nearby premises.

32 The Tribunal decision of The Garden on Exhibition Pty Ltd v Melbourne CC (VCAT P1221/2006) involved a proposed tavern accommodating up to 460 patrons in two building structures and an open air beer garden at 275-285 Exhibition Street in Melbourne CAD. In refusing the proposal, the Tribunal discussed at pages 12 to 14 its concerns regarding the potential amenity impacts of the proposal, including the implications of queuing on the footpath area. With respect to the requirement for an outdoor smoking area, the Tribunal acknowledged at pages 14 to 16 that the proposal involved the availability of the beer garden to smokers, but expressed concern about the potential for "nuisance issues" if smokers nevertheless seek to smoke outside the premises.

33 Relying on the new smoking laws and the Ryan decision, Ms Cincotta on behalf of council argued that it is a "black and white" situation that the building on the subject land has been built out to all of its boundaries, and there are simply no outdoor smoking areas that would be available as part of the proposed licensed tavern use. Accordingly, Ms Cincotta urged the Tribunal to refuse the proposal simply due to the lack of this necessary outdoor smoking area.

34 In response, Mr Dietrich on behalf of the Applicant put forward the following submissions:

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at first instance, Mr Dietrich argued that the front facing room on the upper level of the relevant building should be regarded as an "outdoor smoking area" for the purposes of the new tobacco legislation, assuming the front facing windows of that room are at all times kept in an open position; or

•

in the alternative, Mr Dietrich argued that the Tribunal should alter the application to include provision for an outside smoking area on the footpath area along side the building.

35 In terms of these alternative submissions put forward by the Permit Applicant, Ms Cincotta criticised both as being inadequate and/or unworkable. With respect to Mr Dietrich's submission that the relevant front room at the upper level should be regarded as an "outdoor smoking area", Ms Cincotta argued that this flies in the face of the prescriptive provisions in the new tobacco legislation as to what constitutes an "outdoor smoking area". In other words, Ms Cincotta argued that the relevant upstairs front facing room has both a roof and walls that cover more than 75% of the total notional wall area, with the practical requirement that this front facing upper room is in fact required to be smoke-free and cannot be regarded as an "outdoor smoking area". With respect to any suggestion that the footpath area could be used as an outdoor smoking area, Ms Cincotta argued that this would be unworkable and unsafe, due to the fairly narrow nature of the footpath and the evidence provided by the objectors at the hearing regarding traffic safety issues with the high level of passing traffic.

36 Having considered these competing submissions, the Tribunal's own finding is that the front facing upper room relied upon by Mr Dietrich does not constitute an "outdoor smoking area" for the purposes of the new tobacco legislation and the requirements spelt out in the Ryan decision. In particular, I reject Mr Dietrich's suggestion that excluding the wall area occupied by the front windows will result in a situation where the remaining wall area will be less than 75% of the total notional wall area (thereby making the upper front room constitute an "outdoor smoking area"). Rather, from my inspection of the site and from the extensive photos provided to me at the hearing, I am satisfied that deducting the notional wall area taken up by the front windows will not even go close to reducing the total notional wall area below the benchmark 75% figure.

37 Hence my finding is that the upper front facing room does not constitute an "outdoor smoking area" for the purposes of the new smoking laws, but in fact constitutes an ordinary inside room of the tavern that the new tobacco legislation and the Ryan decision requires to be smoke-free.

38 In relation to Mr Dietrich's alternative submission that I should allow part of the adjoining footpath area to be used as an outside smoking area, I see this in the circumstances as a desperate suggestion that lacks any credibility.

39 As a starting point, the Ryan decision indicates that a footpath smoking area is only appropriate for a "small scale venue". Even with the cap on the potential patronage of the proposed tavern reduced from 400 to 300, I am not satisfied that premises serving up to 300 persons can be reasonably described as "small scale".

40 In addition, I regard the suggestion that the abutting footpath area can be used for smoking as entirely unworkable for the following reasons.

41 Firstly, the footpath areas along side the building on the site are relatively narrow. There would be obvious logistical issues with trying to accommodate tables and chairs for an outdoor smoking area on this narrow footpath area or otherwise create a separate smoking area. I accept that there would be problems here with the minimal area that would then be left for ordinary passing pedestrian traffic, together with potential problems if patrons need to queue outside the building at times of high demand to get inside. I note that the Tribunal in the Lee decision was also concerned about the narrow aspect to the footpath in question, and that the Tribunal in the Garden in Exhibition decision saw logistical issues with patrons queuing on the footpath area.

42 Secondly, this is an unusual site, in that it is located in the heart of a very busy junction of several major roads. An inspection of the site reinforces that there are huge levels of traffic passing very close to the site, often at considerable speed. The relatively narrow nature of the footpath makes this situation worse (compare this with the widened footpath area next to the Elephant & Wheelbarrow hotel further south-west along Fitzroy Street)[1]. In this regard, several objectors who made submissions at the hearing emphasised the real risk of vehicles mounting this footpath area if vehicles travelling at considerable speed close to the subject land lose control. I was told that a dramatic example of this problem was a fairly recent accident where a vehicle crashed into the front windows of the nearby scooter/bicycle shop two lots further along from the subject land.

43 Thirdly, I consider that I need to give some degree of weight to the reality that many pedestrians today do not necessarily utilise the traffic lights at the nearest intersection to cross even a busy road, or otherwise may start crossing the road at a signalised intersection before the "green person" light comes on. One only needs to walk around Melbourne CBD to see plenty of evidence of this. The risk of this impulsive pedestrian behaviour would be worse on those occasions where any of the patrons of the proposed tavern are influenced by alcohol.

44 These factors outlined above point to any proposal for an outside smoking area on the abutting footpath area being quite inappropriate and unworkable, and in all likelihood unsafe.

45 Having rejected both of the positions put forward by Mr Dietrich in terms of the compliance of the proposal with the new tobacco legislation, my overall finding then is that the proposal fails to meet the requirements of this new legislation and the Ryan decision.

46 In relation to the Hameon decision mentioned above, I see that decision as turning on its own facts, and as not offering any assistance to the Applicant here. The important differences here are that:

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unlike in Hameon, Council here is not supporting any form of outside smoking;

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the preferred outside smoking location in Hameon was a quiet street with no residential properties nearby, whereas in the circumstances here it is a very busy intersection with significant residential activities close by in Nelson and Wellington Streets;

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unlike a function centre, the tavern use proposed here with relatively late operating hours can be expected to generate many casual visits by patrons, making crowd control more difficult. This is in the context of the objector submissions at the hearing including that the Nelson Street residents already face substantial noise and behaviour problems with late night rowdy hotel patrons walking from one local hotel to another.

Potential residential amenity impacts/pedestrian safety issues

47 Beyond the failure of the proposal to meet the requirements of the new smoking laws and the Ryan decision, I also have major unresolved concerns about the "residential amenity" and "pedestrian safety" aspects of the proposal.

48 With respect to residential amenity issues, even allowing for the reduced patron cap of 300 persons, I still see a major risk here that the proposed tavern use would cause substantial amenity disruption to the considerable number of nearby residents, notably those living in Nelson and Wellington Streets. While I acknowledge that both of these streets have a mixed use character, it is significant that the relevant council local policies are promoting more rather than less residential activity in this locality[3]. I am also conscious that even the proposed compromise hours of operation involve trading until 5.00 am on certain days of the week, which is two hours into the night later than either of the nearest hotels are licensed to trade.

49 I give weight here to the fact that the objectors have highlighted existing residential amenity tensions, in terms of persons walking along Nelson Street at late hours from one local hotel to another, and apparently causing problems with excessive noise, inappropriate behaviour and occasional property damage. I note that Nelson Street seems a logical pedestrian route if a patron was walking from the Elephant & Wheelbarrow hotel to the nearby Windsor Hotel on the other side of the Dandenong Road underpass (or vice-versa).

50 These potential patron behaviour issues need to be viewed in conjunction with the fact that the proposal cannot provide any on-site car parking. Whilst I acknowledge that many perspective patrons of the tavern will use a taxi to get home, it seems reasonable to still anticipate that a group of patrons will drive to the site and look for a nearby on-street car park. Whilst on the one hand I acknowledge that Council's traffic department did not object to the lack of any on-site parking, on the other hand I would expect that the new tavern to significantly increase the demand for on-street parking in Nelson and Wellington Street (meaning more noise and less available on-street parking for the residents of those two streets).

51 Turning to pedestrian safety issues, I am very concerned (with or without the requirements of the Ryan decision and the new smoking laws) at the real potential for pedestrian accidents associated with the proposal. In other words, I see the fairly narrow footpath area, the large volumes of passing traffic (often at speed) and the likelihood of queuing outside the building as together creating a real risk of pedestrian activity spilling from the footpath onto the road in this exceptionally busy junction location.

52 To avoid duplication, I refer to my comments at paragraphs 41 to 43 above, regarding factors which I see as central to the pedestrian safety problems that I anticipate would arise from the proposal. These risks are obviously exacerbated if any patrons of the facility are unduly affected by alcohol or where there is any reckless driving by passing motorists.

53 I have identified significant problems with the proposal, in terms of a failure to provide a requisite outdoor smoking area, likely residential amenity issues, and real pedestrian safety risks. Whilst each of these problems in isolation are not automatically fatal for the proposal, my finding is that the proposal would be a poor planning outcome when these problems are considered in totality. Accordingly, I am not satisfied that the proposal is deserving of receiving a permit, and I have affirmed Council's Notice of Refusal to Grant a Permit.

[1]2 This widened footpath area has been utilised for outdoor seating for patrons of this hotel.

[3]4 The "Strategic Land Use Framework Map" at pages 8 and 9 of Clause 21.04 shows (as best I can read the map0 that the site forms part of an area where there is "Opportunities for new residential growth". This is reinforced by the "Residential Land Use Framework Plan" at page 5 of Clause 21.05 also showing the site as being within an area where there are "Opportunities for new residential growth".