1. A neighbourhood activity centre is located directly opposite the review site on the eastern side of Kathryn Road. The proposal is a complementary use to that activity centre and will benefit the functioning and viability of that centre. 2. The location of a non residential use in a residential zone adjacent to an activity centre is supported by the local policy framework of the planning scheme. 3. A non residential use in the form of a child care centre has previously been approved on the site. 4. The proposal's built form is low scale and understated, and incorporates generous landscaped setbacks. The proposal responds appropriately to the character of the neighbourhood. 5. The proposal can demonstrate substantial compliance with the decision guidelines of Clause 52.20 of the planning scheme which apply specifically to the consideration of applications for convenience restaurants and take away food premises in residential zones.
2. Mr Townshend relied on the evidence of Mr Govenlock on town planning matters, Mr Hunt and Mr Davies on traffic management issues, Ms Hui on acoustic issues, and Mr Patrick about the adequacy of the proposed landscaping.
3. The Council and the objectors submit that the proposal is not supported by the policy framework of the planning scheme and the zone provisions. The amenity impacts of the proposal are in their submission not acceptable. 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 are not consistent with a reasonable expectation of residential amenity.
4. While the Council is generally content with the proposed traffic management, objectors continue to express concern about this aspect of the proposal.
5. It can be appreciated from a consideration of the conflicting submissions presented, that a decision on this application necessitates a balancing of differing views and opinions, and also a consideration of planning scheme policies and objectives which seek to achieve quite different outcomes. In this respect the issues in this case which need to be decided are typical of the issues confronted by Councils and on review the Tribunal, in most planning cases[1].
6. Both Mr Townshend and Mr Rantino referred me to a decision of the Tribunal[2] also involving an application for a convenience restaurant in a residential zone in which the Tribunal held that it must follow the policy framework and work through the policies to balance the relevant goals and objectives of those policies.
7. I agree with Mr Rantino that the review site is a suitable site for a range of uses consistent with its Residential 3 zoning. These uses include of course medium density housing and a child care centre for which a permit has previously been granted. Mr Rantino submits that this form of development is the optimal or preferred use of the site. A convenience restaurant is, in his submission, a use which is inconsistent with the direction provided by the planning scheme.
8. The suitability of the site for medium density housing or similar was not contested by Mr Townshend. He submits however that this is not a case in which the provisions of the planning scheme are so weighted toward a residential development outcome that no other permissible use can be contemplated on this site. In his words "this is not a Doncaster Hill case"[3]. Mr Townshend also referred to and relied on the Tribunal's findings in McDonalds Australia Ltd v Stonnington CC [2009] VCAT 749. In that case the Council which had refused the application for a convenience restaurant in an activity centre on a site zoned Business 2, submitted that the strategic framework of the planning scheme supported the development of the site in that case for student housing, and that a convenience restaurant on that site would be a lost opportunity and an underdevelopment. The Tribunal rejected that submission and found that because of the general nature of the policy it could not be relied on to identify individual sites within centres as sites for which the construction of student housing represented the only acceptable planning outcome.
9. Mr Townsend submits that the circumstances in this case are akin to those in the Stonnington case in that the policy support for a mixed use or medium density housing development on this site is of a general nature only. He submits that a convenience restaurant on this site does not unacceptably compromise the achievement of housing policy objectives for this locality.
10. This is not a case in which the panning scheme strongly encourages a particular land use or development outcome to the exclusion of practically all others. It is important that I emphasise therefore that this application has not failed because a convenience restaurant is not the optimal use of the site.
11. This proposal has failed because it does not achieve an acceptable outcome.
12. The suitability of a site for a convenience restaurant is strongly influenced by the characteristics and context of that site. The decision guidelines of Clause 52.20 which relate specifically to convenience restaurants and take away food premises in residential zones, emphasise the need for careful consideration to be given to the location of the site and its proximity to residential uses, the amenity and character of the surrounding land uses and the neighbourhood generally. The Tribunal has also emphasised the importance of site location and context for convenience restaurants in residential areas[4].
13. The location and context of this site does not support the grant of a permit for this proposal. Nor am I satisfied that the planning scheme provisions and policies support the proposal.
14. My primary concern with this proposal is with the amenity impacts. 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. I also acknowledge that the proposal does incorporate the landscape setbacks required by the planning scheme and, with the exception of a worse case scenario for sleep disturbance criteria, compliance with acoustic standards are also met[5].
15. The achievement of compliance with acoustic standards does however necessitate the construction a 3.0 m high acoustic fence supplemented by a 2.4 m high canopy enclosing the drive through along the northern and western alignment of the site. An acoustic barrier of this scale provides me with an indication of this site's unsuitability for the proposed use. The level and scale of that treatment represents a poor residential interface for a site in a primarily residential context. I am not persuaded that landscaping between the barrier and the property boundary is sufficient to convert that treatment into an acceptable one.
16. The ability to show compliance with objective amenity standards does lend weight to the applicant's case in this matter, but ultimately the assessment of amenity impacts will inevitably involve a degree of subjective judgement to determine whether a proposal is acceptable.
17. In this case the applicant submits that any subjective assessment of amenity impacts should lead to a conclusion that the proposed use on this site is acceptable because the amenity of existing residents on the neighbouring property to the west is already adversely influenced by the dwelling's abuttal to a main road, and because of the dwelling's proximity to the neighbourhood activity centre. It was Mr Govenlock's evidence that the amenity expectations of the residents of that dwelling (the D'Ademo property) must be tempered because of those factors. Mr Govenlock also stated that with respect to the vacant property to the north on which a permit has been issued for four dwellings along the immediate interface with the review site, future residents of those dwellings will have the benefit of prior knowledge of the convenience restaurant and will make decisions about acquiring or renting those dwellings with that knowledge.
18. The amenity expectations of the D'Ademo's certainly need to be informed by factors such as those identified by Mr Govenlock, but in this case those factors are not sufficient to persuade me that this proposal is acceptable. While the D'Ademo's dwelling does abut a main road, the dwelling is set well back from the current alignment of Ferntree Gully Road and I was not presented with any evidence or submissions to the effect that the amenity of properties abutting the road are significantly compromised and not suited to ongoing residential use. Similarly, the D'Ademo dwelling does not abut a business zone or industrial zone. It abuts a residential zone. The long accepted principle that the amenity expectations of residents of dwellings abutting or located within non residential zones must be lower than residents whose dwellings are not so encumbered, does not apply here.
19. The D'Ademo's amenity expectations are entitled to be informed by the provisions of the planning scheme. While a convenience restaurant is one of a number of non residential uses permitted in the zone, the Council's policy for non residential uses in residential areas[6], provides some guidance as to the type of uses which might reasonably be considered acceptable on a site such as the review site. I commented during the hearing that this policy appears to have inherent tensions within it in terms of the outcomes it seeks to achieve. For example while the Council submits that the current proposal is not supported by the policy because the policy seeks to limit the intrusion of non residential uses into residential streets and to protect the amenity of residential areas, it also encourages non residential uses to locate on the periphery of activity centres and on arterial and collector roads. The review site clearly meets these locational criteria. The applicant submits that the proposal is consistent with the local policy.
20. On balance however I agree with Mr Rantino's submission that the detailed provisions of the policy at Clause 21.07-2 must be read in conjunction with the preamble at Clause 21.07-1 and that the purpose of the policy in allowing for the establishment of non-residential uses on the periphery of activity centres, is that it provides the opportunity for a buffer between business and residential uses.
21. The proposal does not achieve an outcome which is consistent with the policy because the proposal extends a commercial activity operating into the night[7] onto a residential site which has direct residential abuttals. This is not a use which achieves a buffering between residential and business uses.
22. I note that the policy does contemplate late night uses where they are located near other compatible late night uses. While I agree with Mr Govenlock's evidence that late night uses could operate within the Knoxfield neighbourhood activity centre, the centre currently comprises a small supermarket, offices, a pharmacy, take away food and convenience shops. It is not a centre in which compatible late night uses could reasonably or typically be expected to locate. The proposal is not supported by this provision of the policy.
23. With respect to the property to the north, I accept Mr Govenlock's evidence although I note that future resident's prior knowledge of an unacceptable use on a neighbouring property is rarely a sufficient basis to justify the approval of that unacceptable use. It can only ever be one factor which warrants consideration.
24. The applicant identified a range of other considerations in support of the proposal, however none of these are sufficient to override my findings that a permit should not issue. For example, while I accept the material presented that indicated that economic benefits could be expected to flow from the convenience restaurant to the activity centre and the wider community, these are not benefits which are necessarily tied to or related to a convenience restaurant being located on this specific site. The material presented has not persuaded me that the identified benefits are such that they outweigh any costs (in the form of amenity impacts for example) or contribute to the achievement of a net community benefit.

1. It follows from the above reasons that it my conclusion that the decision of the responsible authority should be affirmed and no permit be granted.

[1] The need to balance competing planning scheme objectives and policies is recognised in Clause 10.04 of the State Planning Policy Framework which states that:

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

[2] McDonalds Property (Australia) Pty Ltd v Banyule City Council (1999/19736) (3 VPR 128)

[3] This is a reference to the decision of Deputy President Gibson and Member Naylor (Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445) in which the Tribunal found that a proposal for a one and two storey building for a single use on a property in Doncaster Hill would be an underdevelopment and would unacceptably compromise the achievement of policy objectives and built form and land use controls for individual properties in that locality.

[4]See for example McDonalds Property (Australia) Pty Ltd v Banyule City Council, opcit.

[5] It was Ms Hui's evidence that non compliance with sleep disturbance criteria would not be achieved for the worse case scenario but that this condition would still be acceptable because it is an existing condition resulting from the nearest residential neighbour's proximity to Ferntree Gully Road.

[6] Clause 21.07-1 and Clause 21.07-2 of the Know Planning Scheme

[7] The applicant indicated a preparedness to accept a permit condition limiting the hours of operation to 11.00 pm.