Ritchies Stores Pty Ltd & Ors v Cardina SC & Anor [2009] VCAT 1232

1. In accord with Clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998:
   • (a) The name of the permit applicant is amended to Thomas Towns Pty Ltd; and
   • (b) Permit application T070749 is amended by the substation of plans TP-01-B, TP-02-C, TP-03-C and TP-04-B to TP-06-B, Project No V05-011 prepared by i2c Design & Management Pty Ltd circulated on 17 February 2009.
2. The decision of the Responsible Authority is varied.
3. In permit application T070749 a permit is granted and directed to be issued for the land at 383 - 387 Belgrave-Gembrook Road Emerald in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • The development of the land for the purposes of a supermarket and two speciality shops, associated buildings and works, removal of vegetation, reduction in car parking requirements and alterations of access to a road zone category 1.

Mr Peter O'Farrell of counsel instructed by Rockman & Rockman.

• Mr Raj Muthusamy, an engineer expert in road safety audits.

Mr Mark Bartley, solicitor of DLA Phillips Fox. He called as expert witnesses:

• Mr Craig Zarney, an urban and landscape designer from Hanson Partnerships Pty Ltd;
• Mr Mark Sheppard, an urban designer from David Lock & Associates; and
• Mr Angus Witherby, a town planner from Wakefield Planning.

Mr Nick Crawford, solicitor of Best Hooper solicitors.

Mr Ian Aspinall from VicRoads who attended on various days when matters of traffic engineering were under examination and on the final day of 27 April 2009.

Mr Jeremy Gobbo QC and Mr Chris Townsend SC instructed by Rigby Cooke lawyers.

• Mr Brendan Rogers, a town planner from Urbis Pty Ltd;
• Mr Tim Biles, an urban designer from Message Consultants Australia Pty Ltd;
• Mr Anthony Dimasi, an economist from Pitney Bowes;
• Mr Jason Walsh, a traffic engineer from Cardno Grogan Richards Pty Ltd; and
• Mr Greg Hocking, a landscape architect from Land Design Partnership Pty Ltd.

Expert witness statements were tendered by Mr Chris Goss and Mr Alan McCormack of Orbit Solutions (Photomontages) and Mr Roger Greenwood of Greenwood Consulting Pty Ltd (aboricultural impact assessment) but these experts were not required to be called or subject to cross examination by the parties or Tribunal.

Demolish an existing supermarket and one speciality shop and construct a new supermarket with a total floor area of 2,405sqm (including 200sqm of mezzanine floor area for office and staff amenities) and two specialty shops with floor areas of 177sqm and 198sqm each. An existing fish and chip shop of 91sqm floor area is to be retained.

Under croft and at grade car parking (131 spaces) will be provided along with landscaping to various boundaries. A loading bay sufficient to accommodate two vehicles at a time is to be provided along with pedestrian access from the under croft car park.

Section 82 Planning and Environment Act 1987.

Business 1 Zone (B1Z) - Clause 34.01 of the Cardinia Planning Scheme.

Schedule 3 of the Vegetation Protection Overlay (VPO3) - Clause 44.02 of the Cardinia Planning Scheme.

Wildfire Management Overlay (WMO) - Clause 44.06 of the Cardinia Planning Scheme.

Clause 52.29: Land adjacent to a Road Zone Category 1.

Clause 52.06-1 (reduction in the number car spaces).

Clause 52.29 (alter access to a Road Zone, Category 1)

Lot 3 and Part of Lot 2 PS424314M otherwise known as 383-387 Belgrave-Gembrook Road Emerald.

1. On 3 September 2008, Cardinia Shire Council (the Council) issues a Notice of Decision to grant a permit (the NOD) for the redevelopment of an existing supermarket and retail store in Emerald. There are objections to this decision. The objections are from Mr and Mrs Lambrou (the Lambrous) and from Ritchies Stores (Ritchies).
2. The Lambrous operate a fish and chip shop on the land to be redeveloped. Their shop is leased from the land owner who is also the permit applicant. We are told that the lease has another two years to run. The redevelopment does not remove their leased premises but instead builds around it.
3. The Lambrous grounds of objections are that:

The developer does not control the land proposed to be used for the purpose of the supermarket. The plans rely on land over which Mr & Mr Lambrou maintain exclusive possession and right of access and therefore the permit application is futile and should be dismissed.

The Development relies upon the relocation of the bus stop on Belgrave Gembrook Road to the front of the existing fish and chip shop placing it in direct conflict with parking for that shop. This is contrary to proper and orderly planning.

The loading arrangements are inappropriate and create conflict with the bus stop and ingress and egress from the fish and chip shop.

The Development provides inadequate parking ratio's for a 'stand alone' retail facility.

Pedestrian linkages to the Development are inadequate.

The Development would result in an unsatisfactory urban design outcome.

The Development would result would undermine [sic] the properly and orderly growth and maintenance of the Emerald town centre.

1. Ritchies operate a supermarket at the southern end of Emerald. They rely upon the following grounds of objection:

The construction of a large freestanding supermarket on this site will undermine the proper planning and operation for the Emerald centre. The resultant increase in activity at the eastern end of the Centre, without proper urban design and pedestrian connectivity and integration with the established Emerald area, is unsatisfactory.

The scale and design of the centre does not properly reflect the Emerald Village atmosphere with a large wall/blank façade to the north-west and inadequate articulation in wall treatments to the other facades.

The access for loading and unloading is unsatisfactory and further fails to make provision for waiting vehicles. Loading arrangements under the retail component of the development are impractical.

The relocation of the bus stop will lead to conflict with pedestrians and buses in Belgrave-Gembrook Road in the vicinity of the intersection with Emerald-Monbulk Road. The proposal seeks to relocate the bus stop to a position in front of the existing fish and chip store, which itself generates traffic and would create conflicts.

The proposal builds around the existing fish and chip shop on the land and will:

• Prevent the established parking that has been associated with the use;
• Remove loading access from the fish and chip shop facility.
• Seeks to relocate a bus stop to the front of the store with negative implications for the ongoing established use.

The ingress and egress to the car park and proposed internal layout of the car park are unsatisfactory.

The number of car parking spaces to be provided is unsatisfactory.

The development would result in a net community disbenefit.

The development is inconsistent with the provisions of the Cardinia Shire Council Planning Scheme.

1. Both parties pursued these grounds in the hearing, although with varying degrees of vigour and emphasis. The grounds raise a number of issues that we can conveniently summarise to be about:
   • The urban design of the buildings;
   • Interface issues;
   • Traffic management issues;
   • Car parking and
   • Economic benefit.
2. In making submissions made in support of these grounds, particularly that of benefit, the review applicants raised issues in relation to the use of the site. We can however, summarily dismiss such grounds for a number o f reasons. Primarily amongst these is the fact that a permit for use is not required.[1]
3. Secondly, we have been taken to extensive evidence of the strategic planning merits of this proposal and relevant strategic planning undertaken by the Council for Emerald.[2] There is a consistent strategy for intensive retail/commercial development in this northern precinct. Activation of the precinct is sought to increase economic development, employment and connection with the central and southern business precincts that will provide improved local services to Emerald and its surrounds. An anchor development of this site is sought under these various strategies. Given such strategic support, we find that as a use of the site, this development meets these strategic intents.
4. Save for the matter of economic benefit which we deal with later is these reasons, we see no need to entertain such questions about the proposed use any further. In these reasons we will focus on the consideration of development issues, i.e. design, interface issues, parking and traffic and the like, as raised in the grounds and the submissions and evidence of the parties.
5. In addition to these grounds, the Lambrous and Ritchies raised questions of law. Submissions made by Mr O'Farrell and Mr Bartley elaborated on these questions, said to arise from the proposal relying on adjoining land for the purposes of works that, it was submitted, were part of the supermarket use and development. The objectors requested that a legal member determine these matters prior to determination of the merits.
6. We set out in these reasons our consideration of the various submissions and the evidence that was called, as far as it is relevant to our decision.
7. We also re-state our decision, given at the end of the proceeding, to affirm the decision of the Responsible Authority to grant a permit, although we do so on the basis of modified conditions.
8. In delivering this decision, we record here that we did so only after we took submissions and heard from the parties as to the questions of law and the agreement of all parties that if we found that the development could proceed without relying on any use of adjoining land then that question would not arise. Our reasons for arriving at this conclusion and not needing to refer the questions of law to a legal member prior to delivering our decision are also set out below.

1. We here deal with two preliminary issues. One is the question of the rights over the use of the land contained in the Lambrous grounds. The second is why we have considered it unnecessary to require consideration of the questions of law to which we have referred to earlier.

1. The Lambrous raise issue with the control and rights of the land which would be the subject of redevelopment. It is their contention that a utility area to the rear of their shop and land designated for parking to the north-east are an inherent part of their shop and its operation. They submit this arises from lease arrangements with the landowner and from permits issued for the development and use of the land for their shop and an adjoining shop.
2. We turn first to the matter of the lease. It is submitted that the Lambrous have exclusive possession to the land on which their shop is situated by way of a lease. It is argued that the exclusive possession means that the Thomas Towns could not act on the new permit were it to be granted. We are urged to consider that the pursuit of the planning permit is therefore futile.
3. Thomas Towns argues that the lease arrangements are irrelevant to the determination of the merits of the planning permit.
4. The matter of ownership and commercial land agreements was at issue in the Hickey matter.[3] In that matter Smith J found inter alia, that commercial landownership arrangements are not relevant to the issue of planning permit.[4] His Honour held that the lack of consent of a landowner would not invalidate a permit application given the lack of statutory or regulatory provision to do so. His Honour states that what the Planning and Environment Act 1987 (the P&E Act) requires is that the views of affected people including the landowner(s) are to be taken into account through the various mechanisms of the P&E Act at ss.48 and 52.[5]
5. In our view, the submission made by Mr Gobbo that the commercial arrangement between the owner/permit applicant and the Lambrous is irrelevant to our decision making is the correct one to take. Such a view is consistent with the principles underlying the Hickey decision. In this permit application, the permit applicant is the landowner in fee simple as is defined under the P&E Act. If there is a dispute as to how the implementing of a planning permit may impact on the Lambrous rights under the terms of a lease, that is for another jurisdiction to decide on. The landowner (or for that matter other persons) are entitled to make an application for a planning permit for the subject land.
6. This does not mean that the Lambrous have no recourse under the P&E Act. They are potentially affected parties by way of this proposal and have rights to object and / or apply for a review of the decision of the responsible authority.[6]
7. Submissions were also made in respect to an existing permit which provides for the development and ongoing use of the fish and chip shop on the land.[7] It seems to us that what is argued is that this permit prevents the grant of another. We express some surprise as to this, as we find such a submission spurious.
8. Just because one permit exists for the portion of land on which the fish and chip sits does not by way of its existence prevent the application for, or granting of a new permit for entirely different purposes (use and / or development). Nowhere in the P&E Act is the application for a permit prohibited in this way. Indeed, it would be unusual if it did, as such a prohibition would see no new permits issued for sites with existing permits for development and / or uses.
9. We were referred to the existing permit and in particular the terms of conditions 2 and 10. It would seem to us that the terms of condition 2 bear out the spurious nature of the claim made by the Lambrous. This conditions sets out that:

The development shown on the endorsed plan(s) must not be altered or modified without the prior written approval of the Responsible Authority. Where any proposed amendment to plans leads to a considerable change to the use and / or development permitted a further formal permit application by the permit holder and further permit approval by the Responsible Authority is required.

1. It seems blindingly apparent that the permit application before us meets the terms required for a new permit application where there is 'considerable change' and that the Responsible Authority is willing to give approval.
2. Mr O'Farrell relies on the Benedetti decision[8] that the existing permit has effect over portions of the land to be developed and that the permit conveys ongoing rights to the Lambrous as the lessee and operator of the shop to that land. We have no debate as to the findings of the Benedetti decision. It is however a decision that in our view can be distinguished from our proceeding on the basis of the facts before us.
3. In the Benedetti matter, the applicant had the benefit of a permit that limited further development of the site in terms different to that in the permit referred to by Mr O'Farrell but of similar affect, i.e. the layout and nature of the building and works are not to be changed without the consent of the Responsible Authority. There the similarity with our proceeding ends.
4. In Benedetti, it was argued that the permit holder undertook works that no longer required permission under the planning provisions in operation at the time of those works and these planning provisions rendered the earlier permit conditions to be redundant. Amongst other findings, Osborne J upheld a tribunal decision that the works were in breach of the permit conditions, finding that such conditions were still to apply to that development beyond the development phase of the original permit and despite the changes in the applicable planning provisions. It is relevant that His Honour did not find that an amendment to the old permit could not be applied for to provide for the works (the granting of which would then be a matter of merit).
5. Unlike the Benedetti matter, in this proceeding there is an application for a new permit, one that envisages new developments and works for the subject land in accord with the applicable planning provisions. It is true to say that the application requires consideration of matters relevant to the ongoing use of the Fish and Chip shop development but the existence of the earlier permit does not prevent such considerations in contemplation of this new permit.
6. The Lambrous argue that the benefits that they enjoy by way of the existing permit requirements will be adversely affected. These benefits include the provision of customer and shop operator parking as well as the areas available for waste and other storage areas at the rear of the shop. These are issues of merit as to whether or not the new use and development can acceptably provide for the ongoing requirements of the fish and chip shop. They also form the basis by which the Lambrous come to the table as affect parties. They are not however matters that at first instance are prohibitive of a new permit being contemplated. The new permit application before us contemplates new arrangements and uses of the land to address these requirements. It is therefore a matter of merit as to whether such new arrangements are satisfactory and a new permit granted.
7. It follows from the above reasons that the existence of a lease between the landowner and the Lambrous and the existing permit are not prohibitive of a new planning permit and subsequent development being contemplated. The granting of a permit for this land turns on the consideration of the merits of the proposal, merits issued that include those raised by the Lambrous (and Ritchies) as set out in these reasons.

1. We set out earlier in these reasons that Ritchies sought for a legal question to be dealt with in respect to the use of the adjoining property for works in association with the proposed redevelopment of the subject site. That question arose from plans that showed earthworks and landscaping on the adjoining property as part of the overall development. Ritchies submit that the earthworks are part of the use and development of the site and that the use and development therefore occurs in part on Green Wedge zoned land, being that land adjacent to the subject site. Being part of a retail use, Ritchies argue that such works are illegal as the supermarket use is prohibited under the zone.
2. At the commencement of hearing, plans were submitted on behalf of the permit applicant indicating that a modified form of construction can be utilised that does not require earthworks on the adjoining Green Wedge zoned land. Mr Gobbo submitted that the issue of works on the land need not arise.
3. Ritchies and the Lambrous response to the revised plan of construction is that if landscaping on the Green Wedge zoned land is to be relied upon (whether by the permit applicant or by the Tribunal) as part of this proposal then the question of law remains, albeit in different terms but to the same effect.
4. For reasons we set out later, we do not find there is a need to rely on any requirements for landscaping on the adjoining land. We have found this to be on the basis of merit, after considering relevant provisions and planning scheme policies. There is therefore no works, whether of a structural kind or for landscaping that falls within the Green Wedge zoned land. As agreed by all the parties at the hearing, if we found this to be the situation, we have no need of considering these questions of law.

1. The Lambrous and Ritchies raise issue with various design elements of the proposed development. We will address those issues we found to be determinative to our decision.

1. It is useful to our reasons to first set out the setting of the proposed development.
2. The subject site is the northernmost location of B1Z land in Emerald. It is generally recognised as the 'northern retail precinct'.[9] It is also recognised as the northern gateway to the overall Emerald retail / town centre. We recognise that such a location is of elevated significance in establishing the character of the town.
3. To the immediate north and east of the subject site is land zoned Green Wedge A (GWAZ) - the use of which appears to be predominantly for semi-rural (lifestyle) residences. To the southeast is Worell Reserve (PPRZ), beyond which lie residences in a Low Density Residential Zone (LDRZ). To the south-west are small allotments of B1Z land, some of which have been developed. To the west are further residences on LDRZ land beyond which lies rural conservation zoned land (RCZ2).
4. The retail centre precinct of Emerald lies along a ridge line. Views of the centre are limited by undulating topography and vegetation. Direct views of the subject site are gained from approaches along the ridge line (from the south) and from the north and north-east. Relevantly the adjoining residential precincts to the north and north east are said to be characterised by heavy vegetation screening with linear views along tree lined road corridors.[10] Our site inspection bears out such characteristics.

1. Amongst other matters, the Lambrous' submissions take issue with the design response to the Belgrave-Gembrook Road frontage. Mr O'Farrell submits that the fish and chip shop is 'engulfed' by the frontage and that 'no real streetscape activity' arises from the design. He suggests that this streetscape has been dealt with as a 'back of house' environment.
2. Ritchies is similarly critical of the design outcomes along the Belgrave-Gembrook Road frontage. The evidence of Mr Sheppard and Mr Czarny speak of a failure to present an active street frontage (apart from the speciality shops), a back of house appearance (including the presence of the loading bay) and inadequate articulation of built form.
3. We do not agree with these submissions and do not accept such evidence.
4. As we have noted the subject land is considered to be the northern gateway to the commercial centre of Emerald. Its location requires attention from three perspectives:
   • The approach or departure from town along Belgrave-Gembrook Road;
   • The approach or departure from town along Emerald-Monbulk Road; and
   • The approach from the southern, central Main Street toward the site.
5. There was little in contest about the approach from the centre of town toward this site and its design. We think that is for good reason. We consider that the design reflects its gateway vista from this approach and fits within the built form and character, including the larger built form of centrally located buildings.
6. There are two aspects to the Belgrave-Gembrook Road that require consideration; the approach from the northeast and the departure to the northeast. In approaching from the northeast, views of the subject site are limited by vegetation along this road. It is further limited by the geometry of the road, being first seen on close approach after a sweeping corner. What will be most prominent from this approach is the corner speciality shop and its tower like structure. What will become evident on closer approach is the fish and chip shop, the slatted pedestrian ramp and the bus stop.
7. When departing to the northeast, the view will take in the same built forms but because there is an increasing set back due to the angled nature of the site and the fall of the land, we consider that the presence of these buildings will give way to the approaching tree lined streetscape of Belgrave-Gembrook Road. From this aspect a 'busy' design that promotes a perception of high activity would override what has been characterised as an important character of Emerald, that is the deference of built form to vegetation landscapes and tree lined linear corridors. It is our conclusion that the simple design lines along this streetscape appropriately defer to the tree lined corridor.
8. Mr Czarny suggests views of the built form along this road will be bland and box like. We do not agree. There is no disputing the rectangular nature of the various elements of the building. However they are variously juxtaposed to present simple articulated form. There are also variations in colour and finishes. There will be a mix of low vegetation and some trees along this frontage to blend the site with the vegetated character of this road. It is a functional and acceptable design that we consider fits with the presentation of its use.
9. We also consider that in providing a mix of two speciality retail shops, the existing fish and chip shop and bus stop, there will be sufficient sense of activity. We do not consider the development will result in a back of house feel along this streetscape.
10. We dismiss submissions that the loading bay will dominant the view and perception of this streetscape. The loading bay will be seen all but fleetingly from the northeast because of its setting to the rear of the south-east corner with its entry being some 16-18m from the roadside. The rear of the bay is a further 20m deep with a high wood paling screen facing toward the northeast boundary. From the west, the deep setting of this bay, will as we have previously noted be peripheral to the main streetscape vista.
11. It is submitted that along this frontage the fish & chip shop has been 'shoehorned' into the development and this will present an unacceptable design outcome. Rather then shoehorned, we accept that it will be obvious to the passer-by that this shop has been built around. To some it may seem odd. To others it may present an interesting contrast. We find the contrast between the shop and the development around it to be inoffensive to the overall streetscape outcome and not a reason on its own to refuse the granting of a permit.

1. Much was said by the applicants as to the design response along the Emerald-Monbulk Road streetscape that was central to their view that the overall design outcome is unacceptable. The submissions and evidence put to us is that this streetscape requires an active frontage with the supermarket being closer to the frontage. It is submitted that if this was done, then the interface issues to the green wedge land, the location of the loading bay and all other design issues highlighted by the applicants for review could be dealt with in an acceptable manner.
2. It is argued by the review applicants that to activate the street frontage the supermarket building should be built to or only have a small setback from the street frontage along with expansive use of glazing to create that sense of activity. In this instance we do not agree that this is necessary or desirable for the following reasons.
3. The existing character and setting along Emerald Monbulk Road is strongly defined by the avenue of Pin Oak trees. The existing supermarket defers to this character with the front, at grade parking areas and single storey frontage. The proposed design essentially adopts the same approach. Further, the streetscape will be enhanced by the replacement of Birch trees with further plantings of new Pin Oak trees.
4. We consider this is to be a respectful approach to the existing character and is acceptable for the context of this site. The building line is set back from the avenue of trees. It presents a high single storey form consistent with modern supermarkets and presents a mix of glazed and solid façade into the car parking area that utilises the setback space. So while setback, there remains some sense of activity within the building, more so than presented by the current supermarket. The upper built form that contains the mezzanine floor is set back deeper from this frontage so as to be acceptably screened for all but its upper portion.
5. As well as being respectful of the streetscape, the placement of at grade car parking to the fore of this street results in a functional outcome that we find acceptable. It enables disabled car parking to be located at the front entrance to the supermarket. It will also provide spaces for those seeking to patronise the speciality and fish and chip shop, it will be readily visible to customers as to whether such parking is available before proceeding to the under croft area.

1. It is said by the applicants for review that in providing the car parking space and deep setback to Emerald-Monbulk Road the layout results in the building having to abut the eastern boundary line. It therefore results in a high[11] blank wall presenting to the adjoining property. This is said to be unacceptable given that the nearby presence of dwellings on the adjoining land and that lands Green Wedge zoning.
2. The scheme of the design before us now would see the wall height extend from natural ground level of the site. No landscaping or construction of earthen bunds is proposed along boundary. The height of this wall is an artefact of the slope of the site, the maintenance of the building evenly from the front to the rear of the site and the provision of the under croft parking area.
3. We do not consider this outcome to be unacceptable for the following reasons.
4. The design includes a series of openings at the basement grade level to provide light and airflow. A series of vertical battens are provided across these openings, said to provide security and architectural interest. The tilt panel walls are also to be finished in a series of graded earthy tones with expressed vertical panel joints. This grades toward the north-west corner, the highest corner into a series of chequered painted concrete panels with a mix of earthy and grey sky tones.
5. Given these features we reject the notion that this wall will be bland. It utilises a mix of façade finishes and architectural detail that is functional and addresses its scale and setting.
6. The wall is also some 30m from the dwelling to the north and 16m from a (currently derelict) dwelling to the northwest on the same property. There is existing canopy and understorey vegetation between these dwellings and the site that will filter views of the wall. Further, both dwellings are oriented in a manner that would result in only oblique views from within each dwelling toward the wall. Undoubtedly, the wall will be visible from elsewhere on this property, but we do not consider that such views will unreasonably impact on the property's amenity. It is large property that can accommodate future uses with its principal views to the north-east remaining unaffected.
7. Other dwellings to the north and west are well screened from the site as a result of intervening vegetation and the topography of the area.[12] We do not consider that the amenity of these dwellings will be unreasonably impacted by the presence of this wall on the site's northern boundary.
8. This brings us then to consider the appropriateness of such an interface to the Green Wedge zone, which the applicants for review so strongly urge as being inappropriate.
9. Such interface issues are often raised. It is generally accepted that in the urban situation, those developments in a B1Z that interface with residential 1 zoned land (R1Z) must be respectful of that interface. Indeed the decision guidelines call for such consideration of interface impacts.[13] It has also been generally accepted by various tribunals that the level of R1Z amenity cannot be the same for R1Z land that interfaces to B1Z land. We see parallels in this situation.
10. It ought not be forgotten that the purpose of the B1Z includes the encouragement of intensive development.[14] The Council, as planning authority, after considering various requirements has provided for B1Z land that directly abuts GWAZ land. Such an outcome must be taken to have considered the interface outcomes of placing an area of intensive development adjacent to GWAZ land. This does not mean that intensive development can occur carte-blanche. As we noted earlier, interfaces to adjoining zones are required to be considered.
11. We think it relevant to consider the purposes of the adjoining GWAZ land, which include:

To protect, conserve and enhance the biodiversity, natural resources, scenic landscapes and heritage values of the area.

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

To recognise and protect the amenity of existing rural living areas.[15]

1. The applicants for review press upon us the impact to the landscape and amenity of existing (rural living) residences. We have already set out that we do not find that the amenity of such residences will be unreasonably affected. In respect to the landscape issue, it is clear to us that the purpose of the zone refers to the protection of landscape values including rural character within the land so zoned. There is therefore a distinction to be made between the views into Green Wedge zoned land as opposed to views from Green Wedge zoned land into B1Z land.
2. It is a rather obvious point, but we will make it nonetheless that views into the Green Wedge zoned land will remain unaffected whether from adjoining land or from further a field. What is under contention is the views from Green Wedge land into the site.
3. The site is B1Z. Its level of visual amenity is different to that of the Green Wedge land. The level of amenity to be maintained can be ascertained from local policy[16] and the Council's Emerald township strategies that we were referred to. These policies seek to maintain the towns specific character, although it is left to the development of individual town strategies to describe and prepare design guidelines for such character. To this end, we were referred to the two Emerald strategy documents we have noted earlier in these reasons and principally the draft Emerald District Strategy. We recognise that these strategies are not incorporated documents in the planning scheme. Nevertheless, it is these strategies which policy relies on and so we have given some consideration to them.
4. Amongst other matters, the strategy documents recognise that the topography of Emerald will result in special consideration when designing built form. It will not be like designing for a flat Melbourne urban area. We have taken this to mean that amongst other outcomes, that buildings built at grade to their main road frontages will, because of topography, protrude out over the falling ground levels. The result will be some higher built form to the rear of such site. We are also aware of the highlighted character of buildings blending in with the vegetated character of Emerald, including the tree lined road corridors and overall bush setting. It must be recognised however that views into Emerald are going to see some built form.
5. We have already set out that we are satisfied that views of this proposed building and the high rear wall will be limited and of acceptable consequence. Longer range views will be ameliorated by the effect of distance and screening from existing vegetation. We are therefore satisfied that notwithstanding the height of the rear wall, the setting and surrounding vistas will not be unreasonably affected and not detract from the character of Emerald. We find that the design meets the various interface tests and is acceptable.

1. The applicants for review raise further what they contend to be a poor interface to the adjoining residence to the northwest of the site.
2. We do not agree that the interface is unacceptable. The proposed supermarket building is setback from the boundary by way of the two way access lanes into the under croft car park. A high, green landscaped, acoustic wall is to be maintained along this common boundary. The boundary interfaces with utility structures on the adjoining property, namely a carport and a garage. There are no overshadowing impacts. There is sufficient setbacks between the building and the dwelling to negate any purported traffic noise impacts. An acoustic wall is also proposed to further address potential noise impacts.
3. Mr Bartley relies on the evidence of Mr Sheppard that there will be visual amenity impacts and screening landscaping such as trees along this interface is required. Mr Bartley suggests that the amount of landscaping provided on this interface is inadequate and cannot accommodate such trees.
4. We note the presence of trees already along this interface. We also note the acceptable setback of the built form. The orientation of the neighbouring lot is such that vista's to the principal northerly rural views remain unaffected by the supermarket proposal. We do not agree with the submissions of Ritchies and find there is no case to answer in respect to unreasonable visual or other amenity impacts to this property.

1. The Lambrous submits that the provision of customer car parking for their purposes are useless and Ritchies submissions suggest that the tandem staff car parking and other elements of the under croft car park are unworkable. Both parties submit that the ramp access from the under croft car parking is unsatisfactory.
2. Mr Walsh was called to give traffic and parking evidence on behalf of Thomas Towns. His unchallenged empirical assessment of car parking rates indicates a peak demand of 124 spaces with 131 spaces being provided. The demand includes staff and customer requirements for the speciality and fish and chip shops. Allotted staff parking is to be provided for the fish and chip shop.
3. We accept Mr Walsh's evidence that the number of parking spaces and the layout is acceptable. The use of tandem parking spaces for staff parking is not uncommon and we do not view such arrangements as unworkable. We note also the provision parking for staff at the fish and chip shop is adequate in number and is located at a convenient point for access to that shop.
4. In respect of the Lambrous' submissions that the new parking arrangements will be unsatisfactory for their business, we find such claims are not substantiated. Instead we find we agree with submission made on behalf of Thomas Towns as to the benefits of this proposal. These are said to include an anchor business (the supermarket) that will provide an increase in activity at the site which will provide the Lambrous with an opportunity to capture a greater market if they are so inclined to do so. Parking for such customers is, in our view, convenient and provides access from at grade or under croft areas readily and easily to the supermarket, the speciality shops and the fish and chip shop.
5. We are satisfied that despite claims to the contrary, the placement of the pedestrian ramp between the supermarket, the speciality and fish and chip shops is one that is appropriate, providing clear and easy access to each of these businesses.

1. The applicants for review question the arrangements for traffic management into, out of, and around the site. Mr Muthusamy's evidence is that:
   • The speciality shop will most likely reduce the sight line at the roundabout;
   • The loading bay arrangement will result in a reversing movement near the bus stop, fish and chip shop, parking bay and area of pedestrian movement; and
   • The loading bay will require an illegal right turn movement for egress with poor sight lines for vehicles travelling into Emerald from the north.
2. Mr Aspinall submits that at this planning permit stage, VicRoads has some concerns that centre around the bus stop and loading bay as well as access into and out of the parking areas. However VicRoads do not consider these issues to be insurmountable and are to be addressed in functional layout and engineering plans, which will be subject to a safety audit and VicRoads approval.
3. Under cross examination, Mr Muthusamy acknowledged that the normal course of events was not to undertake a safety audit until the functional and more detailed design stage has been completed. He concedes in terms that we understand to mean that his review of the plans was a preliminary assessment of issues rather than definitive, death knell to this proposal.
4. The question is therefore whether the concerns of VicRoads and the safety issues of Mr Muthusamy can be addressed in the detailed design. Having inspected the site and observed traffic movements around the site, we concur that there are issues with respect to this proposal, largely in respect to egress from the loading bay and the reduction in sight lines at the corner speciality shop. However, we do not consider them to be so severe as to be reasons for not granting a permit.
5. In respect to the loading bay, we accept the evidence of Mr Walsh that the reversing movement required to enter the bay is not unusual for supermarket sites. Further, and more importantly, we note that such reversing movements will not occur on the main road, but in the service lane area. Here traffic movements will be slower and there is more time to observe and respond to such movements by other traffic in this area. The movement of trucks will be highly visible to other drivers and pedestrians.
6. In respect to pedestrian movements, we have had regard to the lack of formal pedestrian paths and surrounding context of land use. It is evident that in the main, pedestrian movements to the east will be toward the reserve, east of the site, and the pedestrian path along Old Gembrook Road. Accordingly, we concur with submissions that there will not be a high degree of pedestrian traffic in this area.
7. In our view, the degree of risk for conflict around the loading bay put to us by the Lambrous and Ritchies is overstated and not supported by the evidence and facts we have set out.
8. We acknowledge however, the potential for traffic conflict between large, slow moving truck exiting the bay and moving to the south. We also consider that the degree of splay provided for at the corner speciality shop is minimal in its provision of northerly sightlines on approach to the roundabout. We note the disparity between expert opinions as to the adequacy of these sightlines.
9. The heart of such disagreement lies in what approach speeds and standards to apply in this situation. Ultimately, we concur with the evidence of Mr Walsh that the approach speeds past the loading bay and toward the roundabout are regulated by the existing sweeping bend in this approach and the readily apparent need that on exiting this bend there is a need to slow down for the approach to this round about. We are also reassured by VicRoads' submission that the issues are not insurmountable in the detailed design stage.
10. To ameliorate such issues may require some trimming of roadside vegetation and other traffic engineering measures. We do not consider that the extent of such measures is likely to be so offensive to applicable planning outcomes to warrant a refusal or redesign of this proposal. On the balance of these traffic matters, we find the weight of evidence is in favour of the proposal.

1. Objections to the proposal raise issue with the claimed benefits of this development, particularly the supermarket.
2. In respect to these matters we accept the evidence of Mr Dimasi. In our opinion, he presented a sound assessment of economic and other flow on benefits that will arise from this proposal that are relevant to our decision.[17]
3. Notably the proposal is expected to increase the competitive service of supermarkets to Emerald and the surrounding customer catchment without undue impact to others and assist in achieving objective to increase economic activity within the northern retail precinct of the town. In his words the regeneration of the supermarket will assist in anchoring the second of two retail centres in Emerald - the second being the southern end of town where the Ritchies' supermarket and other retail activity anchored that centre. The anchoring of this site in this way is consistent with the Council's strategies for Emerald. We see no reason to uphold this appeal on these grounds.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the Responsible Authority should be affirmed and a permit be granted. In respect to conditions on the permit, we have had regard to those conditions contained in the Notice of Decision and submissions made by the parties.
2. As suggested by the Council we have taken the opportunity to consolidate a number of conditions and address a number of matters that arose from submissions and the evidence of the parties.
3. We shall direct the issue of the permit with these modified conditions.

The permit allows the development of the land for the purposes of a supermarket and two speciality shops, associated buildings and works, removal of vegetation, reduction in car parking requirements and alterations of access to a road zone category 1 in accordance with the endorsed plans and permit conditions.

1. The development must not be commenced until three copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale and dimensioned in metric units. The plans must show:
   • (a) Deletion of earthworks on the north-east boundary and use of constructed walls to natural ground level with footings or similar as per Partial Section XX circulated in VCAT proceeding P2785/2008.
   • (b) An acoustic fence along the north western fence. The fence design must be prepared by a suitably qualified person approved by the Responsible Authority as having sufficient competence in that field. The design must show approximate height and proposed materials.
   • (c) The location of lighting and a lighting plan.
   • (d) The location of all bicycle parking facilities (as recommended in the expert evidence report of Mr Jason Walsh of Cardno Grogan Richards dated 27 February 2009), seats, rubbish bins and garbage collection points.
   • (e) Details of all external colours and finishes.
   • (f) Set of plans VO5-011 TP03 revision C that shows the updated pedestrian walkways and trolley bays.
   • (g) A landscape plan, prepared by a landscape architect or person approved by the Responsible Authority as having sufficient competence in that field showing species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs. The plan shall be in general accord with the landscape concept plan prepared by Land Design Partnership Drawing No: LSK 01 dated April 2008.

all to the satisfaction of the Responsible Authority.

1. The layout of the site and the size and extent of the proposed buildings and works, as shown on the approved plans, must not be altered or modified without the written consent of the Responsible Authority.
2. Once the development has commenced, it must be continued and completed to the satisfaction of the Responsible Authority.

Department of Sustainability and Environment conditions

1. Before the development starts, a tree protection fence must be erected around the large Eucalyptus sp. trees to define a Tree Protection Zone. The tree protection fence must remain in place until construction is completed. Before the development starts, the ground surface of the Tree Protection Zone must be covered by a 100mm deep layer of mulch. The Tree Protection Zone must be watered regularly to the satisfaction of the Responsible Authority.
2. Except with the written consent of the Responsible Authority, within the Tree Protection Zone:
   • (a) No vehicular or pedestrian access, trenching or soil excavation is to occur.
   • (b) No storage or dumping of tools, equipment or waste is to occur.

1. Prior to endorsement the plans must be amended and forwarded to the Responsible Authority and VicRoads for approval. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application but modified to show any alterations necessary to ensure compliance with VicRoads requirements detailed in this permit.
2. Prior to endorsement of the plans and prior to commencement of any roadworks authorised by this permit, the applicant must arrange for functional layout plans for the access arrangements to Belgrave-Gembrook Road and Emerald-Monbulk Road to be prepared to the satisfaction of VicRoads and the Responsible Authority.
3. Where any roadworks associated with the access arrangements, including footpath and nature strip, lie within the subject property along the Belgrave-Gembrook Road and Emerald-Monbulk Road, a widening of the road reserve will be required, at no cost to VicRoads. The applicant must engage a licensed surveyor to prepare a plan of subdivision showing the affected land labelled ROAD which is to be vested in the Roads Corporation upon certification of the plan of subdivision, without any encumbrances. Subsequent to the registration of the plan, the applicant must ensure that the appropriate original Certificates of title that issue in the name of the Roads Corporation are forwarded via registered post to: VicRoads - Property Services Department, 60 Denmark Street Kew, 3101.
4. Prior to commencement of any roadworks authorised by this permit, the applicant must arrange for the following documents to be prepared to the satisfaction of VicRoads:
   • (a) Detailed engineering plans of the access arrangements and associated roadworks on Belgrave-Gembrook Road and Emerald-Monbulk Road.
   • (b) A Road Safety Audit that reviews the detailed engineering plans. The Road Safety Audit must be prepared by an independent VicRoads pre-qualified road safety auditor, and be conducted in accordance with Austroads-Road Safety audit (Second Edition, 2002).
5. The detailed engineering plans for roadworks on Belgrave-Gembrook Road and Emerald-Monbulk Road must be amended to address any items raised in the Road Safety audit to the satisfaction of VicRoads prior to the approval of the plans.
6. Prior to the commencement of any roadworks on the Belgrave-Gembrook Road or Emerald-Monbulk Road reservations authorised by this permit, the applicant must:
   • (a) Provide a bank guarantee, without a termination date, to VicRoads for a sum equal to the estimated cost of roadworks.
   • (b) Provide evidence that the contractor has a public liability insurance policy for at least $10 million which will be effective for the duration of the works.
   • (c) Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor.
   • (d) Have first applied for, and received, written consent from VicRoads for the roadworks in accordance with Section 63 of the Road Management Act 2004.
   • (e) Provide payment to VicRoads of the pre-estimated certification audit fee.
   • (f) At least 21 days prior to the commencement of roadworks, provide VicRoads with a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the roadworks. The Traffic Management Plan must be prepared in accordance with VicRoad's Worksite Traffic Management (Roadworks Signing) Code of Practice.
   • (g) At least seven days before construction is planned to commence, arrange for the contractor to notify the Department of Infrastructure of the proposed works affecting any on road public transport services.
7. The standard of all materials and works within the Belgrave-Gembrook Road and Emerald-Monbulk Road reservations must be in accordance with VicRoads' Standard Specifications for Roadworks & Bridgeworks to the satisfaction of VicRoads.
8. The applicant must engage an approved VicRoads contractor (pre-qualified at the appropriate level or as otherwise approved) to undertake all works within the Belgrave-Gembrook Road and Emerald-Monbulk Road reservations.
9. The applicant must arrange for construction of the roadworks along Belgrave-Gembrook Road and Emerald-Monbulk Road to be completed in accordance with approved plans and to the satisfaction of VicRoads.
10. The applicant, in consultation with VicRoads, Department of Infrastructure, Council and the relevant bus company, must determine suitable allowances for any on road public transport requirements.
11. The applicant must arrange for and pay the full costs of all public works required to satisfy VicRoads' conditions pursuant to this permit.

Conditions required by the Responsible Authority

1. Before the development commences a stormwater drainage management plan must be prepared to the satisfaction and approval of the Responsible Authority. The stormwater drainage management plan must be prepared by a suitably qualified person. The stormwater drainage management plan must provide details of the proposed stormwater drainage works including all existing and proposed features that such works may have an impact on, the use of stormwater detention and / or other acceptable water sensitive urban stormwater treatment systems and connection to a legal point of discharge.
2. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
3. All stormwater drainage works must be undertaken in accordance with the approved stormwater drainage management plan.

1. Prior to the commencement of the use, the permit holder must:
   • (a) Design and construct all proposed road and drainage works in Belgrave-Gembrook road and Emerald-Monbulk Road, in accordance with plans and specifications approved by the Responsible Authority and VicRoads.
   • (b) Provide appropriate drainage outlets for the landscaped traffic island areas.
   • (c) Surface the areas indicated for access, circulation, loading and parking with asphalt or concrete and delineate all parking bays and loading areas to the satisfaction of the Responsible Authority.
   • (d) Construct industrial standard concrete vehicle crossings at the car park access points to the approval and satisfaction of the Responsible Authority.
2. A Vehicle Crossing Permit must be obtained form Council prior to the commencement of works associated with the proposed vehicle crossing.
3. Where existing crossovers will not be used for the development, they are to be removed and the nature strips reinstated at the cost of the owner to the satisfaction of the Responsible Authority.

1. The layout and dimensions of the proposed access, loading bay and parking areas must generally be in accordance with the requirements of Clause 52.06 of the Cardinia Planning Scheme and to the satisfaction of the Responsible Authority.

1. All direction sign(s), each not more than 0.3 sq m in area, must be provided at access points to clearly indicate the direction of traffic movement and location of parking area(s).

1. Before the use starts, a Construction Management Plan (CMP) for the management of the construction works to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The CMP plan must address to the satisfaction of the Responsible Authority but not necessarily be limited to the following requirements:
   • (a) The control of erosion from exposed soil or loose materials stored on the site;
   • (b) The control of polluted and/or sediment laden run-off such that no such runoff is discharged directly or indirectly into any drains or watercourses, including Melbourne Water drains or water courses, without appropriate treatment;
   • (c) The storage of fuels, oils, waste materials and other potential pollutants to prevent loss, contamination of runoff or other impacts to the environment;
   • (d) Dust suppression measures to prevent the generation of nuisance to adjoining property owners; and
   • (e) The movement and parking of all work vehicles, including trucks, associated with the works for this development.

The construction works must at all times be conducted in accordance with the CMP.

1. The removal and retention of vegetation must comply with all recommendations of the arborist report (Aboricultural Construction Impact Assessment) by Greenwood Consulting, May 2008.
2. Prior to the commencement of works a tree management plan is produced to the satisfaction of the Responsible Authority for all trees that are to be retained, as directed in the arborist's report by Greenwood Consulting (titled 383 Emerald-Monbulk Road, Arboricultual Construction Impact Assessment, May 2008). The plan must detail management activities and their implementation and must;
   • (a) Describe how the trees will be protected during construction works.
   • (b) Direct management activities to improve the health of the trees over a two year period.
   • (c) Be completed by a suitably qualified arborist.
   • (d) Detail all costs involved in implementing the plan.
   • (e) Direct offset planting of 35 indigenous native plants for every tree that perishes during the management period.
3. Prior to the commencement of works, a bond for all costs to implement the tree management plan must be paid to Council. Payment can be in the form of a cash bond or bank guarantee to the value of 100% of the tree management works. A twenty-four (24) month maintenance period will apply to all landscaping works, following which time and upon satisfactory completion, the bond will be released.
4. All works within the critical root proximity of the retained trees must be planned and undertaken under the supervision of a qualified arborist.
5. Any changes to the design that affects the optimum root proximity of the retained trees must be made in consultation with a qualified arborist.

1. Details of anti-graffiti measures for the walls of the supermarket building to the satisfaction of the Responsible Authority.
2. Any Council or service authority asset within the adjoining road network which it can be established was damaged as a result of any works or deliveries undertaken to complete the approved development, must be upon demand, replaced/reinstated to the satisfaction of the Responsible Authority.
3. Prior to commencement of the proposed use, all proposed access, circulation and parking areas must be surfaced with concrete, asphalt or other approved hard surfacing material and the parking areas delineated to the satisfaction of the Responsible Authority.
4. The loading and unloading of vehicles must always be carried out entirely within the site and must not interfere with other traffic.
5. The areas shown on the approved plan for car parking, access and landscaping must not be used for any other purposes.
6. The car park, access and landscaping must be maintained in accordance with approved standards and at all time to the satisfaction of the Responsible Authority.
7. All landscaping as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority within three months of completion of works for the buildings and works hereby approved.
8. Noise levels from the site must not exceed the permissible levels specified in the relevant State Environment Protection Policy or Environment Protection Authority Guideline.
9. No waste collection is to occur between 8 pm and 7 am the following day to the satisfaction of the Responsible Authority.
10. Unless with the further written consent of the Responsible Authority, no deliveries may occur between 10 pm and 7 am the following day.
11. If any premises are to be used as food premises, then plans must be submitted to and approved by Council's Environmental Health Section prior to any works commencing.
12. Occupation of the premises must not commence until:
    • (a) The premises have been connected to a reticulated sewerage system of a sewerage authority.
    • (b) Drainage to the premises has been provided in accordance with applicable standards and to the satisfaction of the Responsible Authority.
    • (c) The area set aside on the approved plan for access and car spaces have been constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority.
13. The site including all buildings and works must be ordered and maintained to the satisfaction of the Responsible Authority so as not to prejudicially affect the amenity of the locality by reason of appearance.

1. In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The development is not started before two (2) years of the date of permit; or
   • (b) The development is not completed before four (4) years of the date of permit.

In accordance with Section 59 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to, if a request is made in writing before the permit expires or within three months thereafter.

[1] Section 1 uses under Clause 34.01 of the Cardinia Planning Scheme.

[2] We have been referred to the Emerald Township Strategy (adopted by Council on 15 March 1999) and draft Emerald District Strategy (September 2008) as well as the Municipal Strategic Statement under Clause 21.01 and more specifically Clause 21.08.

[3] Port Phillip City Council v Maureen Hickey & Ors 14 VPR 108; [2001] VSC 129: A central issue was about the lack of consent from one of two co-owners in a body corporate for development by one of the co-owners over common property.

[6] As set out under ss. 57 and 82 of the P&E Act.

[7] Lot 2 of PS424314, Volume 10461 Folio 266.

[8] Benedetti v Moonee Valley City Council [2005] VSC 434.

[9] The designation applied under the draft Emerald District Strategy, September 2008.

[10] Draft Emerald District Strategy, September 2008 at page 21 and 22.

[11] The plans indicate that from existing natural ground level to the top of the wall will vary from 11m to 13m.

[12] The presence of screening vegetation and undulating topography are well recognised in the Draft Emerald District Strategy at pp 21 & 22.

[16] Specifically Clauses 21.08-2 and 21.08-3.

[17] As set out under Clauses 11 and 17.01.