Morgan and Griffin PL v Bass Coast SC [2006] VCAT 1961

Morgan and Griffin PL v Bass Coast SC [2006] VCAT 1961 | Case summary | Zoe

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1 This is a proposal concerning the development and use of land on the corner of Thompson Avenue and Church Street, Cowes for the purposes of a supermarket, specialty shops and associated car parking facilities.

2 The case has been determined primarily on a strategic planning basis. In simple terms, we find that the proposal is contrary to the strategic planning framework presently found in the Bass Coast Planning Scheme. Further, we find that there is no support for the proposal within the Phillip Island and San Remo Design Framework (The Framework)[1] which is a policy document adopted by council although it is not part of the scheme.

3 The subject land is in a Mixed Use Zone not a Business 1 Zone. There is clear policy direction based on the zoning of the land and statements within the Phillip Island and San Remo Design Framework that the relevant section of Thompson Avenue south of Church Street is strategically seen as a mixed use precinct, not a primary or core retail precinct. Policy intent evident from the planning scheme and The Framework is to focus retail use in the northern section of Thompson Avenue within what is presently the Business 1 Zone. Policy direction for the Mixed Use Zone is to encourage tourist related development. To change these policy directions would require land to be rezoned with supporting changes to the local planning policy framework by way of amendment to the planning scheme.

4 From a practical perspective this site would be a good location for a new supermarket. However, the planning implications associated with locating a supermarket on the site are significant because it will effectively shift the retail focus of the town. This may be desirable, but it should be a conscious strategic decision made by the council as planning authority, not the outcome of a decision by the Tribunal on a simple planning permit application.

5 Other subsidiary issues leading us to reject this proposal are traffic and parking, which were key concerns of resident objectors; the quality of the building design; and the interface with residential properties in Hollydene Court.

6 Our conclusion is that the council's decision to refuse to grant a permit should be affirmed. We support the council's reasons that there is insufficient car parking, but our primary reason is the lack of strategic and policy support for the proposal. For similar reasons relied upon by the Tribunal in rejecting another recent supermarket proposal in close proximity on the opposite side of Thompson Avenue in Wilbow Corporation Pty Ltd v Bass Coast SC[2], the proposal should be rejected on the basis that:

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7 The review site is known as 114-112 Thompson Avenue, Cowes and is located on the southwest corner of Thompsons Avenue and Church Street. The site has a frontage to Thompson Avenue of approximately 80.5m and an abuttal to Church Street of approximately 100.6m giving a total area for the site of approximately 8000m2. A vacant parcel of land in the ownership of the applicant is located on the west side of the review site and is to be retained and we understand developed at a later time for residential purposes.

8 The existing site is currently vacant with buildings previously used for a 12 unit motel development having been moved sometime ago. Vegetation on the site is relatively sparse with a stand of mature eucalypts located to the southwest of the site with some other eucalypts located throughout the site. Importantly two trees abut the Church Street frontage as well as a Cypress tree located along the east boundary and some scattering of palm trees.

9 The site abuts vacant residential site to the west but to the south abuts a number of residential properties that have a frontage to Hollydene Court and to the petrol station located immediately to the south fronting Thompson Avenue.

10 Further south of the site is a variety of small retail and commercial premises. A large Mitre 10 store is located on the corner of Thompson Avenue and Settlement Road and an IGA store is located directly opposite. This section of Thompson Avenue contains a mix of retail, commercial, caravan/tourist accommodation uses as well as residential uses above existing buildings.

11 To the north of the site over Church Street is the Anglican Church, Chapel and Masonic Hall, a dwelling and further north a Coles Supermarket located on the corner of Thompson Avenue and Chapel Street.

12 The land in this section of Thompson Avenue is relatively flat with the land beginning to slope more rapidly as it approaches the northern end of Thompson Avenue intersecting with The Esplanade.

13 The review site is located south of the main Cowes retail and activity precinct and while it is within a Mixed Use Zone the location is dominated by the presence of the petrol filling station immediately to the south. The scale of development along Thompson Avenue is primarily one and two storeys with a key feature of the area being the canopy of Golden Cypress trees found along Thompson Avenue.

14 An enlarged site consisting of the review land and the residential parcel to the west was previously sought to be developed for a five star resort hotel including conference facilities, retail, restaurants and associated facilities, however that application was not successful and was refused at the Tribunal.[3]

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17 Victoria's planning system is intended to be strategically based. The state planning policy framework covers strategic issues of State importance. The local planning policy framework is intended to identify long term directions about land use and development in the municipality and provide the rationale for zones, overlays and particular provisions in the scheme. Changes to strategic directions are intended to be made by way of amendment to the planning scheme. The process encouraged by the government to achieve this is through structure planning, especially for activity centres.[4] The Phillip Island and San Remo Design Framework represents a first step in the structure planning process but it does not constitute a structure plan in itself. It establishes directions. If these directions are to be followed, more work is needed to translate them into a proper planning structure, a key element of which will be the zones and overlays of the planning scheme.

18 In our view it is not appropriate to ignore the current zoning of land or the planning policy framework found in the planning scheme when making decisions about where a major use such as a new supermarket should be located.

19 This proposal is located outside the main commercial/retail core of Cowes. It is in a Mixed Use Zone separated by half a block distant from the Business 1 Zone. From a strategic planning perspective this is not a supportable location whatever the practical attributes of the site may be.

20 Phillip Island and Cowes, as the principal township of the Island, are booming. This current proposal and the recent Wilbow proposal indicate that the time is ripe for a further supermarket in Cowes. If there is to be a new supermarket on Phillip Island, the logical place is Cowes. The location of a supermarket within a town is very important because it will have a major impact on the way the town centre functions. Supermarkets are 'anchor' stores which generate activity and attract other businesses to locate in proximity to them. They are a focus of activity and for this reason are best located within or on the periphery of the core retail area of an activity centre.

21 The state planning policy framework makes it clear that the preferred location for new and additional retail floor space should be within activity centres.[5] This is loosely reflected in the local planning policy framework which has a strategy to encourage retailing activities to locate within the Cowes business centre[6]. The implementation provisions for this strategy provide for the application of the "Business 1 Zone over all existing core retailing areas" in the main business centres of the municipality, including Cowes.

22 There is no other strategic direction within the planning scheme about where retail activity should be located specifically in Cowes. There is a local planning policy for Cowes Commercial Area in clause 22.04 but this relates only to car parking. There is far more specific guidance relating to tourist development. In the MSS tourism is acknowledged as a major contributor to the local, regional and State economies. Objectives relate to promoting tourist development and there are a long list of strategies aimed at promoting tourism (far more than applying to business). A number of them relate specifically to Cowes. These strategies will be implemented by:

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28 There is nothing to suggest that this section of Thompson Avenue should be developed for major new retail use. It is quite clear that strategically the area of Thompson Avenue between The Esplanade and Chapel Street is regarded as the primary commercial area - an area characterised by fine grain built fabric where development of specialist retail, cafes and restaurants is encouraged. The preferred location for an additional supermarket is within the primary commercial centre north of Church Street. The area of Thompson Avenue south of Church Street to Settlement Road is to retain its tourism focus as reflected in the current Mixed Use zoning.

29 There is no policy, either gazetted or adopted by council, to support encouragement of a major retail focus south of Church Street. While shop is a discretionary (section 2) use in the Mixed Use Zone, which in fact is a residential zone, the purposes of the zone do not provide explicit encouragement for a single purpose retail outcome. State and local policy encourage the use of the Business 1 Zone for that outcome.

30 It was submitted on behalf of the applicant that the recent Tribunal decision in Omni Property Group Pty Ltd v Port Phillip CC[14] supports the proposition that the Mixed Use Zone can be a location for a supermarket. We consider the Omni case turns on its own particular set of facts and cannot be relied upon as establishing a general proposition that major retail uses such as supermarkets are appropriately located outside core retail areas of activity centres.

31 The Omni case relied upon the criticism of the concept of "core retailing" enunciated in Glenwaye Pty Ltd v Glen Eira CC[15]. But in our view, it fails to appreciate fully the distinction that was drawn in Glenwaye between "core retailing" and "core retail area". Whilst the Tribunal in Glenwaye rejected the notion of distinguishing between core retailing and non-core retailing, it recognised the term "core retail area", which it described in the following terms:

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36 The natural effect of establishing a supermarket on this site would be to shift the retail focus of the town. This is not necessarily a bad thing. It is already evident that the retail area between The Esplanade and Chapel Street, which is becoming more of a focus for eating and tourist related retail establishments, is inadequate to cope with any major growth in retail development without jeopardising its existing character. It makes good sense to focus day to day shopping activities further north along Thompson Avenue as the present commercial centre of Cowes becomes more specialised. This area is better able to accommodate the large footprint necessarily associated with any new supermarket development without destroying the valued, fine grain character of the commercial area north of Chapel Street. Supermarkets have large floor plates. They need car parking and good access. They are better located on the periphery of a centre rather than in the heart of a traditional strip shopping street. Thus attempting to shoehorn a supermarket into the existing Business 1 Zone of Cowes would be quite inappropriate in an urban design sense. It would destroy the existing built fabric and interrupt the fine grained rhythm of the precinct between Chapel Street and The Esplanade which gives it its character and makes it particularly well suited to its developing restaurant/tourist role.

37 However, if the main business centre is to be expanded southwards along Thompson Avenue, a clear boundary needs to be established. How much of the very extensive Mixed Use Zone, which currently extends from mid-block between Chapel and Church Streets to Settlement Road and then extends a way along Settlement Road itself, should become part of the main business centre?

38 The dangers of allowing the core retail centre to bleed into the Mixed Use Zone are illustrated by this proposal (and also by the Wilbow proposal). The subject site is not at the edge of the Mixed Use Zone adjoining the Business 1 Zone but is half a block away. If a permit was granted for a supermarket in this location, it would be fair to ask why a permit could not be granted for a similar use anywhere else in this extensive Mixed Use Zone. If it is said that proximity to the existing Business 1 Zone is the key, the question then becomes, where is the boundary to this zone of proximity? And if there is a boundary, the question then becomes, why shouldn't this land be included in the Business 1 Zone? If there is no boundary, the effect of allowing major retail uses down the entire length of Thompson Avenue to Settlement Road would be to fragment the town's business centre and to dissipate retail activity. This would be contrary to the strategy of encouraging retailing activities to locate within the Cowes business centre[17]. It would undermine the development of Thompson Avenue as an attractive, dynamic and robust main street precinct because to achieve this it is necessary to concentrate activity and differentiate between precincts.

39 The Framework speaks of the need to define clear limits to all commercial precincts and consolidate commercial activity within them. It speaks of the need to concentrate retail and commercial development in areas already performing these functions.[18] It is therefore most important for the council to identify the boundaries of the business centre or, where necessary, redefine them to provide for new and expanded activity. These are decisions that should be made by the council acting in its role as a planning authority. It should not be a de facto decision that is made by the Tribunal in the context of deciding on a specific planning permit application. Yet, if we were to approve this use and development we would effectively be redefining the boundaries of the Cowes business centre.

40 The intersection of Thompson Avenue and Church Street is a prominent and important intersection in the town. From an urban design perspective, whatever happens here needs to be of high quality and offer a mix of uses to promote vitality and variety. It may be that council decides the business centre of Cowes should be expanded to incorporate this site. But if that is the case, it should be done as part of a strategic or structure planning exercise, and be supported by rezoning the land to Business 1 Zone.

41 We were advised that the council proposes to exhibit an amendment to the Bass Coast Planning Scheme in the near future which would introduce a new local planning policy for Cowes based on the Phillip Island and San Remo Framework. We have had the opportunity of looking at a draft of the amendment. We would be concerned if the council considered this was an adequate response to the need for more detail structure planning in Cowes. In our view it does not go far enough to implement the visions within The Framework by way of rezoning land. As we have previously indicated, The Framework is a good first step but lack sufficient detail to adequately guide day to day decision making about use and development. It is fundamentally a design framework and in this respect may work as a policy. But a policy can only guide decision making in accordance with the zone and overlay provisions of the scheme. Thus in guiding where new use and development should occur, attention must be given to the zones and overlays themselves. Policy is no substitute for this.

42 In conjunction with defining precincts and boundaries of the activity centre, the strategic planning for Cowes should incorporate a good traffic management plan and a parking precinct plan. Traffic and parking were two issues that objectors were most concerned about. We address the issue of traffic and parking associated with this proposal specifically later. But it is evident there is a clear need for an integrated approach to traffic management and parking within the town. The nature of the town is such that there will inevitably be times of congestion. Locals need to accept this and recognise that new use and development cannot be expected to provide for previous shortfalls in parking provision or address all the demand for parking at peak times. We are aware there was a previous parking precinct plan prepared that was not proceeded with. That does not mean that a new plan cannot or should not be prepared. Cowes has specific traffic management issues in part contributed to by its 'end of the road' status. As the town continues to grow, which is what The Framework envisages, a strong proactive approach on the part of council to managing issues associated with this growth will be required.

43 At this stage however, we consider that this specific use and development proposal for a supermarket should be refused because it pre-empts the orderly strategic planning for Cowes activity centre. It introduces a large retail development outside the main commercial/retail core of the township. It is well separated from the Business 1 Zone and is not specifically supported by the purposes of the Mixed Use Zone in which it is located. There is nothing within the planning policy framework of the planning scheme that would support its establishment in this location and there is nothing in the Phillip Island and San Remo Design Framework that would support it either.

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44 The inadequacy of the provision of onsite car parking was the only ground of refusal of the application by the Responsible Authority.

45 The proposal provides for 136 car parking spaces onsite, 11 bicycle parking spaces and loading and unloading facilities.

46 In terms of the parking provision, Mr Higgs, a traffic engineer, gave evidence that the estimated peak parking demand for this facility was between 118 and 131 car spaces. Mr Higgs based his assessment on empirical analysis of other similar sized supermarkets and on the New South Wales RTA "Guide for Assessment of Traffic Generating Developments" parking model.

47 The Responsible Authority submitted that the tourist/holiday centre nature of Phillip Island and in particular the principal role that Cowes township plays as a centre for commercial activities on the island means that the 'standard' analysis approach adopted by Mr Higgs is inadequate to estimate parking and traffic demands.

48 In the evidence produced by Mr Higgs, the only comparable location in terms of seasonal peak demands of supermarkets was that located at Drysdale which provided a peak parking demand of six spaces per 100m2. This figure is consistent with the peak design parking rate of 6:1 cars per 100m2 for shops with floor areas of less than 10,000m2 found in New South Wales RTA Guide. It was also put to us that an earlier attempt by the Responsible Authority to develop a precinct parking plan also recommended six car spaces per 100m2. However, that plan was abandoned and we place no weight on that plan other than to observe consistency of the number of car spaces per 100m2.

49 While it is accepted within traffic engineering practice not to design for the peak parking demand periods in standard locations, we believe there is merit in the Responsible Authority's argument that places like Cowes and to a wider extent Phillip Island, which are tourist locations that are not only seasonal but have major events and attractions occurring throughout the year, result in the standard approach being inadequate.

50 While Mr Higgs himself allowed for a 10% increase in his estimates providing for a 'holiday loading' we think such allowance is insufficient.

51 We are of the view that given the substantial increase in population and consequently traffic and parking demand during the numerous activity periods on the island requires either an empirical analysis during some of these activities or a greater allowance being made. We are of the view a figure closer to the six spaces per 100m2 is likely to result. Thus, we estimate a parking provision in the order of 160 car spaces would be required to service the peak demands of a facility of this size.

52 As mentioned earlier a parking precinct plan had previously prepared and abandoned. We encourage the responsible authority to consider the preparation of another precinct paring plan as we consider that a holistic approach is the only way to address the parking issues of Cowes township.

53 In terms of traffic movement we generally accept that this can be managed and have no major concerns about the arrangement of access and egress from the site. If approval were to be given we would seek some minor modifications however these would not change the nature of the application to any great extent.

54 However, we are concerned that on what is effectively a "greenfield" site the location of loading facilities are at the most sensitive interface near the residential dwellings to the south. These dwellings face Hollydene Court. Again we are confident that such facilities could be relocated if necessary.

55 We are of the view that additional landscaping ought to be provided along the southern boundary adjacent to the building and the necessity for a footpath along that driveway appears in our view to be questionable.

56 Thus, we are not satisfied with the number of spaces provided to service this proposal is adequate and find that the Responsible Authority's ground of refusal is substantiated.

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57 We have rejected this proposal on strategic planning grounds but it is also relevant to make some comments about the proposed building design.

58 The corner of Thompson Avenue and Church Street is a focal intersection within Cowes and this is therefore a very significant site. We consider that the built form of the proposed development represents a lost opportunity to pursue other planning objectives.

59 Whilst not yet part of the Bass Coast Planning Scheme, the Phillip Island and San Remo Design Framework emphasises the need to encourage a high standard of architecture and urban design. The design of this building is adequate but not outstanding. In our view, and based on the guidance contained in The Framework, such an important site demands a built form with more commanding presence, of greater height than single storey, and one that makes a more positive contribution to the vitality of both Thompson Avenue and Church Street.

60 For example, there are no shop frontages or entrances along Thompson Avenue, only supermarket walls. There is no public interaction for approximately 60 metres of main street frontage. The same goes for Church Street. Shops turn their back on the street and have their access only from the internal arcade. The development does not sufficiently address either street frontage only the corner. There are problems too with the landscaping areas of the type envisaged along Thompson Avenue because plants rarely flourish in this type of environment. Rather, such landscaping areas tend to become unsightly repositories for litter.

61 We consider that the proposal to locate the loading bay in proximity to residential development in Hollydene Court is not desirable. Any interface between commercial development and residential accommodation, whether this is holiday or permanent accommodation, needs to be sensitively handled. Residential amenity, especially in terms of noise from machinery and equipment, should be addressed at the design stage rather than by trying to control it through conditions. Noise sources should be located away from residential properties.

62 In summary, we consider this particular single storey, single use proposal to be an underdevelopment and a waste of the potential of the site in terms of what it may contribute to the future character and dynamic of Cowes.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Morgan and Griffin PL v Bass Coast SC [2006] VCAT 1961 (26 September 2006)

Parties