The proposed convenience restaurant would serve broad catchment that may include the immediate local community (however narrowly "local" may be defined) as well as passers-by and persons who specifically drive or walk to it. That is not, however, automatically fatal to this Application. Rather, it may be one reason why the provisions of the Residential 1 Zone require such uses to only be considered if they adjoin or have access to a Road 1 Zone and why Clause 52.20 requires the suitability of access to a main road to be assessed. A main road is usually a location where traffic infiltration through local residential streets and other amenity issues associated with wholly residential precincts can be minimised.

Therefore, while I accept that a regional facility is not encouraged by the purpose of the Zone there may be circumstances where facilities with a wider catchment, and possibly a regional catchment, can be acceptable. The determinative issues in this Application instead relate to the consistency of the proposal with the policy directions of the Scheme, visual impact, off- site amenity considerations, and parking and access which I refer to below.

1. I agree with the Tribunal that the fact the proposal serves a wider catchment does not mean it cannot be provided in the Residential 1 Zone_._ In McDonalds Australia v Knox CC[3] the Tribunal stated, "The acceptability of a site for a convenience restaurant in a Residential Zone is always dependent upon the context of that site".
2. I must access this proposal in the context of the policy, provisions and specific site opportunities and constraints. I consider that the key considerations before me are:
   • Is the proposal generally consistent with policy?
   • Is the location appropriate?
   • Is the proposal responsive to the residential context?
   • What is the impact on the amenity and character of the area?
   • What are the off-site amenity impacts?
   • Are car parking and traffic considerations appropriately addressed?

Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Greater Bendigo Planning Scheme, I have decided to affirm the decision of the responsible authority. My reasons are set out below.

1. The applicants for review submitted that the proposal fails on a policy assessment. The Greater Bendigo planning scheme provides a range of policy in respect to the use and development of this area. I summarise the broad policy context as follows:
   • The site is zoned for residential use and as such forms part of the established White Hills area.
   • Convenience restaurants are encouraged to locate within or adjacent to commercial centres (21.07-3).
   • In clause 22.08, there is clear discouragement of the establishment of additional linear development along the highway.
   • Clause 22.08 seeks that non-residential land uses are provided in commercial and business zones or on sites with non-conforming uses in accordance with the planning scheme.
   • Commercial uses are directed to the area between Howard and Hall Streets, particularly commercial display uses (Clause 21.07-3)

• The Structure Plan[4] notes that there are shops and convenience stores located along the Midland Highway including takeaway for premises and convenience stores that operate in association with petrol stations, some of which are located in residential zones.
• Clause 21.07 takes into account these isolated stores and facilities as contributing to part of the total economic development in the City.
• I have discussed the proposals response to neighbourhood character policy separately below.

Essentially the policy provisions of the scheme do not overly support or reject the proposal when taken as a whole. This is a residential area, but there is acknowledgement that other uses do occur, and while highway development is encouraged to this area between Howard and Hall Streets, it is preferred that in the residential zone that such uses are limited and do not result in ribbon development. What I think it comes down to is the location and context of this site.

1. Council has relied on this former service station use in its support for the proposal. Ms. Patterson submitted that the service station is long gone and the fact that the land is zoned residential, would "give rise to legitimate expectations that the site would be used for residential purposes". I do not consider it reasonable for residents to expect that the subject land would revert to residential use, despite the 8-year long closure of the former service station. On my site inspection, I noted that the site has the appearance on the ground as a vacant former commercial site. This is emphasised by the right hand turn facilities on the highway. The residential zone allows a wide range of non-residential land uses subject to a planning permit.
2. In the context of the current condition of this land, I do not consider that this is an intact residential area. While the immediate neighbours are residential and the east side between Hall Road and Howard Street is generally residential, the overall feel on the ground is of a mix of residential and commercial. To ignore one side of the road or the area to the south of Hall Road is in my view limiting the assessment of the site context to only a small portion of the picture.
3. I consider that the site can be considered a candidate for a non-residential land use as:
   • The land is large and clearly appears as a vacant former commercial site;
   • The land has significant frontage to a main road, with established right hand turn lanes; and
   • The land is proximate to non-residential uses and zones, particularly which on the west side of the highway.
4. However, this said, the site is constrained by its residential abuttal, particularly that to the south (580 Napier Street). Provided any future development can address the reasonable amenity expectations of these residential properties, there is no reason why the land cannot be used for a non-residential land use. The fact that the land is residentially zoned and adjoins residential dwellings sets a much higher test to be applied to the site.

1. I consider that there are two important aspects to this assessment, firstly the relationship of the development to the highway and the travel experience and secondly the impact on the residential area.
2. In respect to the relationship of the development to the highway environs, I have no concerns. As set out above, the experience along the Midland Highway both in a north and south direction is a mix of commercial and residential land use. From the south heading north the site sits in the context of the motel on the west side and from the north heading south in the context of the commercial area opposite the site.
3. Clause 22.26 sets out residential character objectives for White Hills[5]. In respect to the impact on the residential area, it is clear that the proposal will be very different from its neighbours, but that does not mean that it cannot be absorbed within the overall character of the area. In terms of the built form proposed, while it is commercial, it is generally low scale. I did have some concerns about the building colours and finishes in respect to the muted tones of the weatherboard dwellings. The permit applicant indicated some willingness to tone down the black facade and the stark white canopy of the drive thru. I consider that this requirement should be included in the planning permit conditions.
4. I note that Council's urban designer suggested that the building align more closely with the residential setbacks. On this site, on the bend in the road, I do not consider that this is necessary. I note that the White Hills precinct character description recognises the variation in the siting and front boundary treatment of houses.
5. The desired future character is that "the spacious garden suburb qualities of the streetscape will be maintained". While the proposal results in the loss of a significant tree, there is opportunity for the provision of additional landscaping. I would like to see additional canopy planting at the frontage of the site, and have required this by way of condition. I also note the opportunity for new street trees.

1. Despite the former use of the land, neighbours have enjoyed outlook over vacant land for the past 8 years. Any development on this site will create a noticeable change in the present residential amenity. The Applicant for Review submitted that the use would have an unacceptable amenity impact on the adjoining residential properties.
2. Convenience restaurants can have a range of amenity impacts as set out in Clause 52.20. These were discussed in McDonalds Australia v Knox CC (2011) VCAT 142 as follows:

Convenience restaurants do have the potential to contribute to adverse off site amenity impacts as a consequence of the combination of traffic movements onto and out of the site, late night operation, lighting, the congregation and movement of people on the site, the generation of noise and litter. The applicant company does have an established reputation for adopting and implementing management practices aimed at minimising the adverse affects of these uses and there is no reason for me to conclude that similar approaches would not be applied here.

1. I am satisfied that the following amenity impacts are addressed in this proposal:
   • The built form is generally low scale and well setback from neighbouring properties;
   • The property to the north enjoys some 17m separation from the common boundary. A 3m wide landscaping strip and acoustic fence are proposed on the subject site which will limit amenity impacts to the north.
   • There are no overshadowing impacts;
   • The proposed boundary fencing (1.8m acoustic timber fence) is consistent with standard residential fences;
   • Direct overlooking is restricted by the proposed boundary fencing and associated boundary landscaping;
   • Lighting can be designed to avoid spill to neighbouring properties;
   • Patron management, while a key issue for these uses has been addressed in the conditions;
   • Odour from cooking is managed through other legislation; and
   • Litter is addressed in the conditions.

However, there were several aspects of amenity I felt were not adequately addressed. These included the timing and length of general activity on the land and the interface with the property to the south.

1. Mr. Govenlock in his evidence recommended restricting the hours of operation from around 5am to 11pm, whereas the original application as supported by Council proposed 24 hours. Ms. Patterson submitted that the reduced hours of operation were still incompatible with residential amenity. She submitted that late night trading would occur 7 days a week, with residents offered no respite from the activity.
2. I consider it important that some respite from the activity is provided generally in accordance with the recommendations of Mr. Govenlock. However, I consider that the 5am opening time is too early in this site's context. Having inspected the site early on a Saturday morning I was surprised by the low level of activity on the highway and in the broader precinct. While it may be slightly busier during the week, I consider a 6am opening time would be more appropriate at this time. I have accordingly included a condition on the permit limiting the hours of operation although I have varied the wording suggested by the permit applicant.
3. In addition, I consider that the hours in the draft permit for loading and unloading and for waste collection are excessive. I expressed this concern at the hearing. Mr. Townshend indicated that the permit applicant would be willing to reduce these hours. I consider that these activities should be restricted to normal business hours.

1. The dwelling to the south is constructed with north facing windows proximate to the common boundary. The design response has placed the food collection part of the drive thru abutting this boundary. While the 3-6m landscape setback provided is generous, I questioned why it narrowed to 3m opposite the habitable room windows of the adjoining property. A larger setback at this location to the drive thru would be more responsive to the circumstances of the neighbouring dwelling.
2. Mr. Hunt acknowledged that there was an excess of required car parking on site and that bays 16 and 17 could be used in order to relocate the waiting bays if required to achieve a greater width of landscaping adjacent to the habitable room windows of the neighbouring dwelling. While not considered ideal from an operations point of view, this small change would allow a 6m separation to be provided at this point. It would also provide additional room to integrate the additional acoustic protection suggested in the evidence of Ms. Hui.
3. Ms. Patterson submitted that noise associated with the proposed use would have a significant impact on the adjoining property to the south. I note that Ms. Hui provided her evidence that the drive thru was generally quieter in terms of general traffic noise that the car parking areas. Her evidence demonstrated that with the standard 2m acoustic fence noise would be sufficient to limit noise to the adjoining properties consistent with guidelines. McDonalds in addition offered a second wall/canopy structure 3m inside the property boundary, at about 2.2m in height with an angled 300 or 600mm canopy to ensure that sleep disturbance criteria was more comfortably met. I support this second acoustic wall/ canopy in the form generally suggested by Ms. Hui. I do not consider that it needs to be any larger, as it is mainly addresses the habitable room windows on the adjoining property.
4. With the relocation of the waiting bays, there is the opportunity to move this second canopy further from the common boundary and to incorporate an area of significant landscaping adjacent to the neighbour. This landscaping can have an open form to allow light to the north facing windows. This is significantly different to the case of McDonalds Australia v Knox CC (2011) VCAT 142 where a 3m high acoustic fence was proposed closer to the common boundary. With these changes, I consider there will be an acceptable amenity outcome for this neighbour.

1. I was assisted by the evidence of Mr. Hunt in respect to traffic and car parking considerations and I can see no reason on traffic grounds to refuse this proposal. The site has established access to the highway and noting the conditions required by VicRoads for egress from the site to the left only. Parking along the frontage of the site and neighbours is restricted by the width of the lanes and the proposal provides an excess of car parking on site.

Do any other matters warrant rejection of the proposal?

1. Several other matters were raised in submissions and the objections originally lodged with the Council. None provides the basis for rejecting the permit application.

1. In having regard to the conditions to be included on the permit, I have taken into account the Notice of Decision and the submissions of the parties.

1. For the above reasons, the decision of the responsible authority is affirmed. A permit is granted subject to conditions.

1. This is an Application for Review of conditions. At the commencement of the hearing, the Permit applicant requested that the Tribunal grant a consent order for this matter. Council as the only other party to the application for review agreed to amended conditions of the signage permit.
2. I reserved a decision on the consent order until the completion of the hearing of the joint matters. Based on the information now available to me, I consider it is appropriate to make a consent order.

[1] I was advised that the site was a Caltex Service Station which ceased operation in 2004.

[2] [2004] VCAT 522 (26 March 2004)

[3] [2011] VCAT 142

[4] Northern Corridor and Huntly Local Structure Plan Feb 2005

[5] The subject land is within Precinct 3 (WH3)