1 Before the development starts a Site Layout Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. The Plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a)

Turning templates for service vehicles accessing the site

(b)

Turning templates for trucks into the loading bay

(c)

Dimensions of the roundabouts

(d)

A pedestrian crossing point from the front car park to the development

(e)

Dimensions of the parking bays and access aisles

(f)

Crossover details and widths

2 Before the development starts a Land Management Plan must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. The Plan must include, but not be limited to:

•

Drainage

•

Stormwater

•

Water supply

•

Effluent discharge

•

Earthworks

•

Pest control

•

Waste disposal

•

Landscaping

•

The dam

•

Irrigation

•

Chemical use

•

Other site management practices

3 Before the development starts a Drainage Management Plan must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. The Plan must be for the whole of the subject land and include any external catchments.

4 Before the development starts a Stormwater Management Plan must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. The Plan must utilise Best Practice Environmental Guidelines.

5 Before the development starts amended 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 include:

(a)

A schedule of external materials, finishes and colours

(b)

Design elements that minimise green house gas emissions and water use and maximise the amount of water that is recycled.

6 The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

7 Polluted and/or sediment laden runoff must not be discharged directly or indirectly into Melbourne Water drains or watercourses.

8 The owner of the land must enter into an agreement with City West Water for the provision of water supply.

9 The owner of the land must enter into an agreement with City West Water for the provision of sewerage.

10 The right turn access into the site must be designed as a "Type C" right turning land in accordance with NAASRA Guide to Traffic Engineering Practice Part 5 Intersections at Grade, and this will require the proposed access to be relocated southwards, all to the satisfaction of the Responsible Authority and VicRoads.

11 The left turn access into the site must be designed as a rural left turn lane in accordance with NAASRA Guide to Traffic Engineering Practice Part 5 Intersection at Grade, to the satisfaction of the Responsible Authority and VicRoads.

12 The northern access for the site must be limited to left turn egress only.

13 Before the development starts a detailed functional layout plan, to the satisfaction of the Responsible Authority and VicRoads, must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan set out the works required pursuant to Conditions 10, 11 and 12 of this permit.

14 Work site traffic management practices must be in accordance with Australian Standard AS1742.3-2002 "Manual of uniform traffic control devices - Part 3: Traffic control device for works on roads" and with VicRoads' "Worksite Traffic Management (Roadworks Signing) Code of Practice", to the satisfaction of the Responsible Authority and VicRoads.

15 The developer must, at no cost to VicRoads or the Responsible Authority, be responsible for relocation of any road furniture and other services required in providing access to the subject land, to the satisfaction of the Responsible Authority and VicRoads.

16 The access roadway/driveway to the Centre must, to the satisfaction of the Responsible Authority and VicRoads, be constructed and maintained for a load limit of at least 15 tonnes all weather construction and it must have a minimum trafficable width of 7.3 metres where parking is prohibited on both sides or the roadway, 5.4 metres where parking is permitted on both sides of the roadway only, and:

(a)

Off Street Parking may assist in this matter.

(b)

Constructed roads more than 60 metres in length from the intersection must have a turning circle with a minimum radius of 8 metres (including roll-over kerbs if they are provided).

(c)

Other solutions using T or Y heads may be considered.

17 There must be no obstruction within 1 metre of the edge of the formed width of roads at any time and there must be a four metre height clearance above all roads.

18 Adequate provision must be provided for turning of fire brigade vehicles in dead end roads and cul-de-sacs, to the satisfaction of the Responsible Authority and the CFA.

19 Operable hydrants above or below ground must be provided to the satisfaction of the CFA. The maximum distance between these hydrants on roadways to the rear of the building envelope (or in the absence of the building envelope, the rear of all lots) must be 120 metres and hydrants must be no more than 200 metres apart.

20 Hydrants must be identified as specified in "identification of Street hydrants for Fire Fighting purposes available under publications on the CFA website (www.cfa.vic.gov.au), to the satisfaction of the Responsible Authority and the CFA.

21 Construction and operation of the proposed works must comply with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) N1, to the satisfaction of the Responsible Authority.

22 Clearing and construction activities associated with the land must be carried out in accordance with EPA publication 275 "Construction Techniques for Sediment Pollution Control", to the satisfaction of the Responsible Authority.

23 The occupier must ensure that there is no discharge of liquid waste or contaminated stormwater beyond the boundary of the premises, to the satisfaction of the Responsible Authority.

24 The combined number of patrons present for the conference centre and restaurant must not exceed 150.

25 Crossovers must be in accordance with Council standard drawing SD4-5 for heavy duty vehicle crossing, to the satisfaction of the Responsible Authority.

26 Areas set aside for the parking of vehicles together with the aisles and drives must be properly formed to such levels that they can be utilised in accordance with the endorsed plan, must be drained and provided with an impervious all-weather seal coat, and must be constructed, drained and maintained in a continuously useable condition, all to the satisfaction of the Responsible Authority.

27 Vehicular access to the subject land from any roadway or service lane (and vice versa) must be by way of vehicle crossings constructed at right angles to the road, to suit the proposed driveways and vehicles that will use the crossing, location, the design and construction of the vehicle crossings must be approved by the Responsible Authority, any existing unused crossings must be removed and replaced with concrete kerb and channel, and any services or infrastructure, including street trees, that require relocation or modification as a result of proposed crossovers must be relocated or modified at the permit holders cost, all to the satisfaction of the Responsible Authority.

28 Vehicles under the control of the operator under this permit or its staff must not be parked in the streets nearby, and the operator must use its best endeavours to ensure that customer and visitor vehicles are not parked in the streets nearby, all to the satisfaction of the Responsible Authority.

29 A concrete kerb of a minimum height of 150mm or such other form of barrier as the Responsible Authority may approve, of sufficient height to prevent the passage of vehicles, must be provided where necessary to prevent vehicles causing damage to garden areas, to prevent vehicular access/egress other than where driveways are provided and to prevent vehicles projecting beyond the boundaries of the subject land, to the satisfaction of the Responsible Authority.

30 Areas set aside for the parking and movement of vehicles as shown on the endorsed plans must be made available for such use and must not be used for any other purpose.

31 The boundaries of all car spaces, access and egress lanes, and the direction in which vehicles should proceed along the lanes, must at all times be clearly indicated on the ground, to the satisfaction of the Responsible Authority.

32 A sign or signs must be provided to the satisfaction of the Responsible Authority to direct drivers to the on-site car parking areas, such signs must be located in the vicinity of the frontage of the subject land, and must not exceed 0.3 square metres in area, all to the satisfaction of the Responsible Authority

33 The loading and unloading of vehicles and the delivery of goods must at all times be undertaken within the boundaries of the subject land.

34 In the event of overflow car parking causing in the opinion of the Responsible Authority a nuisance, additional car parking areas must be provided on the subject land or elsewhere to the satisfaction of the Responsible Authority, within three months of the Responsible Authority requesting the same in writing.

35 Before the development starts a landscaping plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a)

All surface treatments

(b)

The location, type and height of all fencing

(c)

The botanical name, height and width at maturity, and location of all vegetation to be used.

(d)

A works specification, and the method of preparing, draining watering and maintaining the landscape area.

36 The landscape areas shown on the endorsed plans must be planted and maintained to the satisfaction of the Responsible Authority and once landscaped must not be used for any other purpose except with the prior written consent of the Responsible Authority.

37 The current septic system associated with the existing dwelling on the property must be decommissioned in accordance with the requirements of the Environment Protection Act 1970 and the Septic Tank Code of Practice, and all relevant permits/approvals for the decommissioning must be obtained from Council's Environmental Health Unit prior to any work commencing, all to the satisfaction of the Responsible Authority.

38 The proposed food premises (restaurant and production facilities) must be designed in accordance with the requirements of the FSANZ Food Safety Standards and Australian Standard 4674-2004, and an application must be made to Council's Environmental Health Unit to have the design assessed for compliance, prior to any work commencing, all to the satisfaction of the Responsible Authority.

39 All food premises (as defined by the Food Act 1984) must register with Council Environmental Health Unit prior to commencing operation.

40 The proposed accommodation facilities must be designed in accordance with the requirements of the Health (Prescribed Accommodation) Regulations 2001. An application must be made to Council's Environmental Health Unit to have the design assessed for compliance, prior to any work commencing.

41 The accommodation facilities (as defined by the Health (Prescribed Accommodation) Regulations 2001) must register with Council's Environmental Health Unit prior to commencing operation.

42 Except with the prior written consent of the Responsible Authority, the use permitted by this permit must operate only between the following times:

43 Except with the prior written consent of the Responsible Authority, the following restrictions apply:

(a)

Waste collection times are restricted to the hours of 7.00am - 8.00pm Monday - Saturday and 9.00am - 8.00pm on Sundays and Public Holidays.

(b)

Delivery times are restricted to the hours of 7.00am - 10.00pm Monday - Saturday and 9.00am - 10.00pm on Sundays and Public Holidays.

44 Adequate facilities for the collection, storage and disposal of putrescible and non-putrescible wastes must be provided, and the waste collection and storage location must be of sufficient size, pest proof and suitably located as not to cause a nuisance as defined by the Health Act 1958, all to the satisfaction of the Responsible Authority.

45 The swimming pool must be maintained in accordance with the Health (Infectious Diseases) Regulations 2001, to the satisfaction of the Responsible Authority.

46 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

47 This permit will expire if one of the following circumstances applies:

(a)

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

(b)

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

(c)

The use is not commenced within four years of the date of the 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, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For Joined Applicant Department of Sustainability and Environment

Mr T Ludeman, Consultant Planner, who called Mr S Field, a Consultant Agricultural Scientist, as an expert witness.

Mr G Testro, Lawyer, who called the following expert witnesses:

• Mr P Harrison, a Consultant Horticulturist and Arborist, and

1 This is an application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Objectors for review of a decision by the Wyndham City Council ("the Responsible Authority") to grant a permit in Application No. WYP 4242.

2 Mr P Atkins, for the Department of Sustainability and Environment, made application for the Department, which had not been an objector, to be joined as a party. The Department had not filed and served a Statement of Grounds. Mr Testro, for the Respondents/Permit Applicants, formally opposed the joinder of the Department and reserved his position in the event that the Department made submissions outside the Grounds that had been filed and served by others. I ordered that the Department be joined as a party, pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998.

3 There being no objection I amended the permit application, pursuant to Clause 60(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, so that the proposal would be described as an olive grove and processing facilities, a conference centre, a restaurant, a motel and sales of olive products.

4 I conducted an inspection between Day 1 and Day 2.

5 The proposal includes an olive grove, a conference centre, a motel, a restaurant, sales and display area for olive products, and associated car parking.

6 It is intended that the olive grove occupy approximately one-third of the subject land and that olives be cultivated for consumption on site and sale of olives and olive products. The conference centre would provide up to three function rooms that could accommodate up to 150 guests for private or business conferences. It would include an administration centre on an upper level and a large pergola at the rear of the building. It would be designed to offer flexible room sizes to cater for a range of conference and seminar events. The motel is proposed to be located along the southern boundary and include 20 detached accommodation buildings providing up to 40 bedrooms. The motel would also include reception facilities and a pool and gymnasium. The reception area would complement the conference centre by providing staff and facilities for late finishing seminars. The restaurant is proposed to cater for approximately 50 people and service motel guests for breakfast, lunch and dinner. It would include a production, storage, sales and display area to promote olive products.

7 The motel units would be set back 58 metres from Point Cook Road and the proposed landscaping and part of the olive grove would be within the setback. The main building would be set back 90 metres from the Point Cook Road with the car park and landscaping treatment within the setback. The motel units would be set back 4 metres from the south boundary and 8 metres from the west boundary, whilst the conference centre would be set back approximately 52 metres from the north boundary.

8 There would be car parking for 123 vehicles, including four disabled spaces. Each accommodation unit would be provided with 2 car spaces (40 in total), 60 car spaces would be provided in the front setback, and a further 8 spaces would be provided adjacent to the foyer entry. There will be 11 spaces located at the rear of the conference centre for staff.

9 The majority of the built form would be single storey and range in height from 3.6 metres to 6 metres in wall height. The conference centre would be 7.7 metres high, including a second level containing the administration facilities including a meeting room, offices and staff room.

10 The subject land would be extensively landscaped, using native and indigenous planting suitable for the area, and garden beds are proposed to screen the development to help maintain the rural character with the area.

11 The development would include open space for conference delegates and motel guests, comprising landscaped areas and the olive grove in the front and north of the subject land. The open space also includes a landscaped garden and water feature between the dam and the conference centre.

12 It is proposed that external finishes comprise colorbond metal deck roofing, brickwork on the walls and render finish on other external walls.

13 Access from Point Cook Road would be by two crossovers, which is the same as the present access to the subject land. The northern access would be for staff and service vehicles, and would comprise a two lane driveway. The southern access driveway would be the main entry and comprise three lanes at the Point Cook Road, being two exit lanes and one entry lane. There would be a dedicated right turn lane provided in Point Cook Road to accommodate turning vehicles.

14 The subject land is on the west side of Point Cook Road, south of the intersection with the Point Cook Homestead Road.

15 The dimensions of the subject land are:

Frontage 147.12 metres

Depth 275.10 metres

Area 4.05 hectares

16 There is presently a single storey dwelling and associated outbuildings on the subject land. Although the land was previously zoned Rural no farming or agricultural practices are carried out on the subject land, and there is limited vegetation mostly around the dwelling.

17 There are small clusters of trees and shrubs between the dwelling and Point Cook Road, and there are two dams located near the north and east boundaries. There is a post and wire fence around the perimeter, and high timber fencing along the eastern section of the north boundary. There are access points to Point Cook Road.

18 The properties at 448 Point Cook Road and 450 Point Cook Road abut the north boundary. One contains a single dwelling and associated outbuildings and is not used for any rural activity. The other lot was previously occupied by the Victorian Ostrich Farming Centre, which has now ceased operation. The property at 462 Point Cook Road is to the south of the subject land, and contains a single dwelling. This land is not used for any rural activity.

19 The land to the west comprises larger lots in a rural landscape, with no buildings or agricultural uses.

20 The Point Cook Coastal Park is on the opposite, east, side of Point Cook Road. The land on the south side of Point Cook Homestead Road is used for rural lifestyle purposes and a horse training (trotting/racing) course.

21 The lots to the north and south could be described as occupied for rural residential purposes.

22 The subject land is covered by the Wyndham Planning Scheme and is in a Green Wedge Zone which is the subject of Clause 35.04. The uses of agricultural, function centre (which includes a conference centre), restaurant and residential hotel (which includes a motel) are Section 2 - Permit required uses, pursuant to the Table at Clause 35.04-1. Function Centre, Restaurant and Residential Hotel are Section 2 - Permit required uses subject to the condition that the use must be in conjunction with agriculture, outdoor recreation facility, rural industry or winery, and for a function centre the number of patrons present at any time must not exceed 150 patrons, and for a residential hotel the number of bedrooms must not exceed 80 bedrooms. A permit is required to construct or carry out buildings or works associated with a Section 2 use, pursuant to Clause 35.05-4 and Decision Guidelines are set out at Clause 35.04-5.

23 A permit is required to create or alter an access to a road in a Road Zone Category 1 pursuant to Clause 52.29, Land adjacent to a Road Zone, Category 1, or a Public Acquisition Overlay for a Category 1 Road. The Point Cook Road is a Category 1 Road.

24 Clause 52.06, Car parking, applies to the proposal. Clause 52.06-1 provides that the Table at Claus 52.06-5 sets out the number of car spaces required for various uses, and a permit may be granted to reduce or to waive the number of car spaces required by the Table.

25 Clause 52.07, Loading and Unloading of Vehicles, provides that space must be provided for loading and unloading of vehicles as set out in the Table in the Clause, and a permit is required to reduce or waive that requirement.

26 Clause 52.17, Native Vegetation, provides that a permit is required to clear native vegetation.

27 Clause 52.27, Licensed Premises, provides that a permit is required to use land or to sell or consume liquor. A permit is not applied for at this time for this purpose.

28 The Table at Clause 52.06-5 sets out the following car parking requirements:

•

Motel - one car space for each unit, plus one car space for each resident employee, plus two car spaces for each 100 square metres of motel service floor area not available for use by guests.

•

Restaurant - 0.6 car spaces to each seat available for the public.

•

Place of Assembly - 0.3 car spaces to each seat or each square metre of net floor area whichever is greater.

29 Forty car spaces would be required for the motel, 170 car spaces for the conference centre, and 30 car spaces for the restaurant, a total of 240 car spaces. The proposal is for 123 car spaces leaving a shortfall of 117 car spaces, and a permit for reduction of car park is therefore required.

30 There are a few native and exotic trees on the subject land and a permit is therefore required to remove native vegetation.

31 A permit is required for creation or alteration of accesses to Point Cook Road and no objection was received from VicRoads subject to conditions.

32 Reference was made to the following planning policies:

• Clause 12.02-2 Better Management of Metropolitan Growth Green Wedges

• Clause 15.05 Noise Abatement

• Clause 17.04 Tourism

• Clause 21.04-4 Strategic Framework Plan

• Clause 21.05-1 Managing Urban Growth

• Clause 21.05-4 Availability of Local and Regional Employment

• Clause 21.05-7 Protection of Environmental Assets

• Clause 21.05-8 Investment in Tourism

• Clause 21.05-9 Rural Land Protection

33 The Grounds of Application for Review were:

R Perks

1 the proposed use and development of land is contrary to the purposes of the Rural Zone and the Green Wedge.

2 The use and development in this zone and location is contrary to orderly and proper planning.

3 The approval of this development in this location would establish a bad precedent for the Rural Zone at Point Cook and the Green Wedge.

4 The Responsible Authority failed to consider all relevant objections.

2 Proposal is contrary to broader purpose of Green Wedge Zone.

3 Proposal is an inappropriate use, ie; not suited to Buffer and other Zones Proposal can be located in an urban area.

4 Proposal will set precedent for further inappropriate uses.

5 Proposal will have detrimental affect on amenity Proposal may contravene the RAMSAR Convention.

34 There was a previous application for a permit for use and development of the subject land for a motel, function centre and restaurant. The Responsible Authority issued a Notice of Decision to Grant a Permit. Objectors lodged Application for Review No. P3116/2003 Ray Perks and others v City of Wyndham. Ms Davies ordered that the decision of the Responsible Authority be set aside and directed that a permit not be granted. Ms Davies, in her Reasons said:

82 However, my fundamental finding is that the proposal is contrary to the purpose of the Rural Zone, the character of the area and strategic planning for the green wedge. the Council and the applicant have failed to justify why an intensive urban use should be located in a Rural Zone that is part of Melbourne's Green Wedge.

35 Ms Rosewarne, for the Responsible Authority, submitted that the previous proposal comprised a motel, function centre and restaurant, whilst the subject proposal comprises those elements with the addition of an olive grove. The motel units in the previous proposal were positioned along the northern boundary of the subject land whilst in this proposal the motel buildings will be south of the conference centre. The number of motel units has been reduced from 42 to 40 and the scale of the function centre has been reduced and where as it was previously designed to cater for up to 500 people it is now proposed to hold a maximum of 150 people, and car parking has been increased by three spaces to 123 car spaces, and a tennis court previously proposed is not now proposed.

36 The subject land at the time of the previous application was in a Rural Zone but the strategy in Melbourne 2030 provided for the subject land to be within a Green Wedge Zone. The subject land is now in a Green Wedge Zone.

37 Ms Rosewarne submitted that the proposal satisfied relevant State Planning Policy in that it would result in a productive use of agricultural land, creating employment, provide a service to the community and to build on tourism potential, and conditions in a permit could address the issue of noise. Ms Rosewarne also submitted that the proposal is consistent with relevant policy set out in the Municipal Strategic Statement, in that it would maintain a balance between the urban and non-urban aspects of the municipality and was consistent with the Point Cook Concept Plan, it would create employment opportunities in the farming hospitality industries, it would not affect areas with environmental heritage significance, there are limited accommodation options in the area and the proposal would fill a gap in the market, and the proposal would make effective use of a rural parcel of land for agricultural purposes.

38 The purpose of the Green Wedge Zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To conserve and enhance the cultural significance and character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.

39 Ms Rosewarne submitted that the proposal would satisfy the purpose of the zone in that:

•

The function centre and motel components of the proposal would complement the agriculture and rural industry aspects

•

The proposal would complement existing tourist attractions in the area

•

The proposal had been designed in a manner that minimise the visual impact within the landscape and the olive grove and landscaping proposed would assist with screening of buildings

•

The subject land is close to the urban growth boundary and the proposal would act as a transitional land use between agricultural land uses and urban land uses

•

The proposal would be consistent with sustainable land management practices in that a third of the subject land would be used for agriculture and the proposed large dam would provide irrigation for the olive grove

•

Properties surrounding the subject land are not intensively farmed, and the proposed use for agriculture and as a conference centre would add to the diverse uses within the region

40 Ms Rosewarne submitted that the Point Cook Concept Plan 2000 identifies the subject land as being affected by a 13 ANEF (Australian Noise Exposure Forecast) noise contour but the proposal would not be significantly affected by aircraft noise given the scale of operations at the nearby RAAF airfield, and a condition in the Notice of Decision to Grant a Permit requires that the motel development be relocated slightly so as to be outside the contour.

41 Ms Rosewarne submitted that the proposed car parking provision is appropriate given the likelihood of people sharing vehicles when attending functions and the fact that people attending conferences might stay overnight at the motel, and a relax in carparking is therefore considered appropriate.

42 Ms Rosewarne also responded to the Grounds of Application for Review. Mr P Atkins, Statutory Planning Co-ordinator for the Department of Sustainability and Environment, spoke to a written submission. Mr Atkins submitted that the Department received notice of the application on 21 March 2005 in its role as an affected opposite landowner, but was unable to comment in time on the application. Mr Atkins submitted that the Department represents Parks Victoria which manages the Point Cook Coastal Park which is opposite the subject land.

43 Mr Atkins submitted that:

1. The proposed use and development of the land is contrary to the purpose of the Green Wedge Zone

2. The proposed use and development of the land is contrary to the objectives of Melbourne 2030

3. The use and development is contrary to the Point Cook Coastal Park and Cheetham Wetlands Draft Future Directions Plan 2004

The subject application is considered a repeat application from the stand-point of the incompatibility of the proposed change of land use that would arise in the zone and from the lack of achievement of strategic planing policies, both of which were unresolved concerns with the previous proposal. The change of scale of the development, from that of the previous application (WYP2437), does not mitigated sufficiently the impacts that would be caused from the change of use proposed at the site and DSE considers that in this regard the proposal has not substantially changed or been further rationalised in planning argument to warrant a different determination from the thought full consideration and findings of the tribunal for the review of the permit (WYP 2437).

45 Mr Ludeman spoke to a written submission for Mr R Perks, an Applicant for Review/Objector. Mr Ludeman submitted:

•

It is unclear how the premises would be limit to only 150 guests are required by the Planning Scheme

•

The proposal provides no detail as to how the uses are to be associated with, or used in conjunction with, the agricultural use (olive grove)

46 Mr Ludeman called Mr S Field, a Consultant Agricultural Scientist, as an expert witness. Mr Field summarised his opinions as follows:

1 There is sufficient visual and anecdotal evidence to suggest that the soil profile of the proposed site for the olive grove is clay with little topsoil, poor drainage and a pH around 5.

2 This soil profile is not that recommended for the establishment of productive commercial olive groves and severe horticultural problems can be expected unless the site is protected from flooding, permanently drained and substantial steps taken to reduce the acidity to a pH of 7.

3 The analysis of the economic viability of the olive grove and ancillary olive production centre indicates that whatever the olive products produced it is unlikely that the enterprise will be profitable within eight years of establishment.

4 It is also unlikely that the enterprise will be profitable within the following five years.

5 The calculations have assumed that good growing conditions produce an annual commercial harvest equivalent to well managed groves in good growing conditions, As indicated in 2. above it is considered that the growing conditions will not be ideal for good production.

6 The comparison with the indicators for a business of primary production from the Australian Tax Office ruling suggest that the enterprise does not meet the requirements on a number of critical indicators.

47 Mr Testro spoke to a written submission for the Respondents/Permit Applicants. Mr Testro responded to the contention of Mr Field that the olive grove and its processing facilities would not be commercially viable. Mr Testro submitted that planning decisions have historically taken the view that whether a particular proposal makes a profit or is commercially viable is a matter to be left to private economics and market forces and has nothing to do with the Planning Scheme.

48 Mr Testro cited Dandenong Ranges Steiner School v Cardinia Shire Council 20 VPR 196, in which Ms Monk said at paragraph 28:

There are many places in the world where subsistence agriculture is practiced without involving commercial application and where the activity is small scale, commensurate with the needs of the particular family or clan group.

14 Within this zone education centre is a Section 2 use, meaning that a permit is required pursuant to Clause 31.01-2 of the scheme. However, in June 2003, prior to the application being lodged with the Responsible Authority, the Clause 57, Metropolitan Green Wedge Land provisions were introduced and with these, the Core Planning Provisions at Clause 57.01 and the table to that clause. The table provides that for land outside the Urban Growth Boundary (which is the case here) an education centre is prohibited unless the conditions set out in the table are met. The conditions to be met are:

Must be used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry, or Winery.

No more than 150 students may be present at any time.

18 As noted earlier, a threshold issue in this case is whether the Dandenong Ranges Steiner School's occupation of this land could be characterised as an education centre used in conjunction with agriculture or natural systems.

28 It follows from the above that I am persuaded that the proposed use is not prohibited under the Core Planning Provisions at Clause 57.01 because, to use the terminology applied by the Land and Environment Court in Winton Property Group v Campbelltown City Council [1999] NSWLEC 241, there will be a functional nexus between the education use, agriculture and natural systems. While in Winton it was found that this nexus need not extend to interdependence or a necessarily close association, in the subject case there will be considerable interdependencies and a close association. Furthermore, in view of the primary level nature of the school, I see no reason why the scale or extent of horticultural activity and bushland nurturing should not be to a scale commensurate with the capabilities of primary level children. The planning scheme places no limitations on scale, nor does it require commercial application. There are many places in the world where subsistence agriculture is practiced without involving commercial application and where the activity is small scale, commensurate with the needs of the particular family or clan group.

50 I consider that what was said by Ms Monk in Dandenong Ranges Steiner School v Cardinia Shire Council applies equally in this Application for Review. I consider that the Section 2 use condition, that the function centre and residential hotel must be used in conjunction with agriculture is satisfied.

51 I therefore find that the proposed use and development is not contrary to the Green Wedge Zone and is not contrary to orderly and proper planning. I also consider that this proposal can be distinguished from the earlier proposal considered by Ms Davies in Ray Perks and others v City of Wyndham, for the reasons submitted by Ms Rosewarne, and referred to at paragraph 35 above.

52 A permit is required to reduce the car parking provision. Mr Testro submitted that whilst the conference centre calculations based on an area basis attract a need for a permit for a reduction in car parking provision, if the calculations were done on a seat basis rather than on an area basis there will be a surplus of car parking spaces. I consider that the car parking proposed is adequate.

53 It has been suggested that there will be an unacceptable increase in traffic on Point Cook Road arising from this proposal. It is significant that neither the Responsible Authority nor VicRoads had a concern in this respect and I do not consider that there is a concern.

54 A permit is required for reduction in the area of the loading bay provided. I consider that what is proposed is adequate and a permit should be granted.

55 The proposed vegetation removal is not significant and will be more than compensated by proposed landscaping. I consider that a permit is appropriate.

56 Mr Atkins was concerned that the proposal would result in the positioning of an intense urban use at or very near to the Point Cook Coastal Park. I do not consider that there will be any adverse impact on the park. Mr Testro submitted that the Department proposes to locate a Park Management Facility adjacent to the entrance road to the park and directly opposite the subject land and that this facility would alter the local landscape character to a greater degree than this proposal, and on the other side of the access road to the park there is an existing horse training facility and associated dwelling. I do not consider that this proposal would impact adversely on the Park.

57 I consider it appropriate to direct the grant of a permit subject to conditions for reasons discussed above.

58 I took submissions on the conditions in the Notice of Decision to Grant a Permit and the Responsible Authority provided some additional conditions.

59 The Responsible Authority also requested that there be a condition requiring a Land Management Plan including drainage, stormwater, water supply, effluent discharge, earthworks, pest control, waste disposal, landscaping, irrigation, chemical use and other site management practices. Mr Ludeman suggested that the dam also be included in this Land Management Plan. I consider such a condition would be appropriate.

60 It was also suggested there be a general amenity condition and I consider that is appropriate.

61 Mr Testro questioned the need for relocation of the motel units so that they would not be in ANEF contour. Mr Testro submitted that the material in the Point Cook Concept Plan recognises that there is a possibility of an ANEF less than 20 impacting on residential development and that land within the 13 ANEF would be suitable for residential development, but it also stated that uncertainty over the future of Point Cook Airport calls for a special response, and it goes on to suggest that low density residential development should be within the 13 ANEF contour and dwellings should be required to have noise attenuation measures. Mr Testro submitted that if that is the approach to a dwelling there would be scope for more flexibility in the case of a motel unit which has transient use and the main and most sensitive use would be at night time when the extent of aircraft movements at the Point Cook Airport would be at their lowest. He submitted that having regard to where the 13 ANEF contour lie and runs with respect to the proposed motel units what extent would that line make the two eastern units unacceptable but the two units to the west of them acceptable.

62 I consider having regard to the likely use of the Point Cook Airport, particularly at night, that such a condition is not necessary.

63 The additional conditions suggested by the Responsible Authority included a Drainage Management Plan, a Stormwater Management Plan, a condition with respect to external materials finishes and colours, and outdoor lighting. Such conditions would be appropriate.

64 I consider that summary drafting of the conditions in the Notice of Decision to Grant a Permit is appropriate, taking account of the comments above. I will provide for matters to be to the satisfaction of the Responsible Authority, VicRoads and the CFA where appropriate. It is also appropriate to include a secondary consent condition.

65 For the above reasons these applications are disallowed. It is appropriate for a permit to be granted, and I will so order.