"L" shaped parcel of land which wraps around a service station situated on the south west corner of the intersection of Whitehorse Road with Jersey Street with the review site having a frontage to the south side of Whitehorse Road of 45.87 metres and a depth from north to south of 74.42 metres and a frontage of 42.68 metres to the west side of Jersey Street with a width (east to west) of 91.77 metres and an area of approximately 5370 square metres.

Silverton Group Pty Ltd v Boroondara CC [2009] VCAT 791

1. By consent the permit application giving rise to this proceeding was amended to substitute the name of the applicant company "Silverton Group Pty Ltd" in place of "Peter Beale" who made the permit application as agent for that company.
2. The further hearing of this case is adjourned to 10 am on 19 June 2009.
3. By close of business on 27 May 2009 the applicant company is to file with the tribunal and serve on each of the parties who appeared or who was represented at the hearing of this case on 6-8 April 2009 a copy of a plan or plans which demonstrate where the company proposes to locate its loading bay, how it proposes that commercial vehicles up to the size of fixed tray 12 metre truck are to gain access to such loading bay for the purpose of unloading without utilising the area referred to in the reasons appearing below as area "B", how such vehicles are then to leave the loading bay and the site, moving in a forward direction and without encroaching on the said area "B" and what other alterations are proposed to the layout of the site (if any) occasioned by such changes in such plans compared with those considered at the previous hearing of this proceeding.
4. Each other party who appeared or who was represented at the previous hearing of this case is to advise the representatives of the applicant company and the Registrar of the Tribunal in writing by close of business on 10 June 2009 of the following matters:
   • (a) whether he, she or it opposes the proposed loading bay access arrangements proposed in the new plans provided for in these directions;
   • (b) if such arrangements are opposed whether that party wishes to be heard on 19 June 2009 in relation to its opposition to such arrangements;
   • (c) in the event that he or she or it wishes to be heard, such written statement must set out the ground or grounds upon which it opposes the proposed loading bay access arrangements;
   • (d) if any party other than the applicant company opposes the proposed loading bay access arrangements but does not seek to be heard but does seek to make a written statement in relation to such new plans for consideration by the tribunal, such written statement must be filed with the tribunal and served on the representatives of the applicant company by close of business on 10 June 2009; and
   • (e) in the event that no response in accordance with these directions is received from any party other than the applicant company by close of business on 10 June 2009 it will be assumed that such party does not oppose such proposed arrangements.

Mr Jeremy Gobbo, QC barrister, appeared with Ms Emily Porter, barrister on the instructions of the firm of Deacons solicitors for the applicant company. They presented written and oral submissions and called four expert witnesses who gave oral evidence and adopted written reports that had been circulated prior to the hearing. Those witnesses were:

• Ian David Shimmin, retail economist;
• Jamie Andrew Govenlock, town planner;
• Andrew Thomas Biacsi, town planner; and
• Jason Lee Walsh, traffic engineer.

They also tendered to other expert reports that had been circulated but the authors of which were not required to give oral evidence. The authors of those reports were Mr Rob Galbraith, arboriculturalist and Mr Robert McGauran, urban design consultant. The report of Mr McGauran was tendered and accepted on the basis that paragraphs (l) and (m) of part 3 appearing on page 8 are not, so far as the responsible authority is concerned, to be accepted as unchallenged.

Mr John Rantino and Ms Kate Morris, solicitors of the firm of Maddocks solicitors appeared for the responsible authority. They presented written and oral submissions.

Mr Stephen Spring, objector, appeared on behalf of himself and Deborah Spring on the first day and part of the second morning of the hearing. He presented written and oral submissions. He also tendered a written statement on behalf of Leaw Cheng and Sok Li Cheng.

Ms Nola Fletcher (misnamed on the appearance sheet as Noel Fletcher) appeared in person and made oral submissions supported by some typed notes.

Ms Maureen Sorahan and Ian Sorahan appeared in person for themselves and for Ben Sorahan. They made written and oral submissions.

Mr Sam Di Pietro, appeared in person and made written and oral submissions. He has an interest in the Balwyn Cinema located opposite the review site in this case.

The objectors named above, apart from Mr Spring, appeared only on the first day of the hearing.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Use and development of land for shop (a supermarket and a "kiosk"), office exceeding 2,000 m2, variation of existing easement, access to a Road Zone Category 1, reduction of parking and bicycle facilities.

188 Whitehorse Road and 23 Jersey Street are in a Business 2 Zone and subject to a Design and Development Overlay (Schedule 8) and an Environmental Audit Overlay under the Boroondara Planning Scheme.

19-21 Jersey Street are in a Residential 1 Zone under the said planning scheme.

The determination of legal questions in this case are the responsibility of the presiding member who is a qualified lawyer. However, as we are in agreement in relation to the reasons given below, we have thought it convenient to use plural pronouns throughout rather than having to chop and change between "I" and "we".

The permit application giving rise to this case was made in the name of Peter Beale of the firm of town planners acting on behalf of Silverton Group Pty Ltd. That company is the principal where Mr Beale acted as its agent. Also, the application for review is in the name of Silverton Group Pty Ltd. It is only the permit applicant that has the legal right to apply for a review under s 79 of the Planning and Environment Act 1987. This defect was remedied by amending the permit application by consent to substitute the name of the company as applicant for Mr Beale.

This is a review of the failure of the responsible authority to grant a permit within the prescribed time. Accordingly, no notice of refusal was issued by the responsible authority. Nevertheless, it has indicated that if it had made a determination it would have refused to grant a permit on the following grounds:

1. The proposed use and development of the land for a shop (supermarket) is prohibited by Clause 32.01-1 and Clause 63.09 of the Boroondara Planning Scheme.
2. The proposal is inconsistent with the objectives of Council's Municipal Strategic Statement and Retail Centre Policy, the Business 2 Zone and the draft Balwyn Structure Plan as the use would be located outside the identified core retail area of the Balwyn Neighbourhood Centre and would fragment retail activities within the centre.
3. The development fails to provide sufficient on-site parking to satisfy the anticipated peak demands associated with the proposed uses and would have an unreasonable impact on the availability of on street parking.
4. The provision of supermarket loading and delivery access via Jersey Street will result in unreasonable amenity impacts on adjacent and nearby residences.
5. The proposed development would create unreasonable amenity impacts on the dwellings at 19 and 21 Jersey Street.
6. The proposal fails to satisfy the purpose and requirements of Clause 52.34 Bicycle Facilities.

1. The proposal is to establish a supermarket on the site with two levels of office space above and a minor "kiosk" at the front and at ground level.
2. The responsible authority did not determine the permit application within the prescribed time. This resulted in the applicant company, Silverton Group Pty Ltd (the company) making an application to this tribunal under s 79 of the Planning and Environment Act 1987 (PE Act) for a review of that failure. However, the responsible authority subsequently determined that, if it had made a decision within time, it would have refused to grant a permit. It specified six grounds upon which that refusal would have been made. They are set out above but Mr Rantino, the solicitor who appeared with Ms Kate Morris, solicitor, on behalf of the responsible authority reduced the list in the following way. He said that grounds fell into four categories:
   1. That the proposed use and development of the land for a supermarket is prohibited under the zone provisions in clause 32.01-1 of the planning scheme and clause 63.09 of the planning scheme which relates to existing use rights.
   2. What he called the strategic basis argument that the proposal should not be allowed on this site because it would fragment the Balwyn neighbourhood activity centre by allowing core retail activities, namely the supermarket, to be established in a Business 2 Zone rather than a Business 1 Zone and at the western end of, rather than in the heart of, the Balwyn neighbourhood centre. The basis for this strategic policy argument is said to rest on Retail Centre Policy in the State Planning Policy Framework, the Municipal Strategic Statement, the Local Planning Policy Framework particularly, clause 22.10, and a draft Balwyn Structure Plan.
   3. Grounds 3, 4 and 5 are concerned with amenity impacts namely possible on street parking because of insufficient onsite parking, amenity impacts upon nearby dwellings of the proposed loading and access to loading and impacts on the amenity of the dwellings at 19 and 21 Jersey Street.
   4. That the proposal fails to satisfy the purpose and requirements of clause 52.34 of the planning scheme in relation to bicycle facilities although it was conceded throughout that this was not really a ground of refusal and if it had been the only problem, it would be dealt with by means of the imposition of a condition.
3. The objectors who appeared all live in residential properties in Grant Avenue, Balwyn. Their properties are close to or back on to the southern boundary of the review site. Their opposition to the proposal relates to various perceived or possible amenity problems some (but not necessarily all) of which might be readily rectified by the imposition of conditions.
4. Nobody, not the responsible authority nor the objectors, opposed the demolition of the current building on the review site or the construction of the new building proposed for it; although modifications are suggested by some objectors. Indeed, some of the objectors are not opposed to the supermarket provided that they can be reassured in relation to amenity concerns.
5. No one opposes the height or modern style of the proposed new building.

1. The main portion of the review site in this case is the property known as 188 Whitehorse Road, Balwyn. It is located at the western end of the Balwyn Neighbourhood Activity Centre.
2. The activity centre is a strip shopping centre that extends along Whitehorse Road to the east and to the west from its intersection of Balwyn Road which is near the middle of the centre.
3. Whitehorse Road is an important main road with a double tramline running east from Kew to Box Hill. It is a main road category 1, so far as the Boroondara Planning Scheme is concerned. The Roads Corporation, commonly known as "VicRoads", is the relevant authority in relation to the concerns of that thoroughfare as a main road. Any alterations to access to the road requires planning approval. Just to put that issue out of contention we note that VicRoads approves of this current proposal subject to conditions which are unchallenged.
4. The strip shopping centre extends east from its western end, where Bevan Street to the south and Austin Street to the north intersect with Whitehorse Road. It extends up the hill to the east, past Balwyn Park (on the southern and uphill side of Whitehorse Road) to the intersection of Balwyn Road. That is a crossroad intersection. From there it extends further east to Brenbeal Street and perhaps the vicinity of Kireep Street to the east.
5. The main part of the strip shopping centre is a Business 1 zone extending along both sides of Whitehorse Road from Balwyn Road to past Weir Street on the south side and as far as Brenbeal Street on the northern side. It also extends west from Balwyn Road on the south side as far as Cherry Road beyond which the Balwyn Park is encountered, and on the north side as far as Power Street, which forms a "T" intersection with Whitehorse Road opposite the approximate middle of the frontage of the park. From that point, running west on the north side of Whitehorse Road, and down the hill in that direction, there is a Business 2 zone that extends as far as the Balwyn Cinema on the north east corner of the intersection of Whitehorse Road with Austin Street. The Balwyn Cinema constitutes a local landmark and a point of interest in the streetscape. Originally a single large picture theatre, it now has five small cinemas within it.
6. The review site is located opposite to the cinema on the southern and uphill side of Whitehorse Road, but still at a lower level than Whitehorse Road in the vicinity of the Balwyn Road intersection.
7. The review site is located as the middle one of three properties fronting the south side of Whitehorse Road between Bevan Street to the west and Jersey Street to the east. These three properties are also in the Business 2 Zone, which extends east along the south side of Whitehorse Road from Bevan Street to Jersey Street. Then, from Jersey Street to the park there are five residential properties in a Residential 1 zone.
8. Although there are some pieces of Public Use Zone dotted around the strip shopping centre it, and its Business 1 and 2 zones, are surrounded in all directions by Residential 1 zone land is generally for residential purposes.
9. The review site, with its significant frontage to Whitehorse Road, is also something of a local landmark. It has been used for quite a number of years for the manufacture of flags and banners. It generally has a series of flags flying from flagpoles along the front of its upper parapet. Although still used for that purpose, flag manufacturing activities on the site are reducing towards closure.
10. It is common ground that 188 Whitehorse Road enjoys existing use rights as an industrial property manufacturing flags and banners. There was some discussion in the course of the hearing as to whether there are further uses of the land as warehouse, shop and display area for flags and banners. The question raised has been whether these are ancillary aspects, and therefore part of, a use of the land for flag manufacturing; or whether these are separate purposes for which the land is used.
11. The land constituting the review site is a parcel including the land within three distinct land titles.
12. Jersey Street runs south from its "T" intersection with Whitehorse Road. It passes a service station on the corner and then the Jersey Road frontage of the review site.
13. This service station on the southwest corner of the intersection. The review site wraps around it. The main 188 Whitehorse Road property has an eastern side boundary that is common with the western boundary of the service station. There are a series of residential properties fronting either side of Jersey Street. The parcel constituting the review site includes three pieces of land with the addresses of 23, 21, and 19 Jersey Street. Numbers 21 and 19 are in the Residential 1 zone.
14. Of these, number 23 no doubt originally had a separate title[1]. Its northern side boundary was common with the southern boundary of the service station. It is now a projection of land from the eastern side of the flag property connecting it via 23 Jersey Street to its frontage on the western side of Jersey Street. Not only has number 23 been consolidated with 188, but it is also within the Business 2 zone.
15. Both 19 and 21 Jersey Street are in common ownership with the consolidated land. There is a house on each of them. This is in contrast to number 23 where there is now no house but a driveway and car park.
16. However, rear portions of numbers 19 and 21 have, for some years, been fenced off so that the rear portions can be used to provide an extension to the driveway on 23 which curls around to the south and gives access to the side of the flag property on 188.
17. The situation in relation to these portions of 19 and 21 is somewhat complicated and calls for careful description. This becomes necessary in relation to understanding the existing use right issues that we will need to deal with later in these reasons.
18. The area at the rear of 21 Jersey Street which has been detached from residential use, and devoted for years to driveway access for the flag factory. This rear area was referred to, in the course of the hearing, as area C.
19. So far as 19 Jersey Street is concerned, the rear 14.2 metres of its backyard has similarly been detached and used for flag factory access for many years. This rear 14.2 metres has been referred to as area A. Areas A and C together have a combined area of 402.57 square metres.
20. To the east of area A, a further area has been taken from the rear yard of 19 Jersey Street and also used for access and parking in connection with the flag property. This area, extending east from area A by 7 metres, is referred to as area B. It has an area of 79.2 square metres. It is admitted on behalf of the responsible authority, and not contested by anyone, that areas A and C have existing use rights as ancillary aspects of the flag factory activity carried out upon the main flag property at 188 Whitehorse Road.
21. At the beginning of the hearing, it was assumed that there was no distinction to be drawn between areas A and B, and that both enjoyed the same existing use rights in relation to the flag manufacturing on 188 Whitehorse Road.
22. In the course of the hearing on the first morning Mr Spring claimed that the use of area B for such a purpose is much more recent than in relation to area A. Investigations, including the examination of a succession of aerial photographs, revealed that area B was part of the backyard of 19 Jersey Street until a date in or between 2002 and 2004. Somewhere between those years, the back fence of the residential part of 21 Jersey Street was removed and moved back to the east by 7 metres. It is only after that relocation that area B has been used for parking and access in relation to the flag factory.
23. The current planning scheme provisions in relation to existing use rights, are found in clause 63 of the planning scheme. Although existing use rights originally could only be established by proving a lawful commencement of the use prior to the imposition of such planning controls as might now prohibit the use, and its lawful continuation, subject to certain provisos, since that time; the provisions now include the so-called 15 year rule. These provisions enable the creation of existing use rights that were commenced unlawfully and carried on unlawfully, provided that the user has managed to conceal the unlawful activities, or otherwise managed to carry them on for a period of 15 years. There are some qualifications in relation to the 15 year rule which it is not currently necessary to refer to.
24. It is only pursuant to the 15 year rule that area B could have acquired existing use rights. At any rate, no other basis has been suggested. Its detachment from the back garden, and incorporation into the access and parking for the flag factory, has been too recent for the establishment of existing use rights under the 15 year rule.
25. Once these matters were revealed, it became common ground that there are no existing use rights in relation to area B, although such rights do exist in relation to areas A and C.
26. The evidence indicates that the accessway running from Jersey Street along number 23 and then behind the houses at 21 and 19 over areas C and A, is unsealed.
27. The existing flag factory building on the site is unprepossessing. It has an asbestos roof and industrial style "saw tooth" roof structure. It is described, at least by some of the objectors, as an eyesore.
28. On the southeastern corner of the intersection of Whitehorse Road with Bevan Street, there is a property that shares its eastern side boundary with the western side boundary of 188 Whitehorse Road. There used to be another service station on this site. It has been demolished and the site is currently vacant ready for redevelopment. Planning permission has been granted for a four storey office building with some ground level retailing on this site.
29. The Business 2 zone land on the northern side of Whitehorse Road extends up the hill from the Balwyn Cinema and contains a number of retail premises of various sorts. On average, these properties are larger than those concentrated around the Balwyn Road intersection and extending from it further to the east. In that vicinity, where the zoning is Business 1, most of the retail properties are smaller speciality shops.
30. The Balwyn Shopping Centre is a well established and reasonably 'well to do" retail area with a number of quite good quality shops including various restaurants, an excellent second hand bookshop, a good bookshop, some better quality clothing, footwear and giftwear premises, substantial pharmacies, a smart French patisserie, a better class delicatessen and various other retail premises.
31. Behind the shops on both sides, land has been acquired by the council and devoted to parking. Behind the shops on the south side there are two schools being Fintona Girls School and the Balwyn Primary School, which is in Rochester Street. At the eastern end on the southern side, there is a McDonalds and the Balwyn Library. Opposite these, there is a shell service station and a substantial liquor outlet that was once an IGA Supermarket.
32. Centrally located in Whitehorse Road, opposite its intersection with Rochester Street, there is a substantial Safeway Supermarket. It has been trading for many years and, according to the evidence, trades very well. It is nevertheless a faded, "down at heel" and very poorly presented supermarket. In particular, its presentation to the streetscape in Whitehorse road is very poor indeed and distinctly detracts from the streetscape and amenity of the area. It is hardly surprising that the responsible authority would like to see at least a significant "facelift" performed on this building. This eyesore has continued for many years in its present form. It appears that, at least to date, there has been no motivation sufficient to induce Safeways to do anything about this distinctly poor situation in relation to a supermarket that is distinctly profitable.

1. In the course of the hearing there was some discussion about the possible availability of a site for a second supermarket in the Balwyn Shopping Centre. There was mention, for example, of the Shell Service Station site and the Balwyn Cinema site but neither is practical. Both are too small. There is no indication that the owners of the Shell service station want to use it for anything other than a service station and it would be a distinct loss if the cinema was to be demolished.
2. To assemble a site sufficient to provide a "footplate" for a modern "full line" supermarket, together with sufficient parking, in this shopping centre is a very difficult undertaking. To assemble such a site in the Business 1 portion of the centre would be very expensive, very difficult and take a great deal of time because it would involve the acquisition of a multiplicity of small properties. Furthermore, it would be highly undesirable in that, to a greater or lesser extent, these shops contribute to the centre both commercially and in terms of streetscape, appearance and amenity.
3. There is but one practical proposition for a second supermarket. That is the review site. It alone has sufficient area, and even then cannot provide car parking at ground floor level. The necessary parking would have to be provided in the two basements which are proposed.
4. In practical terms, the only opportunity for a second supermarket is this site. It is really this site or none. At this stage, there is only one so called commercial "anchor" for this shopping centre and that is the existing supermarket.

1. The proposal is to demolish the existing flag factory building on 188 Whitehorse Road and replace it with a new three level building above two levels of basement car parking containing a total of 213 car spaces. The main use of the ground floor would be for the proposed supermarket with its ancillary features including loading bays, storage and the like, but excluding car parking (save for some possible limited staff parking on number 23). The two upper floors would be for office and the two basements for car parking. It is contemplated that the lower basement would be for car parking associated with the offices and the upper basement for car parking associated with the supermarket. Access between the various levels, including the basement levels, would include lifts. The small kiosk facility would be at the ground floor front. Some plant would be centrally located on the roof of the upper office floor where it would be inconspicuous, or invisible, both visually and acoustically. A "bay" would be cut into the middle of the office floors from the western side providing light and outlook for those levels.
2. There is a significant fall of approximately 5.5 metres across the site from the rear to Whitehorse Road and this has enabled the applicant to use the slope to reduce the bulk and height of proposed development to the residential interface with the properties at the rear that front onto Grant Avenue. Due to the site slope the building is, in effect single storey at the rear where facing the residential properties.
3. The elevations of the building have been varied and create interest with the introduction of timber and aluminium privacy screens and feature vertical timber feature panels. The rear elevations is highly articulated and stepped providing a suitable transition to the southern boundary and the residences to the rear. The eastern elevation, which is viewed across the forecourt of the service station from Whitehorse Road, has a full height panel that will be dedicated for an integrated piece of artwork and signage.
4. The western elevation has large glazed windows with timber panelling and batten sunshades. This is to provide privacy to the residential properties in Bevan Street.
5. The rear elevation is of most relevance to the resident objectors. It contains recessed first and second floor components which provide the office footprint so that, with the excavation of the site, the building reads as a single storey to the rear. The elements of the first and second floor will be visually stepped back with the setback to the rear boundary being of some 12 metres. The setbacks to the west are generally in excess of 7 metres at first and second floor and have a large cut out courtyard section to minimise the bulk as it presents to the residences in Bevan Street.
6. The front elevation of the proposed building is at the front boundary of the property to Whitehorse Road and creates an interactive street edge. The eastern elevation as previously mentioned is also set to the boundary of 188 Whitehorse Road with the adjacent service station.
7. Car access would be via a three lane driveway ramp from the western end of the frontage to Whitehorse Road. This would give two lanes coming up out of the basements and one going down into the basements. There would be left and right turns for emerging traffic, but only a left turn in from Whitehorse Road for traffic going into the basements. The traffic engineer giving expert evidence on behalf of the company gave it as his opinion that a right turn in from Whitehorse Road would be quite satisfactory. However, the banning of the right turn in has been sought by VicRoads and the company is prepared to accept the view of VicRoads on that point.
8. During the course of the hearing amended car parking figures were provided for the development which would mean that there is 107 car spaces dedicated to the office development and a total number of 213 spaces available on the total site over two levels of basement car parking.
9. The standard requirement under the Planning Scheme would be 324 car spaces to be provided on the site. This is a rate of 8 car spaces per 100 square metres for shop which will generate 199 cars and 3.5 vehicles per 100 square metres for office that will generate a total of 125 spaces. Therefore, the short fall in car parking for the site is 111 spaces.
10. The responsible authority does not have any major concerns in relation to the car-parking shortfall and when the provision assessed against local policy the shortfall is considerably reduced. The local policy indicates a rate of 6 cars per 100 square metres for shop, which will generate 148 spaces and 3.5 spaces per 100 square metres for office that will generate 125 car spaces. On that basis the shortfall is 59 car spaces.
11. The plans depict the loading bay as being towards the rear of the proposed new building at ground floor level, and on the eastern side. Although at ground floor level, the floor of the loading bay would be lower than the main floor level of the ground floor to facilitate unloading.
12. The plans depict the driveway for delivery vehicles to come in via the existing car park and driveway at 23 Jersey Street. Such vehicles would not enter the proposed new building directly from Whitehorse Road, but by coming south in Jersey Street to turn right behind the southern boundary of the corner service station. Such vehicles would then turn left to utilise the areas A, B and C being rear portions of the residential properties known as 21 and 19 Jersey Street. The vehicles involved include vans and trucks up to a 12 metre fixed tray truck. Such a vehicle can get to the proposed loading bay by using only the rear portions being areas A and C. However, to turn around to back into the bay and emerge from the property in a forward direction, the plans depict usage of area B, the portion of the original backyard of 21 Jersey Street measuring 7 metres east to west which was added to area A, in or about 2002. There is a problem about this area which we will discuss below. The plans depict enclosure and roofing of this southern portion of the approach to the loading bay.

What Planning Permissions are required to achieve the Proposal?

1. 188 Whitehorse Road is located in a Business 2 zone. Use of land in that zone is controlled by the table of uses found in clause 34.02-1 of the planning scheme. That table is divided into three sections. Section 1 lists the land uses that can be carried out on the land without need to obtain a planning permit. In some cases, these uses are subject to a specified condition found in the table opposite to the name of the relevant land use. In those circumstances that use can be carried on without a permit, provided that the condition is complied with. If the condition is not complied with, then the use ceases to be a section 1 use and falls into section 2.
2. Section 2 of the table lists the land uses that can be carried on subject to a planning permit being obtained which allows that use. Again with these section 2 uses, some of them have specified conditions. If those conditions are not complied with the use becomes a prohibited section 3 use.
3. Section 3 lists those land uses that are not permitted under the table, but rather which are prohibited and cannot be commenced. The prohibition is on commencement. It is not absolute if there are "existing use rights" in relation to a section 3 use. We will return to this topic.
4. So far as the Business 2 zone provisions are concerned, and the table of uses therein, the land use "Shop" (other than an Adult Sex Bookshop) is a section 2 use. The supermarket would be a shop. The minor kiosk is also being treated as being a shop. There is no real controversy about the kiosk.
5. There is a condition attached to the land use shop where it appears in section 2 of the table. That condition provides that the combined leasable floor area of all shops must not exceed any amount specified in the schedule to the zone. However, the schedule in this case does not specify a maximum combined leasable floor area for shops. Thus there is no contravention of the condition and a shop of any size can be permitted if the grant of a use permit for shop is deemed to be appropriate.
6. The other proposed use of the 188 Whitehorse Road land is as office. Office appears in schedule 1 of the table of uses. As such, it is "as of right" provided that the specified condition is met. There is a specified condition in relation to office. It provides that the combined leaseable floor area of all offices must not exceed any amount specified in the schedule to the zone. The schedule does specify a maximum combined leasable floor area for office in this zone. The specified maximum is 2,000 m2. The proposed office accommodation will exceed 2,000 m2. On that basis the condition is not met and the use as office ceases to be an as of right section 1 use. Because the condition is not met, it becomes a section 2 use for which planning permission is required. However, it is not a prohibited use. Such permission can be granted if deemed appropriate.
7. Quite apart from the proposed use of the land in the Business 1 zone, it is proposed to construct and carry out a building and works. Clause 34.02-4 of the Business 2 zone provisions provides that a permit is required to construct a building or to construct and carry out works. That requirement is subject to some exceptions that do not apply here. Accordingly, planning permission is required for the proposed buildings and works on 188 Whitehorse Road.
8. The properties known as 21 and 19 Jersey Street are located in a Residential 1 zone. The zone provisions for that zone are found at cl 32.01. They contain a table of uses constructed on a similar pattern to that which applies to the Business 2 zone, but the requirements differ. The prohibited uses for the zone are found in section 3 of the table of uses in cl 32.01-1. They include office (other than medical centre), retail premises which, for present purposes, includes shop of the sort here contemplated and industry (other than car wash). We mention industry here on the basis that the flag manufacturing activity would come within industry and thus would be prohibited subject to any existing use rights.
9. Of course it is not proposed that there should be any actual office space or supermarket space or leasable floor area in connection with either on the Residential 1 zone land. The expression "Leasable floor area" is defined in cl 72 of the planning scheme to mean that part of the net floor area able to be leased, not including public or common tenancy areas such as malls, verandahs or public conveniences. All of the leaseable floor area for the offices, the supermarket and kiosk would be on 188 Whitehorse Road and thus in the Business 2 zone. 23 Jersey Street is also in the Business 2 zone.
10. However, the plans provide for the use of those small areas at the rear of 21 and 19 Jersey Street for a purpose that is ancillary to one of the proposed uses on 188 namely the supermarket. It is proposed that these areas should be utilised for the ancillary activity or purpose of providing access for commercial vehicles to the proposed loading bay. These areas have, in the past, been used for similar purposes in relation to the flag factory.
11. It is clear enough that such ancillary aspects are at present parts of the use of land for the purpose of flag factory and part of the proposed use of land for shop if this proposal proceeds. These activities on those small portions of Residential 1 zone land are prohibited under the table of uses for that zone. Accordingly, such activities are only lawful if they come within the existing use provisions in cl 63 of the planning scheme. We propose to deal with the subject of existing use rights separately. In doing so we will mention the question of what permissions might be required under cl 63.
12. Clause 32.01-6 amongst the Residential 1 zone provisions deals with buildings and works associated with section 2 uses. It provides that permission is required to construct a building or to construct or carry out works for a land use in section 2 of the table. However, the use of these areas at the rear of numbers 21 and 19 would not be for section 2 uses. It is really cl 63 in relation to existing use rights that must be looked to.
13. Apart from the above, there are three other planning permissions that are required. Permission is required to create or alter an access to a main road category 1 which includes Whitehorse Road.
14. Clause 52.06 deals with car parking. It lays down some standard requirements in relation to the provision of car parking. It also contemplates reductions from the standard requirements which may be granted by means of planning permission having regard to various relevant considerations specified in the clause.
15. Permission is also required to vary bicycle parking provision and facilities laid down in the planning scheme.

1. The question of existing use rights now only applies to area A at the rear of number 19 and area C at the rear of number 21 Jersey Street. It is now apparent that the use of area B toward the rear of number 19 is a recent innovation for which existing use rights do not exist.
2. There is no issue in this case in relation to the existence of existing use rights in relation to areas A and C. Such rights are conceded to exist, or are not contested, on the basis of the existing use of those portions of land for ancillary purposes in relation to the existing flag manufacturing industry.
3. It has now been discovered, and is common ground, that no such rights exist in relation to area B. The current plans contemplate utilisation of area B for backing and turning of at least the larger commercial delivery vehicles having occasion to unload into the loading bay.
4. On this basis, the current plan utilising area B for that purpose cannot be approved. In the absence of a rezoning of area B, the company has had to consider its position as to whether this proposal can proceed without making any use of area B.
5. It was taken by surprise in relation to this situation halfway through the first morning of the hearing. That is because it had been accepted, up to that point, that such rights as existed in relation to areas A and C also applied to area B.
6. The company has responded to this situation by producing several sketches demonstrating how it could make the premises, the loading bay and its access operate without utilising area B. The existence of a viable option or options of this sort is important. There would have been little point in proceeding with the hearing if it could not be shown that there was some reasonable prospect of satisfactorily resolving the problem.
7. Option 1 would involve minimal change to the current plans. The present loading bay and driveway would be retained but the utilisation of area B for backing and turning purposes would be deleted in favour of a vehicle turntable capable of turning a 12 metre tray truck so that it can back into the loading bay and drive out along the driveway to Jersey Street in a forward fashion.
8. Option 2 is less convenient and would involve greater inconvenience and less convenient use of the space within the proposed building to go onto 188 Whitehorse Road. The loading bay would be relocated further to the north so as to be behind number 21 rather than number 19 Jersey Street. This second option would not involve a turntable. Rather it would mean that trucks could back into the bay and drive out in a forward way by utilising areas A and C, but not B, for that purpose.
9. There are a couple of variations of the third suggested alternative solution (option 3). However, both are based on the principle of the loading bay being relocated yet further north so as to be opposite the rear of 23 Jersey Street. Under this arrangement, no Residential 1 zone land would be used for the purpose of access to the loading bays. The access would be along the Business 2 zone land of number 23 with a turntable at its eastern end to turn vehicles to 180 degrees so that they could back into the loading bay and subsequently drive out in a forward direction.
10. Option 3 would eliminate use of any Residential 1 zone and thus eliminate the need to rely upon any existing use rights applicable to that land. From that point of view the third option is attractive, but it is the least convenient and least attractive to the company from an operational point of view. It would insert the loading bay and its facilities deep into the middle of the supermarket area from its eastern side. This would create layout problems and may result in some of the floor area open to the public being, in effect, behind that intrusion. At best it would impose on the company, but also on members of the public utilising the supermarket, an inconvenient and unattractive arrangement. We can see the point raised by the company suggesting that it would be a pity to have to adopt such a course as a result of a technical legal problem preventing a continuation of access to the flag factory that has been carried on, apparently without complaint, for a number of years.
11. The result of all this is that the company wishes to proceed with its first option if it can, its second if it cannot and one of the variations of the third option if neither of the first two are available.
12. Option 1 is clearly the best if it is legally available. The company wishes us to consider the question of whether that option is legally open on the basis of the existence of existing use rights and, if the exercise of such rights in the way now proposed would require planning permission, whether we would be willing to grant such permission in the circumstances.
13. In these circumstances it was suggested, on behalf of the company, that we should hear this case and consider all the issues, including these existing use right questions, as far as possible; and then give an interim determination. This would clarify the legal position and the prospects for the planning permissions being sought or that might be necessary in the circumstances. This would be an advantage to all the parties. If we determine to refuse the application on grounds unrelated to questions of existing use rights, the company would know where it stood and that it could not proceed with its project, subject to any appeal it might have to the Supreme Court on questions of law.
14. If, on the other hand, we find that we are prepared to grant the planning permissions required in relation to questions other than existing use rights, the company would want to have an opportunity to consider which of its alternative solutions to the loading bay access problem it wishes to pursue. This would also involve the preparation of proper plans, rather than the sketches which were all it could provide at short notice in the course of the hearing.
15. The company recognises that these plans would need to be circulated and that other parties would need to have an opportunity to be heard in relation to the option which the company wished to pursue.
16. This suggestion arose on the first day of the hearing after it had commenced, and which hearing was anticipated to run for three or four days. The parties were all ready to proceed on other aspects, including in relation to the examination of expert witnesses.
17. The other parties acquiesced in the idea of proceeding in the way suggested by the company. We agreed that it is a sensible way to proceed under the circumstances of the case. We should point out however, and emphasis the point, that: in proceeding in this way we will be reserving only the issue of the final layout of the loading bay access (assuming that we do not refuse the application for other reasons). It was proposed that we should hear all the submissions and all the evidence on other issues and make a determination in relation to them in our interim determination. Having done that, if there should be a subsequent hearing in relation to the loading bay access question, the hearing will be confined to that question and things directly related to it. It will not be an opportunity to reopen or reventilate other issues in relation to the case. Furthermore, such further hearing will not be an opportunity for other parties to submit that we should disqualify ourselves from proceeding with the case on the basis of bias or perceived bias based on our having already, at that stage, determined certain issues in the case. They will not have been predetermined prior to our hearing the evidence and submissions relevant to them. On the contrary, we will have heard all that the parties wish to urge in relation to them before making the interim decision so no question of prejudgement can arise.
18. We propose to adopt the course suggested on behalf of the company, and agreed to by or on behalf of the other parties. We give the interim determination in this document together with orders and directions to deal with the future conduct of the case.
19. On the final day of the hearing Mr Gobbo QC, on behalf of the company, submitted that the existing use rights admitted in relation to areas A and C, exist, not only in relation to the flag factory but also for the purpose of shop. He put this on the basis that, although flags are manufactured on the site, it also contains a storage area for completed product and a display and sales are for the sale of flags and banners produced on the property. There is no dispute that industrial activity of manufacturing flags exists on the land and enjoys existing use rights in relation to 188 Whitehorse Road and, more particularly, 19 and 21 Jersey Street, or at least areas A and C thereof. However, Mr Gobbo suggested that the flag factory activity really constitutes the use of the land for more than one purpose in terms of town planning characterisation. He suggested that the land is used as factory, but also as warehouse, and further as shop. The shop aspect is the display and sale of flags and the like from the retail sales portion of the building.
20. We recognise that it is entirely possible for one piece or pieces of land constituting a so called "planning unit" to be used for one or more than one purpose in town planning terms. It must be a question of fact in the particular case whether the various activities amount to one use, or more than one.
21. Of course, if the storage area is really ancillary to the manufacturing, and it the retailing of flags is really ancillary to flag manufacture, then there is but one use namely flag manufacturing. If that is so, existing use rights may exist in relation to areas A and C for flag manufacturing, but not for shop.
22. We have been provided with scant evidence, indeed merely an assertion in a submission, as to whether the retailing of flags really amounts to a separate use, rather than an ancillary activity in relation to flag manufacturing. We know nothing of the extent of this activity in terms of area, personnel, turnover or anything else. It is not that those considerations would necessarily be decisive but we are really left with nothing to go on in circumstances where, on the face of it, it would appear that the storage and retailing would be, in all probability, merely ancillary aspects of the manufacturing use.
23. We are not prepared to find, on the basis of the evidence before us, that existing use rights exist in relation to the areas A and C as ancillary aspects of a shop for which existing use rights exist.
24. It might be noted that we have been referring to the previous, and indeed the current use of the land as flag manufacturing rather than simply as "industry". This accords with cl 62.03 of the planning scheme, the principles enunciated in relation to characterisation prior to the introduction of the equivalent of that provision into Victorian planning schemes and it accords with the common understanding put to us on behalf of the company and the responsible authority. The objectors were not present after the first day of hearing, except for a brief appearance by Mr Spring on the second morning, and they did not participate in the debates that occurred in relation to existing use rights and cl 63 of the planning schemes.
25. In the absence of the company being able to rely on existing use rights as a shop, unless it adopts its option 3 and does not utilise residential 1 zone land, it must rely on cl 63.08 of the planning scheme in relation to alternative uses. That clause provides:

If land is used for a use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use which does not comply with this scheme. The responsible authority must be satisfied that the use of the land for the alternative use is less detrimental to the amenity of the locality.

1. Firstly, to change to an alternative use, it is necessary to obtain planning permission under cl 63.08. Secondly, such permission cannot be granted unless the alternative use is less detrimental to the amenity of the locality than the original one.
2. As Mr Rantino points out on behalf of the responsible authority, less detrimental does not mean equally detrimental. The option of a permit under this provision is not available if the new alternative use is detrimental to the amenity of the area to the same extent as the original use.
3. The option is open if the new use is less detrimental, even to a minor extent, but there must be such a difference. Mr Rantino is clearly right in this submission. The policy behind the alternative use provision in cl 63.08 is plain enough. Normally it will apply to a single clear area of land or parcel of land, generally in one zone. In this case, we have the major activities proposed for land in a Business 1 zone with a minor (though essential) activity intended for a small area (areas A and C) of residential land. In considering whether the alternative use of areas A and C is less detrimental than the current prohibited use, are we to consider the current flag production project as a whole to be compared with the proposed supermarket in determining whether the later is less detrimental than the former; or are we to consider only the bits of activity confined to areas A and C?
4. As an important principle in cl 63.08 in allowing something that is less detrimental in place of something that is more detrimental, we will think that it is proper to consider each use as a whole to decide whether the supermarket as a whole will be less detrimental than the flag factory as a whole.
5. As to that question, we are not in any doubt. It is true that there are many industries likely to be more detrimental to the amenity of the locality than the flag manufacturing activity, nevertheless we are clearly of the view the proposed supermarket will be less detrimental. Without the following being exhaustive, the great improvement of replacing a rundown eyesore industrial building with a smart more attractive and more interestingly evolved commercial building itself is, of itself, sufficient to satisfy that requirement.
6. To consider areas A and C, to the exclusion of both projects as a whole, strikes us as being unduly and inappropriately technical, rather absurd, and inconsistent with the important underlying principle of cl 63.08. Nevertheless, even confining our attention to areas A and C, we are satisfied that the new proposal is less detrimental to the amenity of the locality than the existing undertaking. The intended enclosure and roofing of the southern part of the access way will give a better result for the neighbours from an acoustic point of view and from a visual point of view. Acoustically the benefit will be either less noise, or an assurance that avoidance of increased noise.
7. Apart from that, and without needing to rely on those considerations, sealing of the driveway itself satisfies the less detriment requirement. An unsealed gravel surface, quite apart from being more prone to deterioration, does not provide the same protection as a sealed surface. A sealed surface will not generate dust in dry weather nor mud and moisture in wet weather, either along the length of the driveway, or as tracked out onto public roads including Jersey Street.
8. We are accordingly satisfied as to cl 63.08 and that a permit can be granted which includes planning permission for use of areas A and C for the ancillary activity of access to the loading bay of the proposed supermarket compared with the access those areas now provide to the flag factory.
9. We make this finding in spite of an argument suggesting that there might be increased commercial traffic along this access way for the supermarket as compared with the flag factory. The anticipated volumes are low in both cases and if lower for the flag factory, we do not think that the difference makes a material difference so far as the amenity of the locality is concerned. In any event, it is more than compensated for by the question of the sealing of the driveway.
10. Clause 63.05 imposes some provisos in relation to the continuation of an existing use that is otherwise prohibited by being within section 3 of the table of uses for the relevant zone.
11. The first of these provisos is that:

No building or works are constructed or carried out without a permit. A permit must not be granted unless the buildings or works comply with any other building or works requirement in this scheme.

1. As to this, permission is required for the building involving the roofing of the southern end of the driveway at the entrance into the loading bay and for the works involved in sealing the surface of the driveway. We are not aware that such buildings or works contravene any other requirements of the scheme. Although a permit is required, there is no reason why it cannot and should not be granted.
2. The second proviso relates to the continued observance of any condition or restriction. It requires that the same must continue to be met. We are not aware of any problem in that respect.
3. The third proviso is that:

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing right.

1. These provisos are normally of continuing importance in relation to an existing use right without change to an alternative section 3 use under cl 63.08. Nevertheless, and as we have already indicated, we do not consider that the amenity of the area would be further damaged by the change in activities beyond the limited purpose of the preserved existing use right, whether that be considered as flag factory or supermarket.
2. Accordingly, we see no problems for this project under cl 63.05 and its provisos, notwithstanding that planning permission is required under the first of them.
3. Reference was also made to cl 63.09. That clause relates specifically to shops. It reads:

• Construct or carry out a building or works under clause 63.05 for a shop with a leaseable floor area exceeding 500 square metres.
• Use for land under Clause 63.08 for a shop with a leaseable floor area exceeding 500 square meters.

1. The question arises as to how this clause is to be interpreted and applied. The proposed supermarket is certainly to have a leaseable floor area exceeding 500 square metres. Does that mean that a permit cannot be granted for it. It is obvious enough that this restriction to 500 square metres does not apply to Business 2 zone land which is where all the leaseable floor area is to be located. This clause applies only to existing use rights and thus only to the land which the existing use provisions have application. In other words, this restriction applies only to areas A and C, and not to 188 Whitehorse Road or any of the Business 2 zone land. No leaseable floor area at all, much less more than 500 square metres of it, is to be located on area A or C or both of them together, or 19 Jersey Street or 21 Jersey Street, or both of them together.
2. It strikes us that these restrictions are intended to prevent a shop of more than 500 square metres of leaseable floor area on the land to which the existing use right applies and on the land in relation to which the existing use right is intended to be relied upon. It would be an absurd result if this restriction to 500 square metres of leasable floor area, intended to apply to the land to which the existing use right applies, was to be applied in such a way as to impose that restriction on adjoining land in a different zone. In this case the adjoining land is in a Business 2 zone, but such a situation could just as easily arise in relation to a couple of bits of access driveway adjacent to a similar area of Business 1 zone land where shop including supermarket is as of right, and does not even required a use permit. This principle, of whether this driveway tail can wag the supermarket dog, if it is correct at all, must be applicable in all relevant situations and cannot vary on whether the adjoining land happens to be Business 1 or Business 2 zone.
3. It would be most unfortunate, as well as absurd, if this situation dictated that the company must avoid use of areas A and C and accept, on an ongoing basis, the inferior third option for loading bay location and access. Of course, no matter how unfortunate, if that is the law it must be applied. Nevertheless, where ambiguity exists and alternative interpretations are available, the interpretation that leads to absurdity should be avoided. That is a long recognised principle of statutory interpretation.
4. Furthermore, it is also along established principle of statutory interpretation, and one now enshrined in section 35 of the Interpretation of Legislation Act, that the interpretation should be preferred which achieves the policies of or purposes behind the legislative provision. Even if one literal reading of cl 63.09 might be said to lead to a limitation of less than 500 square metres of leaseable floor area for shop on the adjoining property, we think such a result is not only absurd, but contrary to the intended purpose of the existing use provisions in cl 63 generally and those of 63.09 in particular.
5. Although we would have come to this view in any event, it is strongly reinforced by reference to cl 14 (6) (a) and (b) of the Melbourne Metropolitan Planning Scheme as it existed prior to 16 February 1988 and the same provisions in the so called "Day one" planning schemes that came into operation throughout Victoria on that date.
6. Subsequently, on 30 October 1989 (also known as "Day two") the so called Day two planning schemes came into operation. The Melbourne Metropolitan Planning Scheme ordinance provisions, the Day one planning schemes and the Day two planning schemes are all forerunners of the current cl 63 provisions including, in particular, the forerunner provisions of the current cl 63.09 in relation to shop conditions and the 500 square metre limitation.
7. The Day two planning schemes and the current planning schemes are written in the so called "Plain English" drafting style. The Day two schemes are a "policy neutral" transcription of the Day one scheme provision. The new wording is not to be taken as changing the meaning.
8. It is a shortcoming of the plain English drafting style, that has been noted on a number of occasions, that although it is plain in the sense of being shorter and apparently more simple, in practice, and when applied to complex situations, it is sometimes more ambiguous and less clear than the old style. The style employed in the Day one planning schemes was sometimes more convoluted, but upon careful reading was often clearer. Perhaps it is not surprising that clarity is not always enhanced by brevity and that sometimes clarity is lost when clarifying phrases are eliminated.
9. Clause 63.09 in relation to shop conditions proves to be a case in point. It is helpful, in the circumstances, to look at the original wording to assist in interpreting the current wording where the current wording is a "policy free' transcription of the original. The original cl 14 (6) (a) and (b) in the Day one schemes read:

(6) (a) The responsible authority shall not grant permission pursuant to the provisions of sub-clause (3) or sub-clause (4) hereof to use land for the purpose of shop where the gross leaseable floor area of the buildings to be used for that purpose on such land pursuant to such permission will exceed 500 square metres.

(b) The responsible authority shall not grant permission pursuant to the terms of proviso (c) of sub-clause (2) hereof to construct buildings on any land for the purpose of shop where the gross leaseable floor area of all buildings constructed pursuant to such permission will exceed 500 square metres.

1. It is obvious that these provisions are not only the forerunners of cl 63.09 but are the origin and express the purpose of the current provisions.
2. Sub-clause (a) in particular, but both of them together, make it clear that the restriction of 500 square metres of gross leaseable floor area applies to the area of the buildings being the buildings on such land, namely the land to which the non conforming use rights apply. Non-conforming use was the expression used in the Day one scheme, and the earlier Melbourne Metropolitan Planning Scheme, in relation to what are now called existing use rights applicable to land uses appearing in section 3 of a relevant table of uses.
3. Mr Gobbo referred us to these provisions from cl 14 of the Day one planning schemes. Although we would have come to the same conclusion in any event, this usefully reinforces the view that we have adopted.
4. Accordingly, we do not consider that cl 63.09 applies constraints that are relevant to the present case.
5. Some reference was also made to cl 63.10 referred to damaged or destroyed buildings or works. It provides:

If at least 50 percent of the gross floor area of a building or at least 50 percent of the area of any works is damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with this scheme, unless a permit is granted to continue the use, and to construct or carry out buildings or works.

1. This clause is not a problem for the company in its promotion of its current proposal. Again it applies to buildings and works on the land to which existing use rights for a section 3 use exist. It does not apply to neighbouring land in relation to which no existing use rights are relied upon. We accept that the 50 percent destruction, indeed 100 percent destruction of the flag building would bring in cl 63.10 if it was sought to continue an existing use for a section 3 land use on the adjoining land. As things stand however, a planning permit is sought under section 2 of the table of uses for the Business 2 zone, and no reliance on existing use rights is made for Business 2 land.
2. Furthermore, so far as areas A and C are concerned, although cl 63.10 could apply, it does not apply in the present case. No building on either of those areas is to be damaged, destroyed or demolished, and neither are any works. Repairing or improving the driveway by sealing it does not amount to its destruction.
3. Even if it did, we would give the necessary approval. We have regard to the purposes behind cl 63.10 including that, in the event of such a degree of destruction, the planning scheme requires consideration as to whether the time has come for the prohibited use to be relocated, and for the use of the land in question to come into accordance with the planning scheme. Although the provision calls for a consideration as to whether the use should cease in those circumstances, it does not provide that it must necessarily cease. Continuation requires a planning permit but such permit can be granted in appropriate circumstances. In current circumstances, in relation to areas A and C, such permission would clearly be appropriate.

1. The principle ground of opposition to this proposal, so far as the responsible authority is concerned, concerns its view of strategic planning considerations in relation to the Balwyn Shopping Centre. This has been put in terms of the Municipal Strategic Statement, the Local Planning Policy Framework (in particular cl 22.10) of the planning scheme, and the draft Balwyn Structure Plan. Mention is also made of State Planning Policy Framework and the Business 2 zoning. The central point being made is the proposition that any so called "core" retailing proposal, including any second supermarket, should be located in the "core" retail area of the Business 1 zone at, around and to the east of the Balwyn Road intersection. No such new supermarket should be located, according to this notion, in the Business 2 zone land and toward the western end of the neighbourhood centre.
2. In aid of this argument, reference is made in particular, to the local retail centre policy provisions in cl 22.10 of the planning scheme. Understandably these provisions emphasis the importance of local centres like this one and the need to support and reinforce their retail function and vitality (see cl 22.10-02).
3. In cl 22.10-03 there are several policy propositions. They include the proposition that "core retail activities" be encouraged within Business 1 zones and that such activities be generally discouraged in Business 2 and business 3 zones. It is suggested that, to allow this proposed supermarket on this site would be contrary to that policy.
4. That suggestion may be simple, but it is far too simple. These propositions speak of "encouragement" and "general discouragement". Neither expression purports to prohibit supermarkets in Business 2 zones. Policy provisions, in any event, cannot impose such prohibitions. They provide guidance, but admit that there are circumstances where the indications of some guiding provisions are overruled by other considerations. That is specifically recognised here with such words as "encouraged" and "generally discouraged". These words specifically recognise that there may be circumstances where, despite such encouragement or discouragement, a supermarket in a Business 2 zone could and should be approved. To do so, where the circumstances warrant that course, is not to run contrary to the policy, but to do something that it contemplates. It is, of course, important that careful consideration needs to be given as to whether permission should be given in the particular circumstances of the particular case.
5. In this regard, the situation is somewhat similar to that created by the particular purpose recited in cl 34.02 relating to the Business 2 zone. Apart from purposes generally applicable to all zones the purpose given in relation to the business 2 zone says:

To encourage the development of offices and associated commercial uses.

1. Of course this proposal does accord with that purpose. It is to provide nearly twice as much office space as it would provide retail space. It is not correct to interpret or apply that purpose as it if meant that anything other than offices, including retailing and supermarkets, are to be excluded from Business 2 zone land. If that was intended, then the land use "shop" would not appear in section 2 of the table of uses for the zone in cl 34.02-1. It would appear as a prohibited use in section 3 of that table. That is not the situation. Shop, including supermarket, is not allowed as of right in the Business 2 zone, but it is allowable with planning permission. The responsible authority, and on review this tribunal, is called upon to give serious and careful consideration as to whether, in the circumstances of a particular case, such permission should be granted. It would not be a proper exercise of this responsibility to simple refuse permission on the basis of what is "encouraged" in the purpose or the policy provisions of cl 32.10-03. The question becomes whether this, when all the circumstances are properly assessed and considered, is a case where permissions should be granted.
2. Arguments were raised, and cases cited, which suggest a distinction between "core retail activities", and other retail activities is an unfortunate one in this context, and should be disregarded. In fact we understood Mr Rantino, on behalf of the responsible authority to accept and endorse these propositions.
3. A further aspect is a suggestion on behalf of the company that modern planning looks to a consideration of such a centre as this as a whole rather than in segmented parts. This apparently emerging approach to planning disapproves of differing zoning within a centre. That is interesting, but we are confronted with a situation where there are two business zones in this centre. This does not mean that a consideration of the interests of the centre as a whole is to be put on one side. On the contrary, that is clearly important. That is really reflected in the Local Retail Centre Policy at cl 22.10 generally and the policy provision from cl 22.10-03 that reads:

Office, residential and community infrastructure that enhance the vitality of a shopping centre but encouraged:

1. It is a relevant, indeed a compelling, circumstance that this site is really the only practical opportunity for a second supermarket in this centre for the foreseeable future. It is all very well to take a doctrinaire approach of saying that a supermarket should be in the Business 1 zone, but that is hardly to the point if there is no opportunity in the Business 1 zone. There remains the question of how important it is that there should be a second supermarket here. How important is it to the strength and vitality of the centre as a whole that there should be a second supermarket that would provide competition and variety?
2. It is clearly of some importance. In fact, we consider this question to be one of considerable importance.
3. Mr Rantino, on behalf of the responsible authority, agrees that it would be a valuable advantage for the centre to have such a second supermarket. His qualification is to say that this should not be "at any price". He is right. The question calls for evaluation and balancing of advantages and disadvantages from a planning point of view. The converse proposition is just as important. The proposal should not be refused "at any price". The price, in practical terms and for the foreseeable future, would be not a second supermarket in the Business 1 zone but no second supermarket at all.
4. Supermarkets on the scale of modern supermarkets, including this proposal, require considerable areas, both for their so called "foot plate" and for their parking. They cannot effectively operate without sufficient areas for both of those things. Many towns, suburbs and many local centres were developed long before modern supermarkets of this sort were invented. It is not unusual to find situations, in towns and suburbs, where it is impossible to find a site that is ideal in terms of location in the heart of a centre or in a Business 1 zone. In those circumstances, it is of little use to pine over the absence of the theoretical ideal. It is often necessary, in the real world, to accept some optimum proposition that is available, rather than to have none or insufficient because of the lack of ideal sites. Such facilities are important to the vitality of town centres and suburban centres which are likely to languish, decay or fail without them. Many examples can be found in towns and suburbs where centres have developed long before modern supermarkets where no large central retailing sites are available and where sites that are available have had to be utilised, perhaps on the periphery of a centre or the periphery of a town. What might be said in relation to smaller shops providing for daily and weekly needs, is not necessarily true in relation to supermarkets. The reality of their needing considerable areas, sometimes only available towards the periphery of a centre, cannot be wished away. The absence of a theoretical but impractical first preference does not mean that second best should not be adopted rather than the third best of not having an important or necessary facility at all.
5. In this case we accept, on the evidence presented, that there is a need for a second supermarket in this centre. It is not just a matter of the economic evidence indicating that there is a demand and that the proposed supermarket can be expected to attract custom. We accept that competition with the existing Safeway is likely to improve the contribution that enterprise makes to the centre and the streetscape but, in any event, a second supermarket will strengthen the centre and provide more variety. It will also reduce the leakage of retail spending to other centres and other municipalities. The strengthening of this centre will be an advantage to the various speciality shops, not only at the western end, but also around Balwyn Road and to the east. The evidence also indicates some community request or demand for a second supermarket.
6. The first policy proposition under cl 22.10-03 is that it is policy that the basis of future use and development of individual shopping centres, in the absence of a Structure Plan, be in accordance with table 1 attached to the clause. Table 1 refers to various centres including the Balwyn one. It describes its current role as "Large Convenience Retail Centre".
7. The table then goes on under a heading of "DESCRIPTION & ACTIVITIES" to say:

Strong retail centre with major supermarket facilities and broad range of convenience goods, eateries and banks. Community facilities are located nearby. Current role is appropriate for centre.

1. It may be noted that reference is to supermarket facilities, not the one existing facility. The current role of the centre is appropriate, but that role would not be changed whether or not this proposal is approved. It might be strengthened by the approval, but not changed to a different role.
2. The table also deals briefly with the future role of the Balwyn Centre with the following three words:

1. There is no doubting that this proposed supermarket would certainly strengthen the centre and consolidate its current role.
2. We assess this proposal to be in accordance with the policies of cl 22.10, rather than contrary to them. The same is generally true of the other state and local policy provisions referred to. We do not think it necessary to go through them all, item by item.
3. We note that the Municipal Strategic Statement is intended to be a broad directional indication of what local planning is about, rather than to contain specific local policies within it only to have them repeated or contradicted in the local planning policy framework. In any event, we do not find this proposal, when properly understood in all the circumstances, to be contrary to the municipal strategic statement.
4. There are several references in cl 22.10 to the notion of there being a structure plan. A sound and well thought out structure plan is likely to be a considerable asset to the future planning of this centre. Unfortunately, no such structure plan exists at present. There is a draft structure plan for Balwyn entitled "A Better Balwyn". This is not more than a very preliminary draft to a possible future structure plan. It was described on all hands, including on behalf of the responsible authority, as being "embryonic". It is so preliminary that the company and its advisors were apparently initially denied access to it. It is certainly not a "seriously entertained planning proposal" within the meaning that that expression has come to have in planning circles. It has apparently not progressed beyond being adopted for initial consultation purposes. Even that would be preliminary to refining it to a document that might be put on exhibition. It is obviously not part of the planning scheme, or incorporated into the planning scheme. It is so tentative and preliminary that we cannot regard it as more than background information and we do not afford it weight in assessing the strategic planning issue.
5. The draft document, and work done on it or preliminary to it, has revealed that there is an issue as to whether there should be a second supermarket in the Balwyn Centre. On the information presented to us it appears that there is no more than a recognition that there is an issue in the Draft document, with no guidance as to whether the establishment of such a second supermarket is, or is not, of strategic planning importance in the circumstances. We are not aware of anything in these preliminary thoughts that makes an assessment of whether a second supermarket is important, or how important it might be. Far less is there an assessment of whether such a facility can realistically be accommodated in the Business 1 zone, or whether, in the circumstances, it ought to be encouraged, in the particular circumstances of this case, in the Business 2 zone on the currently proposed site.
6. We are faced with an absence of detailed well considered current strategic planning in relation to the particular point that is before us. Insofar as there are more general planning policies at a State level including strategic planning propositions available, we find support for this proposal. It also accords well with general planning principles and orderly planning for the centre. We find the ground for rejecting this proposal adopted by the responsible authority and based on strategic planning to be unjustified in the circumstances. We consider that in the broader planning context the proposal should be approved.

1. The main issues for the objectors revolved around possible overshadowing, privacy for their rear gardens, noise generated by trucks delivering goods to the site, the location of the roof plant, and light spill from security lighting on the site generally.

1. The residents at 2, 4 and 6 Grant Avenue raised concerns about the overshadowing created by the proposed development. Upon viewing the shadow diagrams it can be seen that the overshadowing impact on their rear properties, which are all large in size, will be minimal and the 3 metre high proposed fence which the residents would like to see constructed will in fact create its own shadow. The setback which more than complies with the ResCode[2] standards and the shadowing will be of minimal impact. It noted there are substantial stands of trees in the rear gardens of most of their properties that in fact also create considerable shadowing to the private open space. A complaint was voiced that Mr Galbraith, arborist, had misplotted a tree in a plan he prepared but that is not material.

1. Privacy was raised by some residents as a potential issue, however given the setbacks to the office floor levels and the privacy screens that are proposed to be provided onto the rear and side elevations of the offices, overlooking has been satisfactorily dealt with.

1. The objectors raised the issue of noise generation suggesting it will be more than the existing noise generation from the flag factory. The noise of concern is that of the 'beepers' of reversing trucks using the loading dock and garbage compactor. The sealed nature of the access way and the walled and roofed enclosure to the loading dock will significantly reduce this impact. Other plant and equipment is to be suitably located and we do not entertain concern about other traffic noise particularly in view of the background traffic noise of Whitehorse Road. People with the potential for some movement or noise will not be in proximity to residents. A suitable noise minimisation condition can address noise issues.

1. Access to the loading dock is via Jersey Street for trucks and vans and will generate approximately 30 vehicles per day based upon the operations of the Safeway supermarket at Southland which the traffic engineer consider to be a suitable comparison in that its peak was on the Thursday and Friday evenings with an average of 25 vehicles per day. Therefore, it could be expected that the number of vehicles entering and leaving the site will be in this order of magnitude.
2. The residents raised conflict with the high demand for access to the service station on the corner of Jersey Street, especially on Tuesdays when patrons used their "shopper dockets" for discount fuel as a major cause of concern. This does not coincide with the peak delivery times to the loading dock for the supermarket as indicated by the permit applicant and is not viewed by us as being a significant issue.
3. The traffic engineers undertook a number of video surveys to give real time analysis of the capacity to the network in the area and compared this to the traffic generated by the Coles supermarket at the corner of Burke Road and Balwyn Road in North Balwyn and this gave a good comparison of demand. The general consensus by both the applicant's traffic engineers and council's traffic engineers was that the capacity of the network could deal with the expected increase of cars and trucks to the site and that there will be minimal detriment to the surrounding network.
4. Concerns were raised about the access from Whitehorse Road into the basement car parks. Although some objector apprehensions were raised the arrangements satisfy VicRoads, indeed are dictated by that authority. We do not anticipate any undue access, capacity or obstruction problems with the entry and exit arrangements at this point. One objector was concerned about a pedestrian operated pedestrian crossing a little to the east of the proposed entry point. The question of whether some adjustment is called for will be a matter for VicRoads. However, we do not agree with the objector who considered that a pedestrian operated traffic light device is inappropriate. On the contrary, it is the most appropriate in this location. It means that it will only be operated when it is needed so as not to obstruct traffic flow on the busy Whitehorse Road at other times.
5. The objectors contended that the Jersey Street access gave the potential for trucks to 'rat run' the surrounding streets, particularly trucks travelling to the site from the south. It was the traffic engineer's position that delivery vehicles would be highly unlikely to use the smaller surrounding residential streets but would use the major signalised connector roads. We agree. The issue of the customers to the supermarket and the office and rat running was raised but we consider that these possibilities are not highly likely in fact rare and minor and not likely to cause any detriment to residents in the surrounding streets.

1. In our description of the proposal in this case, commencing at paragraph 42 above, we noted that the plans provide for 213 basement car parking spaces and 324 spaces altogether on the site. This represents a shortfall compared to the standard requirements in cl 52.06 of the planning scheme in relation to car parking provision.
2. There is a local policy that indicates figures that might generally be adopted in the municipality. Its indications are for lesser spaces compared with the standard requirements in cl 52.06. These too can be reduced where that is warranted. In any event, it is really the standard requirements of cl 52.06 that should be the starting point.
3. That provision, whilst specifying standard requirements, also provides for parking requirements to be reduced or waived in suitable circumstances. It lists a number of relevant considerations to be taken into account in deciding whether there should be a reduction or waiver of parking, and if so to what extent. It should be remembered that the standard requirements are intended to be applicable in all circumstances. The capacity to give planning permission for a reduction on standard requirements reflects the reality that there are circumstances where a reduction is justified, indeed where the standard requirement would be excessive. For example, the standard requirement would apply to a stand alone supermarket where there was no other parking available and no opportunity to integrate with other land uses where a single parking space can serve somebody attending various premises.
4. In this case we are satisfied that the proposed reductions from standard requirements are justified and that planning permission for such reductions should be granted. The position of the site is such that it can serve an immediate catchment where people may walk or cycle to the premises. It is served by excellent public transport and the integration factor can operate. Furthermore, comparison surveys and empirical evidence indicates that the provision will be satisfactory, indeed conservative.
5. As a matter of fact, we consider that these facilities, with the proposed off street parking, will be an advantage and an enhancement to parking in the area rather than a detriment. Peak times for these facilities will not coincide with peak demand for entertainment facilities such as, in particular, the Balwyn Cinema. That facility provides very little parking indeed, and generates a good deal of on street parking, not only in Whitehorse Road, but in neighbouring residential streets. This proposal enables safe and convenient nearby parking to be provided for cinema patrons at times that will be off peak for the supermarket and offices and when spare parking capacity will consequently be available. Mr Di Petro, who has an interest in the operation of the cinema initially raised concerns about parking. However, he did not pursue the point, apparently after realising the potential of this proposal to advantage his business and the amenity of the area in relation to the question of parking.

1. We consider the objection that the proposal would be an overdevelopment of the site to be misconceived. Overdevelopment would normally be assessed in terms of the actual physical development proposed and not, as attempted by some objectors here, to be assessed in terms of the number of car movements to and from the site in a particular day or the presence of people. In any event, such car movements will be from and to Whitehorse Road and can be coped with within the capacity of that road and the road system generally.
2. The suggestion that the building should be reduced, for example by removing the offices, was advanced without any reason being given. We suppose that we were intended to assume that any reduction would be a good thing. We take the contrary view. It would be a pity and a waste to eliminate one or both of the office levels from this Business 2 zone proposal. They can be suitably accommodated, accord with policy and purposes for the use of land in this zone and accord with policy indicators that would approve of rather higher buildings on this site than are currently proposed.
3. The complaint that people will come to the site is not valid. Of course the presence of people is intended. It is intended for all retail and office developments in any business zone. In this case people will come and go through the front of the building, indeed over the Whitehorse Road frontage. This frontage will be the centre one with other commercial frontages on either side of it. It is to a very busy road and not in proximity to the houses in nearby residential streets. The arrangements proposed are sensible rather than defective.

1. Questions of rezoning were raised but are beyond the scope of our consideration of the case, indeed beyond our jurisdiction and powers.

1. Complaints were raised that external lighting could be a nuisance to people residing in surrounding streets. In the first place, such external lighting will be concentrated at the front of the building and away from houses. Any other minor outdoor lighting as might be required can be readily dealt with by the imposition of a condition requiring it to be directed, baffled or of an intensity to the satisfaction of the responsible authority so as to prevent light spill beyond the property and to prevent light nuisances on surrounding land.

1. The Responsible Authority was concerned (however in a minor way) about location of bicycle parking for staff and supermarket and office visitors. Bike parking lockers have been provided in the basement for the use of staff and customers. This is the most secure location for these facilities and with the addition of bicycle hoops being provided on the Whitehorse Road frontage this is satisfactory. A permit condition is appropriate.

1. In the course of a lengthy hearing, some other minor matters were mentioned. However we have dealt with all the issues of substance, and such other matters do not trouble us in relation to whether a permit should be granted. They are either too minor to be of significance, or can readily be dealt with by means of conditions.

1. Although we are not in a position to finalise this case, it may be that we will need to deal with the question of permit conditions. The responsible authority provided a draft set of conditions for discussion and consideration on a "without prejudice" basis. The draft in fact contained proposed words of permission in the following terms:

Use and development of the land for a shop, supermarket and office, alteration to access to a road in a Road Zone Category 1 and a reduction in the associated car parking and bicycle facility requirements.

1. In the course of the hearing, there was discussion of the draft and submissions made in relation to aspects of it. It is convenient that we should record our tentative views in relation to conditions at this stage. This does not mean that, in the event of a permit being granted, the draft may not be further altered. However, for convenience, we set out a modified set of draft conditions. We have modified the draft to improve English expression and to delete repetitions and redundancies. Some proposed conditions have been retained because they are consented to. That does not mean we would have retained them otherwise.

1. Before the development starts, amended plans must be submitted to and approved by the Responsible Authority. The plans are to be drawn to scale at 1:100 with dimensions and three (3) copies are to be provided. When approved the plans will be endorsed as evidence of their approval and will thereafter be the endorsed plans in relation to this permit. The modified plans for approval are to be substantially in accordance with the plans submitted with the application but modified to show:
   • (a) modifications to reflect the access arrangements to Whitehorse Road depicted in drawing GM1780-SK01 by GTA Consultants as further modified in Appendix C to the written report of Jason Walsh, Traffic Engineer, presented at the hearing by the Victorian Civil and Administrative Tribunal of planning application for review Thornton Group Pty Ltd v Boroondara CC being P2730/2008;
   • (b) all "small" parking spaces to be labelled as such on the plan;
   • (c) a minimum height clearance of 2.3m on levels within the basement car park that contain disabled car spaces with no resultant increase in the overall external height of the building;
   • (d) the provision of showers, change rooms, and bicycle parking facilities in accordance with the requirements of Clause 52.34; and
   • (e) provision of a scale Plan of Variation of an Easement detailing the variation to the easement with bearings and distances and the particulars of the section of easement to be varied for certification, to the satisfaction of Yarra Valley Water.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. Concurrently with the submission of amended plans in accordance with condition 1, a Signage, Public Art and Graphic Strategy must be submitted to the Responsible Authority for approval. The Strategy must detail the proposed locations for future advertising signage and details of any and all public art works and graphics to be installed or displayed, including plans and any other relevant information. The Strategy must also detail how the graphics and public art work will be managed and maintained. Once approved, any signage displayed on the land must be displayed in accordance with the Strategy, to the satisfaction of the Responsible Authority. Approval of the Strategy does not constitute planning permission to display advertising signage pursuant to the Boroondara Planning Scheme where that planning scheme specifically requires a planning permit to be obtained for such display.

1. Prior to commencement of any use or any roadworks authorised by this permit the applicant must prepare a functional layout plan for the access arrangement on Whitehorse Road in accordance with the proposed access arrangement outlined on the plan (drawing number GM11780 SK01) prepared by GTA Consultants as modified by Appendix C of the written report of Jason Walsh traffic engineer referred to in condition 1 (a) above.
2. Prior to the commencement of any roadworks in, on, under or over the Whitehorse Road reservation the applicant must have first applied for and received written consent from VicRoads for those works in accordance with Section 63 of the Road Management Act 2004.
3. Any redundant crossover on Whitehorse Road must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.
4. The applicant must arrange for and pay the full costs of all public works required to satisfy VicRoads' conditions pursuant to this permit.
5. Prior to the commencement of any use authorised by this permit the applicant must complete all roadworks relating to access arrangement on Whitehorse Road in accordance with the approved plan and to the satisfaction of the Responsible Authority.

1. The amenity of the area must to the satisfaction of the Responsible Authority not be adversely affected by the use or development as a result of:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works, stored goods or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products or oil; or
   • (d) the presence of vermin;

1. All outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent light from the site causing any detriment to the locality.

1. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and must be connected to a registered security service.

1. Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

1. Unless shown on the endorsed plans or in accordance with the prior written consent of the Responsible Authority no air conditioning or cooling units, condensers and the like are to be located on roofs, external walls or on balconies.

1. All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in a storage area to the satisfaction of the Responsible Authority. This storage area must, to the satisfaction of the Responsible Authority, be:
   • (a) properly paved and drained to a legal point of discharge;
   • (b) screened from view with a suitably designed enclosure;
   • (c) supplied with adequate hot and cold water; and
   • (d) maintained in a clean and tidy condition free from offensive odours.

1. The owner or other responsible person must provide a regular private waste collection including a regular collection of recyclable materials from the land to the satisfaction of the Responsible Authority. Council's waste collection contractor will not service uses on the land. This condition must be brought to the attention of all prospective tenants and purchasers of individual dwellings and tenancies.

1. Collection of waste must be conducted so as not to cause disturbance to nearby residential properties and, except with the further consent of the Responsible Authority, may only occur between the hours of 7 am to 8 pm Monday to Friday and 9 am to 8 pm on Saturdays, Sundays and Public Holidays.

1. Prior to the commencement of the use hereby permitted, a Waste Management Plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service for each of the users on the subject land, and must include information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection.

1. Prior to the commencement of any works, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Plan must provide details of the following:
   • (a) hours for construction activity (including demolition);
   • (b) measures to control noise, dust, water and sediment laden runoff;
   • (c) the location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (d) the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows with any basement car park on the land being made available without delay for use by sub-contractors/tradespersons upon completion of such basement car park areas;
   • (e) measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (f) contact details of key construction site staff;
   • (g) the location of any site sheds and the like; and
   • (h) any other relevant matters, including VicRoads' requirements.

1. Except with the further consent of the Responsible Authority, deliveries to the site must only be undertaken between the hours of 7.00 am and 10.00 pm Monday to Friday and 9.00 am to 8.00 pm on Saturdays, Sundays and Public Holidays save that these restrictions do not apply to the delivery of newspapers.
2. Delivery vehicles must not exceed 12.5m in length.

1. Prior to the commencement of the uses hereby permitted, a car parking management plan must be prepared and submitted to the Responsible Authority for approval. The plan must include:
   • (a) a plan showing the allocation of car spaces for each use;
   • (b) a plan showing the allocation of to employees/staff of each use within the development and spaces allocated for visitors/shoppers associated with uses;
   • (c) details of proposed parking restrictions;
   • (d) hours of operation of the car park;
   • (e) details of any control equipment to be used;
   • (f) details of how the car parking will be managed, including any car parking charges.

When approved, the provision of car parking must be in accordance with the approved plan.

1. Car parking for the proposed development must be provided at the following minimum rates:

supermarket 4 spaces per 100 sqm of leaseable floor area,

shop (other than supermarket) 3 spaces per 100 sqm of leaseable floor area, and

office 3 spaces per 100 sqm of leaseable floor area.

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose.

1. Concurrently with the submission of amended plans for endorsement in accordance with Condition 1, details of any car park control equipment (controlling access to and egress from the internal/basement car parks) must be submitted to the Responsible Authority for approval. These details must include a car park control device which can be accessed by visitors to the development including clear instructions on how to operate any security system.

Lighting of car parks, accessways and public areas

1. External lighting must be to the satisfaction of the Responsible Authority.

1. Concurrently with the submission of amended plans for endorsement in accordance with Condition 1, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:
   • (a) an accurate survey of all existing vegetation to be removed and retained and other natural features;
   • (b) the area(s) set aside for landscaping;
   • (c) a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;
   • (d) paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;
   • (e) proposed street furniture, including seating, bike rails, rubbish bins and the like;

must be submitted to the Responsible Authority for approval. When the plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of the endorsed plans of this Permit.

1. Landscaping and street furniture shown on the endorsed landscape plan must be carried out, installed and completed to the satisfaction of the Responsible Authority prior to the occupation of the development

1. All landscaping works and street furniture shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

1. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within the road reserve must be provided to the satisfaction of the Responsible Authority. No such works are to commence unless a Supervision Permit is first obtained from the Responsible Authority.

1. Any new vehicle crossover or modification to an existing vehicle crossover, must be constructed to the satisfaction of the Responsible Authority. No such works are to commence unless a Supervision Permit is first obtained from the Responsible Authority.

1. Prior to the occupation of the development, access for disabled persons must be provided to the site and buildings. All work carried out to provide such access must be constructed to the satisfaction of the Responsible Authority.

Reticulated electricity to be provided underground

1. Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

1. Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables.

1. The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, work or landscaping be disturbed by any works undertaken by Council in the future.

1. This Permit will expire if:
   • (a) the development and use does not start within two (2) years of the issue date of this Permit; or
   • (b) the development is not completed within four (4) years of the issue date of this Permit; or
   • (c) the variation of an easement is not certified within two (2) years of the issue date of t his Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

1. We are satisfied in relation to the various issues that have been raised in this case as to the planning merits of the proposal. We would be ready, at this stage, to grant a planning permit if it were not for the complication that arose in the course of the hearing in relation to the non-availability of the portion of 19 Jersey Street referred to as area B. Because there are no existing use rights derived from the flag factory use in relation to that portion it cannot now be used for ancillary aspects of the proposed supermarket. It is in the Residential 1 zone where such use is prohibited and where no existing use rights exist for that small portion of the land.
2. This means that, for the project to proceed, the company will need to pursue one or other of its three options for loading bay access that do not need to utilise area B. We assume that it will wish to pursue option 1 since we have found that that approach is open to it. However, whichever option it wishes to pursue, it will need to notify the other parties and prepare, file and circulate amended plans demonstrating that option. It will require some time for that purpose. We will give some directions in that connection.
3. It has also been contemplated that there will need to be a further hearing in this case, limited to questions directly arising in relation to whatever option for loading bay access the company wishes to pursue. Such further hearing is fixed for 19 June 2009.

[1] It is now consolidated with number 188 Whitehorse Road.

[2] The Rescode provisions of the planning scheme are not directly relevant here and are only mentioned as a comparison and guide.