The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for a winery at 26 Merricks Road, Merricks generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit (the plans must be drawn to scale with dimensions and three copies must be provided). The plans must show:

(a) the area to be licensed delineated on the plan where liquor will be consumed;

(b) a landscape schedule for the restaurant & winery area including the car park area nominating predominantly indigenous native plants to be planted, their location, species, quantity/density, size at planting/maturity and method of maintenance and watering;

(c) the layout and construction details of the access road, including a sealed road surface from Merricks Road to Coolart Creek, signage and speed control devices.

(d) three fifty metre gaps in the cypress hedge being established adjacent to the southern boundary of the site.

* detailed plans must be provide to and approved by the Responsible Authority showing the proposed method of treatment and disposal of all waste generated by the permitted winery, and;

* an Environmental Management Plan in relation to the permitted winery, prepared in consultation with the EPA, must be provide to and approved by the Responsible Authority;

3. The layout of the uses on the endorsed plans must not be altered without the consent of the Responsible Authority.

4. Not more than forty seats shall be made available for the use of the public within the restaurant which forms part of the permitted winery.

5. Except with the further consent of the Responsible Authority the use may operate only between the following times:

Monday to Sunday (other than Christmas Day & Good Friday):-

6. A sign shall be erected at the property entrance indicating that buses are not permitted on the land, and the operators of the permitted winery shall use their best endeavours to ensure that buses are not used to bring patrons to the winery to the satisfaction of the Responsible Authority.

7. This permit shall expire any time that the agricultural use of the land for the purposes of a vineyard ceases to the satisfaction of the Responsible Authority.

8. Unless with the further consent of the Responsible Authority no wine other than wine that is primarily produced (80%) from grapes grown on the land may be sold from the land.

9. Unless with the permission of the Responsible Authority, landscaping works as shown on the endorsed plans must be completed before the use approved by this permit starts. The landscaping must then be maintained in accordance with the endorsed plan. All work must be to the satisfaction of the Responsible Authority.

10. The area set aside for landscaping must be used for no other purpose unless with the permission of the Responsible Authority.

11. Prior to the commencement of the use approved by this permit the vegetation within the road reserve on the south side of the access shall be trimmed to improve sight distances to the satisfaction of the Responsible Authority. Inspection and supervision by Council's conservation officer should be arranged prior to the commencement of these works.

12. Before the use approved by this permit starts, the areas set aside for the parking of vehicles, access lanes and driveway as shown on the endorsed plans must be constructed in accordance with the endorsed plan to the satisfaction of the Responsible Authority.

13. Parking areas and access lanes must be kept available for these purposes at all times, and must be maintained to the satisfaction of the Responsible Authority.

14. 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.

15. Signs not greater than 0.3m2 must be provided directing drivers to the area set aside for car parking. The signs, their location and maintenance must be to the satisfaction of the responsible authority.

16. The winery pavilion must be designed to cater for the access needs of the disabled and a disabled car space must be provided adjacent to the winery to the satisfaction of the Responsible Authority.

17. All areas of the development must be drained to the satisfaction of the Responsible Authority.

18. the amenity of the area must not be detrimentally affected by the use or development, through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any buildings, works or materials; emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and

19. Sound levels emanating from the land must not exceed those required to be met under State Environment Protection Policy's interim guidelines for control of noise from industry in country Victoria (EPA 1989), and N-2 (control of music noise from public premises) whichever is the more restrictive.

20. Air-conditioning or other plant and equipment must be baffled to prevent nuisance or annoyance to persons in dwellings nearby (or adjoining land).

21. External amplified public address or speaker systems must not be installed on the premises unless with the written permission of the Responsible Authority.

22. No live music or amplified music other than light background music shall be played either within the restaurant building or outside unless with the written permission of the Responsible Authority.

23. All wastewater from the approved development/use must be disposed to an approved wastewater disposal system to the satisfaction of the Responsible Authority located at least 60 metres from any streamline, watercourse or dam.

24. The premises must be registered with the Responsible Authority pursuant to the requirements of the Food Act 1984.

25. Waste water and pulp (from grape skin and stems) generated from the processes of wine making on the land must only be irrigated onto the vines at the premises or other approved method of waste disposal to the satisfaction of the Responsible Authority.

26. All wastes, remnants of solid waste materials used or produced on the land must be stored and removed from the land and disposed of to avoid any nuisance, pollution or loss of amenity to the locality to the satisfaction of the Responsible Authority.

27. Deliveries to and from the land (including waste collection) must only take place between 7am and 7pm Monday through to Sunday.

28. This permit will expire if one of the following applies:

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

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

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Nicholas Tweedie, Barrister, appeared on behalf of the Responsible Authority.

Mr Egils Stokans, Solicitor, appeared on behalf of a number of Respondent/Objectors.

The following Respondent/Objectors appeared on their own behalf and on behalf of their families:

Mr Jeremy Gobbo Q.C. with Mr Adrian Finanzio, Barrister, appeared on behalf of the applicant for review and permit applicant. Mr Gobbo and Mr Finanzio called Mr Darren Taitoko, Landscape Architect, Ms Kate McNally, Traffic Engineer, and Mr Shayne Linke, Town Planner, as witnesses in support of his submissions.

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time for a winery incorporating wine making, cellar door tastings and sales, and a restaurant on land containing the newly developing vineyard at Merricks Road in Merricks. Prior to the hearing of the Application for Review , the Responsible Authority decided that had it not been for the Application for Review it would have issued a notice of refusal to grant a permit for the following reasons:

"1. The restaurant does not satisfactorily demonstrate a direct linkage to rural activities that are compatible with the natural and cultural heritage values of the area.

2. The restaurant capacity is too large in reference clause 22.07 (commercial and industrial uses in rural areas) and the location of the proposed development.

3. The proposal incrementally contributes to the over development and commercialization of this sensitive and amenable rural area.

4. The proposal fails to meet the purpose of municipal strategic statement notably retention of the Peninsula's rural amenity and sense of place.

5. The proposal fails to address the concerns raised by EPA regarding the proposed wastewater treatment system and effluent disposal system/reuse and management.

6. The proposal would detrimentally impact on the adjoining dwellings and rural land.

7. The proposal will impact upon the amenity, safety and enjoyment for users of the adjoining Merricks-Red Hill Trail."

2. The parties and witnesses at the hearing of the application for review made both written and verbal submissions. A number of photographs, plans, a video, and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and surrounding land in the presence of a number of the parties on the 2nd day of hearing.

3. The following extracts from Mr Linke's submissions provide usefully succinct descriptions of the site, the locality and the proposal:

"The review site is a battle axe lot which has frontage to Merricks Road of 10.58 metres. The 'handle' of the lot is approximately 780 metres long with the review site expanding beyond this point to have a fairly regular configuration with a width of approximately 280 metres and a length of about 680 metres. The overall area of the land including the 'handle' is 20.68 hectares.

The subject land is located on the west side of Merricks Road approximately 460 metres north west of its intersection with Frankston-Flinders Road.

The land generally has a south to north slope and at present approximately 4.2 hectares of the site is under vine. The vines are generally planted on the upper part of the slope, that is away from the Coolart Creek, which runs along the northern boundary. The vines contain a mix of pinot noir, shiraz, pinot gris and riesling grape varieties.

The only building currently on the land is a large shed, with an area of about 320 square metres, located generally in the south west section of the site.

The properties surrounding the review site are generally rural in nature and are used for a mixture of agricultural/horticultural uses. There are some smaller properties in the area that are used for residential purposes. The land in the area is undulating and is generally cleared of vegetation with the exception of sporadic copses of native trees and cypress rows along property boundaries.

The two lots adjoining the 'handle' of the subject land to the north and south are smaller lots that are occupied by dwellings only and are not used for rural pursuits.

The character of the surrounding landscape is typical of the Merricks area. The surrounding land uses, mix of native and exotic tree lines, low scale development and undulating topography all contribute to the attractiveness and scenic appeal of the rural landscape.

The locality's good accessibility and proximity to Melbourne, its attractive rural character and a cool prolonged autumn climate have contributed to the middle Peninsula becoming a popular location for vineyards and wineries which commonly include associated facilities such as wine tasting and eating areas. This form of land use makes a significant contribution to the tourism and recreational role of the region being popular destinations for visitors to the Peninsula.

A 20 metre wide bridle path runs along part of the southern boundary of the site.

It is proposed to expand the existing horticultural use of the land to include wine making, cellar door tastings and sales and lunch time restaurant. The uses are proposed to function primarily within the existing shed and the cellar door sales and lunch time restaurant are proposed to operate between the hours of 11:00am and 5:00pm, 7 days a week. The lunch time restaurant would seat up to a maximum of 40 people, both inside and outside - beneath the existing verandah on the northern side of the building.

It is proposed to extend the existing shed by an additional two 'ribs' (210m2) in a westerly direction to accommodate barrel storage facilities (NB. The extension to this shed was approved under Planning Permit No. P990793, issued 6 July 1999).

It is also proposed to construct a machinery and tools shed (105m2) which would incorporate male and female/disabled toilets for the use of the restaurant patrons. This proposed shed and toilet facility would be located approximately 33 metres to the west and on the same alignment as the existing shed on the site.

It is proposed to construct a car park for 20 vehicles to the south west of the existing shed, generally along the southern boundary of the land.

The combination of uses proposed constitutes a 'winery' as defined in the Mornington Peninsula Planning Scheme. A 'winery' is:

'Land used to display, and sell by retail, vineyard products, in association with the growing of grape vines and the manufacture of the vineyard products. It may include the preparation and sale of food and drink for consumption on the premises.'

Access to the proposed wine making, lunch time restaurant, cellar door sales and car parking facilities would be via an existing crushed rock access way from Merricks Road which runs along the southern boundary of the land. The access way is wide enough to allow two vehicles travelling in opposite directions to pass."

4. The following extract from Mr Tweedie's submission briefly describes the complex framework of planning scheme provisions which are of particular relevance to this application for review:

"The subject land is situated within a Rural 2 zone (Clause 35.01) and subject to the Mornington Peninsula Planning Scheme ("the Scheme"). A winery is an unspecified, Section 2 use within the zone.

Land used to display, and sell by retail, vineyard products, in association with the growing of grapevines and the manufacture of vineyard products. It may include the preparation and sale of food and drink for consumption on the premises.

The proposed buildings and works require a permit under Clause 35.01-4.

Under Clause 52.27 - Licensed Premises, a permit is required to use the review site and to sell or consume liquor if a licence is required under the Liquor Control Act 1987.

Permission is required under Clause 52.06 for car parking requirements to be reduced.

* Environmental Significance Overlay - Schedules 11.17 and 28

ESO 17 and 28 do not extend to that part of the subject land where buildings and works are proposed.

ESO 11 includes the following environmental objectives:

* To promote siting and design of buildings and works that is responsive to the open rural and coastal landscape character and vistas of this area, and that maintains the scenic value of roads and recreation routes_._

The subject land abuts a Significant Landscape Overlay (Schedule 3: Scenic Roads).

The Local Planning Policy Framework and the MSS contain numerous relevant controls, most significantly:

* Clause 22.06 Development on Highways, Main Roads and Tourist Routes

Other relevant planning policies and controls will be identified and discussed later in these submissions."

5. The Planning Policy Framework within which the decision must be made in this application for review is quite complex. The Tribunal was presented with a number of decisions of the Tribunal including application for review 2000/063159, Mitchell v Mornington Peninsula Shire Council, which discussed this framework in considerable depth. I am of the view that the relevant policies can be summarized to include:

* The highly regarded landscape and environmental values of the Mornington Peninsula should be protected, and sustainable uses of land which achieve this are encouraged.

* The continued use of rural land for viable agricultural production is encouraged, and contribution of rural production to the economy of the region is recognized.

* Tourism and the recreational opportunities available on the Peninsula which are the basis for tourism on the Peninsula, are to be promoted and protected, and the contribution of tourism and recreation to the economy of the region is recognized.

* The historic fragmentation of rural land on the Peninsula is recognized as an obstacle to the continued viable use of rural land for agricultural purposes, while at the same time it is acknowledged that rural land on the Peninsula is often used for residential purposes, and that these residents have legitimate interests.

* The importance of the Peninsula as a wine region is acknowledged, and vineries are expressly recognized as contributing to agriculture, tourism and recreation.

6. The policy framework is such that in cases such as this a complex balance must be struck between the competing values which are recognized as being of importance. Nevertheless, viticulture, wine making and the sale of wine are all especially recognized as making a valuable contribution to the economy and character of the Peninsula. Therefore while there are other values to be addressed, including the amenity of residents, they cannot be addressed in a way which is inimical to the continued productive use of rural land.

7. In this case the subject land, and the properties owned by the Respondent/Objectors, are all set within a small valley which provides furthermore a quite beautiful rural landscape. It appears that in recent times the land has not been intensively used until the vineyard was established on the subject land. The Respondent/Objectors desire to preserve this rural idyll is to be understood. However, the subject land and indeed the Respondent/Objectors land all falls within a rural zone, and this expectation must be tempered by the zone purposes, and the reasonable expectations which flow from the Planning Policy Framework discussed in the preceding paragraph.

8. Notwithstanding the broad support for wineries found within the Planning Policy Framework, a winery is a discretionary use within the zone, and therefore the merits of each proposal must be considered in the context of the land and the locality. It is interesting to note that the definition of the use "Winery" includes the possibility that food and drink will be prepared for sale and consumption on the premises. In a sense this is a recognition by those that drafted the planning scheme that a café or a restaurant can be part of a winery. Nevertheless, the question of whether or not a café or a restaurant is an appropriate part of a winery is also to be judged having regard to the particular merits of the case.

9. The Respondent/Objectors, and the Responsible Authority to a degree, relied on Clause 22.07 commercial and industrial uses in rural areas, as a basis for their argument that the proposed winery, and in particular the 40 seat restaurant which forms part of the winery, was inappropriate in this rural area. It was argued that the winery incorporating the proposed restaurant could not be regarded as a modest proposal, and it was argued that the permit applicants had failed to demonstrate any need for the proposed use as required by the clause.

10. Mr Linke was criticized for his description of the proposed winery as a modest proposal. The increase in the floor area of the proposed buildings, and the area of the proposed car park, were all used to demonstrate that in the view of the objectors the proposal was not a modest proposal, but rather was a a substantial change to the existing condition. Mr Linke on the other hand formed the view that this was a modest proposal in the context of the overall site, having regard to the characteristics of other vineyards, wineries and associated cafes and restaurants elsewhere. I agree with Mr Linke's assessment, and believe that the proposed winery and its associated restaurant is a modest proposal which should be appropriate to the land in the context of the zone provided that it does not result in any undue offsite amenity effects.

11. Other than to point out that this is the first winery in Merricks with a restaurant, Mr Linke did not address in detail the issue of the need for the proposed use, expressing some doubt about the relevance of this particular planning scheme provision to a proposal for a winery in a rural zone. While it is difficult to conclude that Clause 22.07 is entirely irrelevant to wineries incorporating restaurants, in my view it is most relevant to commercial or industrial uses which are ordinarily found within townships or within urban areas, and have no close relationship to the primary purpose of the zone. A winery on the other hand is primarily an element of a rural use, just as a dairy is an element of a dairy farm. The need for a restaurant as part of a winery is not determined by an examination of the availability of similar uses nearby and the degree to which the community's need for such facilities is satisfied, rather the need for the restaurant arises from the contribution made by the café/restaurant to the overall rural enterprise which incorporates viticulture, winemaking, and the sale of wine. In other word if the café/restaurant attracts patrons and facilitates the sale of wine produced on the land then it satisfies a legitimate need in my view. However one could conceive of a restaurant associated with a winery which is so large , or so independent in its operation, that it should be regarded as a separate use, in which case Clause 22.07 would have greater relevance, and need would be a more significant consideration.

12. Having concluded that as a matter of planning principle the proposal is an appropriate use of the land in the context of the zone and policy framework, I now must turn my attention to the issue of whether or not there are any unreasonable off-site amenity effects which militate against the grant of a permit. This issue can best be dealt with by looking at the effect of the proposal on the amenity of:

13. The winery, and its associated machinery shed and car park are located in a small group relatively high on the southern face of the valley. Therefore, the winery building is and will be clearly visible from a number of other properties within the valley including the Darch, Solomon, and Jones properties. These dwellings are set away from the winery buildings by distances which fall within the range of 200 to 600 metres. Mr Taitoko has proposed a landscape plan which will ultimately filter views from these properties to the winery site, but the landscape plan will have limited impacts for 5 years, and will not be fully effective for at least 10 years.

14. These objectors are primarily concerned about the more intensive use of the land implied by the proposed use. Particular effects complained of are visual impacts, noise and privacy. I have already indicated that I do not accept that the argument relating to these objectors' perceptions of the character of their rural environment is sustainable in the context of the zone and the planning policy framework.

15. My general conclusion is that the proposed winery is just too distant from any of these properties to have any significant effect on the amenity of these properties. The proposed and extended buildings will be visible from these properties but the buildings are not unusual either in size or in style having regard to the rural character of the area. The main noise source will be motor vehicles using the access road and the car park. The noise will be that of relatively slow moving motor vehicles on a rural road at a distance. The volume of traffic is relatively low and extremely seasonal so that for much of the year there will be very little traffic indeed. I do not believe that noise from this source can be regarded as being unreasonable. It is not intended that the restaurant include amplified entertainment. The restaurant is not likely to be a significant source of noise at these distances. The privacy issue raised is not based on a conventional conception of privacy, there is no argument that the views of adjoining properties are anything other than distant views, rather the argument is connected with the perception of the quiet rural character of the area and the fact that the use will introduce a significant larger number of people into the environment who can enjoy views over these adjoining sites. I have already expressed my opinion that a winery, even the one including a restaurant, is a legitimate rural use and that therefore amenity arguments in respect of the rural use need to go beyond an almost residential perception of ambience or character.

16. The DeBonos, and the Threlfalls reside in relatively small residential properties which abut or nearly abut the access roadway at Merricks Road. The effect of the proposal on these properties is relatively significant, the access road will change from being a driveway providing access to a conventional rural property, to what could be characterized as a lightly trafficked rural road. Although the traffic volumes cannot be said to be particularly high, there would be a significant change to the existing conditions. The main effects will be noise and dust.

17. As I have already indicated I believe the amenity effects will be significant, because of the degree of change, on the other hand I am also of the view that the amenity effects are not unacceptable in any absolute sense and are not so significant that one would say that they are an unresolvable obstacle to the use of the subject land for the proposed use.

18. It is my view that these two properties currently enjoy a high standard of amenity, and it is reasonable that the proposed use be established and operated in a way which protects that amenity within appropriate limits. In this case it was acknowledged on behalf of the permit applicants that measures would be needed to protect these properties from dust, although, Mr Gobbo on behalf of his client requested that his client be allowed to trial chemical dust control for a period of 12 months, rather than being required to seal this section of the access road from the outset. If it was not for the noise issue I would have been inclined to accept this submission. If the chemical treatments are effective then such measures are a complete answer to the dust issue. However, I am also of the view that the sealing of this section of the road will be effective in reducing the noise impact of the traffic using the proposed roadway. Having regard to the Policy Frameworks recognition of the importance of residential amenity on the Peninsular I believe that the access road from Merricks Road to the creek should be sealed within a reasonable timeframe.

19. Mr Threlfall also expressed some concern about the effect of headlight glare from users of the access road. The winery is only to open from 11:00am until 5:00pm, therefore headlight glare associated with users of the winery will only be an issue in mid winter. Having regard to the time of day, and the likely frequency of the problem given the time of year during which it can be a problem, I do not think that this is a matter which need be addressed by the permit applicant. I note that in time the cypresses planted along the access road will eliminate this problem.

20. The Merricks-Red Hill Equestrian Trail is a 7 kilometre walking, bicycling and horse riding trail from Merricks to Red Hill. The access road to the proposed winery abuts the trail for a considerable distance. It was argued that traffic on the access road would compromise the amenity of the trail for its users, in particular for horse riders. To a lesser extent it was argued that the establishment of the winery would compromise the present rural ambience of the trail.

21. I accept that horses can be disturbed by moving motor vehicles, and that therefore the risk of that occurring is, to some degree at least, increased by the increase in traffic proposed on the trail. However, I do not accept that these are risks which do not presently exist on the trail, there is already traffic including truck traffic using the access roadway, the trail traverses farmland on which there will be other animals, and which would be used by farm machinery, and even on the day of my inspection I noted an adjoining paddock or garden being mown by a person on a ride-on lawn mower. Therefore, it seems to me that users of the trail can only use the trail accepting that these risks can arise, whatever the incidence of them, and therefore the training of the rider and of the horse must be sufficient for that purpose. The trail has the advantage of being separate from the road system, and that advantage remains whether or not this winery proceeds. I do not think that this issue can be a basis for preventing the legitimate rural use of the subject land.

22. I also do not accept that the development of the winery and its associated small car park in any serious way detracts from the rural experience available to users of the trail. If anything to use just another part of that overall experience. Rather, it is conceivable that some users of the trail could stop at the winery , for a meal or coffee, and in this sense the establishment of the winery enhances the recreational experience available to users of the trail.

23. The users of the trail might from time to time be affected by dust, from traffic on the access road, but this will be a transient experience, and to my mind does not constitute the loss of amenity of anything like the magnitude of the loss of amenity that would potentially be experienced by persons resident to adjacent to the road.

24. An issue at the hearing was the way in which the cypress trees which have been planted along the access road will ultimately form a hedge which denies views from the equestrian trail over the subject land. These trees do not form part of the permit application, having been planted by a previous owner of the land. Nevertheless, the use of the access road arising from the proposed winery does have implications on the amenity of the equestrian trail, and in this respect Mr Gobbo offered the option of providing one or more gaps in this row of trees to provide for views from the trail. I accept that this is a useful compromise, and will accept Mr Gobbo's offer in this regard.

25. Finally I now turn to the more general issues raised during the course of the hearing, they were the safety of the access road and its intersection with Merricks Road, and the Environment Protection Authority's concern about the lack of information apparently available to them during the application process in respect of the likely impacts of the use.

26. In relation to the road safety issue, I generally accept Ms McNally's evidence in this regard. My inspection revealed that some care would be required in the use of the road, but no unusual care. I am supported in this conclusion by the fact that this is not a matter raised by the Responsible Authority, who would have had the benefit of its own traffic engineering expertise.

27. In relation to the effluent disposal issue by the end of the hearing it was absolutely clear that the proposed winery was an order of magnitude smaller than a winery of the size that would require a works approval. I note that the Council's own Environmental Health Officer was satisfied that the land was capable of retaining its own effluent. The permit applicant is quite happy to accept conditions on the permit requiring the issue to be addressed to the satisfaction of the Responsible Authority and the EPA. In these circumstance I think it is entirely appropriate to allow the matter of effluent disposal to be dealt with by way of permit conditions.

28. There was a dispute between the Responsible Authority, and the representatives of the permit applicant in respect of the question of whether or not this use was of a type that required referral to the Environment Protection Authority. I found Mr Gobbo's analysis of the planning scheme provisions in this regard apparently compelling, but because of the conclusion reached above I have not found it necessary to consider the matter insufficient depth to form a concluded opinion.

29. It follows from all the above that it is my conclusion that a permit should be granted for the proposed winery. In relation to the conditions of permit, I have broadly accepted Mr Gobbo's submissions in this regard, other than in relation to the issue of the sealing of the access road adjacent to the Threlfall and DeBono properties.