Victorian Civil and Administrative Tribunal|2000-03-31|Before: Ms J, Mr J

Sunbury Residents Association & Ors v Hume CC & Eddie Hirsch [2000] VCAT 690 (31 March 2000)

Planning List - Section 82 Planning and Environment Act 1987 - Hume Planning Scheme - Rural zone - Airport Environs Overlay - Petrol filling Station- Convenience Store- Café - Take-away food - Advertising signs - purpose of the zone - rural areas strategy - whether proposal policy neutral.

APPLICANTS FOR REVIEW: Sunbury Residents Association Inc (objectors) & Ors

Planning List - Section 80 Planning and Environment Act 1987 - Hume Planning Scheme - Rural zone - Airport Environs Overlay - Petrol filling Station- Convenience Store- Café - Take-away food - Advertising signs - Review conditions.

A permit must not be granted with respect to permit application P5176.

Ms J Halliday, Solicitor of Middletons, Moore and Bevins Lawyers, appeared for the Responsible Authority.

Mr J Gobbo QC and Mr A Finanzio of Counsel, by direct brief, appeared on behalf of the permit applicant.

Mr H Bugeja appeared on behalf of the Sunbury Residents Association Inc.

Mr G Westwood, appeared on behalf of the Sunbury Conservation Society Inc.

1. This matter relates to two applications for review which were heard together on the 17 December 1999.

2. Application No. 1999/67205 is made under Section 82 of the Planning and Environment Act 1987 by objectors (Sunbury Residents Association Inc. and

Mr R Irvine ) against the decision of the Responsible Authority to grant a permit with respect to permit application P5176. The permit application seeks permission for the use and development of land at 475 Sunbury Road, Bulla, for the purpose of a petrol filling station, convenience store, café, take away food premises and advertising signs.

3. The grounds upon which the objectors made their application may be summarised as follows:

1. The development is contrary to the Hume City's Rural Areas Strategy Plan.

2. The development is contrary to State Planning policy - Non Urban Areas Policy.

3. The development is contrary to proper and orderly development.

4. The development will set precedents for other commercial developments within the non-urban wedge.

4. Application No 1999/72481 is made under Section 80 of the Planning and Environment Act 1987 by the permit applicant against a number of conditions imposed by the Responsible Authority on the Notice of Decision to Grant a Permit. The conditions in dispute are numbered 1 (parts a, b, c, d and h), 4, 6, 9, 10, 12, 16, 23 (parts b (2), b (4), c and f), 25 and 27.

5. At the commencement of the hearing, I dealt with 2 preliminary matters.

6. First, I considered an application by the Sunbury Conservation Society Inc. to be joined as a party to the proceedings. There was no objection from any of the other parties to this group being joined to these proceedings. I therefore ordered the Sunbury Conservation Society Inc be joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.

7. Second, I noted that the Responsible Authority had not filed a statement of the grounds upon which it would rely with respect to both applications. The other parties did not oppose the Responsible Authority being heard and the hearing proceeding.

8. The parties tabled and spoke to written submissions. In addition I was presented with various plans, photographs, maps and extracts from other documents relevant to the consideration of the proposal all of which have been retained on the Tribunal's file. Mr Gobbo called Mr Michael Barlow, a town planning consultant, and Ms Carol Frank- Mas, a landscape architect, to give expert evidence. Both experts tabled and spoke to written reports and were available for cross examination. After the hearing, I inspected the subject land and the surrounding area. I have considered the submissions and evidence presented during the course of the hearing and the observations I made during the course of my site inspection.

9. Mr Barlow gave the following succinct description of the subject land and the surrounding area which generally accords with my own observations:

The subject site is located on the south-west corner of Sunbury Road and Loemans Road, Bulla. It is more particularly described as Crown Allotments 38 and 38C Township of Bulla, Parish of Bulla Bulla, County of Bourke and includes two certificates of Title as follows:

The subject site is currently vacant. It is generally flat and almost devoid of trees and shrubs, with the exception of a small group of trees in the north-east corner adjacent to the intersection of Sunbury and Loemans Road.

The surrounding area may be described as follows:

* In the area immediately to the west of the subject site, the land is flat and is used for farming purposes. There are no dwellings in close proximity.

* Land to the east is used for grazing. It slopes gradually toward the east, before falling away sharply to form the Deep Creek valley.

* Land to the north on the opposite side of Sunbury (Road ) slopes to the north and east toward the Deep Creek valley. Directly opposite the site, land appears to be used for farming purposes while land a few hundred metres to the west are used for quarrying and tipping.

There are expansive views from the subject site in all directions.

Sunbury Road is a sealed two-lane highway that performs a main road function. It has 20-30 m wide verges on either side that contain isolated stands of trees at regular intervals. Loemans Road is a sealed two-lane road that performs a secondary road function. The Council Officer's report for this application noted that both are "...busy roads which carry large and constant volumes of traffic." The intersection of the two roads is treated as a roundabout with a tall pole light in the centre and street lighting on the Sunbury Road approach from Bulla.

10. In addition to the above, the land is located in close proximity but beyond the western edge of the Bulla township, approximately 7-8 km east of Sunbury and to the north-west of Melbourne Airport.

11. Ms Halliday described the proposal as follows:

The proposal set out in the application was lodged with the Council in January 1999 and is to use and develop land at 475 Sunbury Road, Bulla for the purpose of a petrol station, convenience shop, café and take-away food premises and to display signage in accordance with the drawings attached to the application. The proposed development would include a 240 metre square convenience shop, 150 metre square café and take-away food premises with seating for a maximum of 70 persons, car parking for 27 cars and five trucks, eight car petrol pumps, two truck petrol pumps and associated signage. Part of the subject site would be landscaped.

12. Mr Barlow provided the following additional details in relation to the location of the main building and details of the advertising signs proposed:

- Sunbury- Bulla Road - 32.5 metres (building wall) and 20m (canopy)

- Loemans Road - 120m (building wall) and 87m (canopy)

- a 12m high internally illuminated identification sign on the Sunbury Road boundary,

- a 2.4m high floodlit price sign adjacent to the Loemans Road boundary,

- small entry-exit signs, internally illuminated fascia signs on the canopy, and

- floodlit fascia signs on the convenience shop/café building.

13. Mr Barlow went on to describe the appearance and layout of the proposal as follows:

* The development has typical service station design and layout and features pitched roofs with gable ends to both the canopy and convenience shop/café. The front wall of the convenience shop/café building is glazed along the whole of its front, and part of its side elevation. The whole of the rear elevation and the balance of the sides are to be constructed in painted concrete or masonary.

14. Ms Frank -Mas presented a plan which illustrates how the site is to be landscaped.

15. At the time the applications were heard, the new format Victoria Planning Provisions (VPP) based planning scheme for the municipality had not been approved.

16. Under the planning scheme in force at the time that the Responsible Authority made its decision and the applications heard, the land was located within the "General Farming B" zone, the provisions for which were found in clause 127. Pursuant to the land use table at clause 127-1, petrol filling station, convenience store, café and take- away food premises were all prohibited uses. However, pursuant to "site specific controls" at clause 127-7C, discretion was available for a permit to be granted for the development and use the subject land for the purposes proposed in the permit application. The site specific control was introduced into the planning scheme by Amendment L47 in March 1999. I understand that the amendment which introduced this site specific control was exempted from the need for notice to be given as this was seen to be duplicating the notice requirements that would need to be undertaken under the planning permit application process. It is also worthwhile noting that the former planning scheme also set out another site specific control at clause 127 - 7A which allowed the land to be used and developed for the purpose of a Light Industry (a publishing and printing complex).

17. Other relevant planning scheme provisions applicable under the former planning scheme were at clause 14-9 (regional policy for non-urban areas), clause 18 (advertising sign controls), clause 19 (car parking), clause 104-4 (objectives for rural areas), clause 155 (Melbourne Airport Environs Overlay) clause 157 (specific requirements for petrol stations) and clause 159 (Siting of buildings - Bulla).

18. During the course of the hearing, Ms Halliday advised that the Responsible Authority had prepared a new planning scheme based on the VPP format as required by the Planning and Environment (Planning Schemes) Act 1996. Ms Halliday said that the new planning scheme had been adopted by the Responsible Authority and submitted for Ministerial approval. Given that the new planning scheme had been adopted at the time of the hearing, and was therefore "seriously entertained", the parties presented submissions about the proposal against the provisions of the new planning scheme. Mr Barlow also gave evidence with respect to his assessment of the proposal against the new scheme.

19. Subsequent to the hearing, notice of the approval of the new VPP based Hume Planning Scheme was published in the Government Gazette on the 17 February 2000. The provisions of the new planning scheme are now in force, and accordingly, the application must be decided on the basis of the new planning scheme.

20. Under the new Hume Planning Scheme, the proposed land uses fall within the definitions of "Service Station " and "Food and Drink Premises". The subject land is located within the "Rural Zone", the provisions for which are found at clause 35.01. The purpose of the zone is:

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

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

- Protection and creation of an effective rural infrastructure and land resource.

- Improvement of existing agricultural techniques.

- Protection and enhancement of the bio-diversity of the area.

- Value adding to agricultural products at source.

- Promotion of economic development compatible with rural activities.

- Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision.

21. Under the provisions for Rural Zone, the land uses proposed in the application fall within Section 2 of the land use table, and therefore may be allowed with a permit. A permit is also required for all buildings and works associated with Section 2 uses. Clause 35.01-6 sets out the decision guidelines relating to general, rural, environmental, design and siting issues.

22. The subject land is also affected by the Airport Environs Overlay, the provisions for which are set out in Clause 45.02. The purpose of the overlay control is to identify land which is or will be subject to high levels of aircraft noise and to ensure that land use and development is compatible with the operation of the airports.

23. Other relevant provisions to be considered are as follows:

* Clause 52.05 which sets out requirements for advertising signs, with the relevant decision guidelines set out at clause 52.05-2.

* Clause 52.06 which sets out the requirements for car parking provision.

* Clause 52.12 which sets out specific provisions for service stations.

* Clause 52.29 which applies to land adjacent to a Road Zone Category 1, where new access is to be created.

* Clause 65 which sets out the decision guidelines to be considered in the case of all applications including, inter alia, the provisions of the planning scheme's State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF). The LPPF consists of a Municipal Strategic Statement (MSS) at clause 21 and Local Policies at clause 22.

24. Clause 21-01-5 of the MSS provides a "snapshot" of the City of Hume which includes a description of rural areas. The MSS states that "Rural" land occupies 72% of the municipality's area, the majority of this land is used for agricultural activity and that Bulla is one of three small townships in rural areas. The MSS states that:

Much of the rural land in the City is characterised by a flat and sparsely treed landscape that enables open views across wide expanses of cleared grazing land and of attractive creek valleys. One of the consequences of such an open landscape is that there is only a limited amount of development that can be absorbed without the rural character changing.

25. Whilst acknowledging that the number of viable farms in the city has declined, the MSS states that maintaining the productive use of rural land is considered achievable and a desirable strategy to pursue. In this context one of the challenges which the Council faces identified in the MSS is "to encourage the productive use of the City's rural areas without diminishing the high landscape qualities of those areas."

26. The MSS includes a number of broad planning objectives including:

- Protection and enhancement of the unique landscape qualities and features that contribute to the rural character of the municipality and which give the different suburbs and towns in the City their own identity.

- The cost effective and orderly management of urban growth in a way that achieves the greatest social benefits to the community, but does not diminish the unique character and identity of the City.

- Productive use of rural land, ensuring compatibility with identified heritage and environmental values and effective separation between urban areas.

- The generation of new job opportunities to meet the needs of a growing population

- Enhanced amenity and appearance of the City's employment and residential areas, activity centres, open spaces, gateways and approach roads.

27. Clause 21.03-6 of MSS sets objectives, opportunities and constraints as well as strategies for rural areas, with those most relevant to the consideration of this proposal set out as follows:

* To encourage the productive use and improved management of rural land and reclamation of degraded land, while maintaining the rural character and appearance of rural areas.

* To maintain the rural areas as a non-urban buffer separating Sunbury from the main metropolitan area and as a backdrop to urban areas.

* The rural areas are fundamental to the character and identity of the City, and are highly valued by both rural residents and residents who live in the City's urban areas.

* The rural areas provide an important separation and buffer between Sunbury and the urban areas in the eastern half of the City, contributing to its identity as a place where city meets country.

* There are many roads in the rural areas that are flanked by attractive open landscapes and which afford views of creek valleys and other prominent topographical features.

* Owners and occupiers of low density residential and rural living allotments desire and frequently demand access to urban services.

* The rural areas contain many notable and environmental and topographical features.

* Encourage the use of rural land for rural purposes and the protection of the rural landscapes from incompatible development.

* Discourage the use of land in rural areas for urban purposes which are able to be accommodated and would be better suited in the City's urban areas and townships; have potential to be widely replicated; or do not require separation from urban areas for amenity reasons.

* Ensure that new development is located and designed to have a minimal visual impact on the rural character of the area.

* Contain the development of Bulla and Kalkallo within existing township boundaries, as shown on Rural Areas Structure Plan, and encourage the consolidation of smaller allotments where necessary to achieve adequate on-site effluent disposal.

28. In addition to the MSS, the LPPF also sets out the "Rural land character and urban design local policy" (at clause 22.02) which applies to land included within the Rural zone. The policy states that "development which is incompatible with the landscape or which is highly visible has the potential to diminish the visual qualities of these features and the rural character of the city". The policy states that "Maintenance of the rural character and appearance of rural areas is a key objective of the MSS."

* To ensure that the siting and design of new development protects and enhances the character of the city's rural areas.

* To protect significant roadside views of hilltops, creek valleys and other important features of landscape interest, from development that is poorly sited, or of an inappropriate scale, height, bulk or appearance.

30. Under the policy, Sunbury Road is listed as an approach road. Policies for "approach roads" include:

* New development within 100 metres of an approach road shown on the attached plan is discouraged.

* Where development within 100 metres of an approach road cannot be avoided, it is to be screened from view by planting (using species compatible with the landscape character of the area.

* New development along approach roads is sited and designed so as not to (inter- alia) ... dominate views across open plains.

31. The "Advertising Signs Local Policy" at clause 22.09, sets out objectives which seek to, inter alia, ensure that signs do not detract from the amenity and character of surrounding area.

32. I was also referred to the "Rural Areas Strategy Plan - Towards 2011" June 1993 (RASP) by Ms Halliday, the applicants for review and Mr Barlow. The RASP was an incorporated document within the former planning scheme, and is a reference document under the planning scheme now in force. Ms Halliday stated that:

This strategy plan sets out Council's policies for the rural areas within the municipality. The plan is essentially for use by the Council to co-ordinate its own actions in planning and managing future land use, subdivision and development in the rural areas of Hume.

33. The assessment of the characteristics of rural areas in RASP indicates that the land is located within area of "High Sensitivity" with respect to change, with the assessment of sensitivity based on scenic and heritage "values", including views, vegetation and cultural geological, archeological and botanical significance.

...the 1993 Strategy identifies on page 13 of Chapter 6 that the land use emphasis in the rural areas will remain on "broadacre agricultural and rural land uses, as the most appropriate activities to maintain and manage the land resource in the future". It makes the following comment in relation to the subject site and surrounding land:

Little justification exists to encourage further development in these areas (as a general principle - except where individual proposals of merit are put to Council for special consideration as outlined in the following chapter)

35. The RASP then sets out the following seven criteria to assess proposals of particular merit:

* The proposal involves a rural or related use or a use which is appropriate to locate in a rural area.

* The proposal includes initiatives which would significantly improve the quality of the rural land resource and/or environmental quality of the area.

* The proposal would not prejudice the continuation of rural and related activities on other land in the vicinity having regard to the policies for land use in those areas contained in this strategy.

* The proposal presents a long term sustainable land management solution which is based on rural or rural related activities.

* The proposal is commercially viable and marketable, and does not present undue risk of failure.

* The proposal identifies and takes measure to conserve sites of environmental and biological significance on the property.

* Consideration of Government Policy regarding subdivision in rural areas.

36. The Responsible Authority required notice of the application to be given and in response it received objections from the Sunbury Residents Association Inc., the Sunbury Conservation Society Inc and Mr Robert Irvine. Ms Halliday summarised the grounds of objection as follows:

* The petrol station would be a commercial development in a rural area and would expand along the entire "green belt zone" to later include other commercial developments.

* A better location for the development would be closer to the Bulla Village.

* The Bulla Hill carries heavy loads of traffic and would require large road modifications to make it safe as Bulla Hill is already a dangerous traffic area.

* The people of Sunbury do not want development on any of the approaches to the town. It is still possible to believe that we live in a rural area but if the green belt is taken away we might as well live in the suburbs.

* The current proposal is contrary to intentions of this land as is proposed by the original amendment.

* The development will become a dominant and visible feature visible from a wide area including the Bulla Village and distract from the current Bulla views.

37. In addition the Responsible Authority received two letters and a petition supporting the proposal.

38. The Responsible Authority also referred the application to the following authorities:

39. None of these authorities objected to the proposal, although VicRoads and the Victorian WorkCover Authority have specified conditions to be included on any permit that should issue.

40. The officer's report presented to the Responsible Authority recommended refusal of the permit application. The Responsible Authority subsequently made its decision to approve the permit application subject to conditions.

41. Mr Bugeja attacked the proposal largely on the basis that it is contrary to the long term strategies and policies applicable to the municipality's rural areas. He said that these policies and strategies have been developed and implemented over the last 30 years and are now reflected in the new planning scheme. In summary, he submitted that:

* The Non-Urban Areas policy at clause 14-9 of the now defunct planning scheme recognised that rural areas must be retained for farming, nature conservation and rural landscape and that important landscapes in these areas were to be protected from, inter alia, incompatible development and the incursion of urban uses.

* The RASP, which identifies Sunbury Road as a significant view corridor as well as being an entrance to the Bulla township and rural areas to the west of the township, calls for the containment of townships and recognises the need to maintain a permanent non-urban wedge between Melbourne and the townships of Sunbury and Bulla, and

* The new planning scheme's MSS recognises that rural areas are fundamental to the character and identity of the municipality and are valued by the residents, and that the objectives and strategies in the MSS seek to protect and enhance the unique landscape features that contribute to the city's rural character.

42. Mr Bugeja submitted that the proposal is contrary to the policies of both the previous and current planning schemes and the RASP and, as such, should not be supported. He submitted that the MSS discourages the use of rural land for urban purposes whilst it's strategies seek to contain development within existing township boundaries and to protect and enhance the rural character of Sunbury Road. He argued that although discretion exists for a permit to be issued, such discretion should not be exercised given the proposal's inconsistency with the relevant planning policies and strategies. Mr Bugeja stated that a key objective of the planning reform process is to ensure that decisions are driven by the planning scheme's policies and strategies, as opposed to the statutory provisions, and cited the Tribunal's decision in Moodie C and Ors v Wyndham CC and Barry Hooper (1998/068739 2VPR 23_)_ to support his position.

43. Mr Bugeja also submitted that the proposal is contrary to the orderly and proper planning of the area on the basis that:

* A facility of the type proposed should be located within the township itself and not outside the township in a location that Bulla residents will find difficult to access.

* The approval of this proposal will set a clear and strong precedent for other lots along Sunbury Road to be used for non-rural purposes.

44. The submissions made by Mr Irvine and Mr Westwood essentially repeated and supported those made by Mr Bugeja, although Mr Westwood added that the proposal should also be refused on the basis that valuable farmland is being lost.

45. Ms Halliday submitted that the Responsible Authority's decision to support the application, subject to conditions requiring modifications to the proposal, is reasonable.

46. With respect to planning policy, she argued that although the RASP states that there is little justification for further development in the area within which the subject land lies, the policy also allows for individual proposals of substantial merit to be considered. In this case, the Responsible Authority considered that proposal is of substantial merit and worthy of approval. Ms Halliday went on to argue that the proposal has been designed in a manner that is site responsive and its visual impact is moderated. She added that the modifications required by the Responsible Authority's conditions are reasonable and would result in the provision of setbacks, an overall building design, landscaping and associated advertising that will not obscure prominent views or adversely affect the rural character of the area.

47. Ms Halliday also submitted that the provision of this type of facility on a "highway" carrying traffic volumes exceeding 18,000 vehicles per day (of which 5.2 per cent are heavy vehicles) is appropriate in a locality where a tip and several quarries exist nearby. She argued that it does not automatically follow that if the proposed development is allowed that it will set a precedent for further development on adjoining of nearby sites, but rather any other proposal for nearby land will need to be considered on its own individual merits.

48. Mr Gobbo submitted that the subject land is well suited to the proposed use given its location on main road that caters for all kinds of traffic and on an intersection that has a roundabout which facilitates safe traffic movements. In responding to the submissions put forward by the objectors, Mr Gobbo generally accepted the legitimacy of planning policy statements and the objective which seek to maintain a permanent "green wedge" between metropolitan Melbourne and the townships of Bulla and Sunbury. With respect to this objective, Mr Gobbo stated that:

It is enshrined in current planning policy (Clauses 14-9 and 103-4 of the Planning Scheme as well as Rural Areas Strategy Plan- Towards 2011) and is retained as part of the new format planning scheme to be introduced in the near future.

49. However, he submitted that whilst petrol stations are not rural land uses, their existence within a rural area does not automatically compromise the "rural character" of an area. He suggested that service centres of a variety of types have become an accepted part of a rural environment. He argued that from a policy viewpoint the proposed land use can said to be "policy neutral" in the sense that it is neither encouraged or discouraged. Furthermore he argued that the proposal does not prejudice the viability of agricultural or farming land uses, nor will it have a detrimental impact on the landscape quality within the green wedge, particularly that of those identified as having high landscape or conservation values.

50. With respect to the landscape qualities of the area, Mr Gobbo submitted (in summary) that:

* The proposed development will not prejudice the landscape significance of the area, but rather make a positive contribution to those qualities;

* The development form proposed and landscaping will not obscure views of prominent hilltops, ridgelines and creek valleys, nor will it dominate views across plains.

* The rural "feel" or character of the area will not be compromised.

51. Mr Gobbo also submitted that the permit conditions in dispute are unreasonable and unnecessary, essentially on the basis that the proposed buildings and signage are appropriately designed and sited, whilst the landscaping proposed will result in a positive contribution being made to both the appearance of the site and character of the area. Mr Gobbo relied on the expert evidence presented by Mr Barlow and Ms Frank-Mas to substantiate his submissions with respect to the visual impact of the proposed development and its appropriateness the land having regard to the planing scheme's policies.

52. Having considered the submissions and evidence presented and having inspected the subject land and its locality, I am of the view that the key issue in the matter before me is whether the proposal is in accordance with planning policy and the purpose of the zone.

53. Mr Barlow expressed the view that a key objective of planning policies in the Bulla and Sunbury corridor since the early 1970's has been the preservation of the non-urban "green-wedge". He said that the two broad strategies for achieving this objective essentially involve maintaining and enhancing rural uses whilst discouraging proposals that undermine the viability of these uses and to ensure that new development does not compromise or adversely affect the rural landscape.

54. Mr Barlow said that a general reading of the MSS and local policies could lead one to the conclusion that most urban uses, such as those proposed, are discouraged and should not be supported in rural areas. Despite this he expressed the view that the refusal of the proposal on this basis is inconsistent with the spirit and intent of the planning reform process, and referred to the following passage from the "Final Report - New Format Planning Schemes: April 1999":

...it must be constantly asked, irrespective of whether it is stated that the use is "encouraged" or "discouraged", what will the outcome be? Will it further the objectives of policy or will it be contrary to them? If it will do neither (in other words it is policy neutral), then it must be asked, why not allow the use?There may be other policy or amenity reasons why it should not be allowed. But if there are not, the intent of the reforms is to allow it to proceed, notwithstanding the policy may specifically provide that it is a use to be "discouraged."

55. Mr Barlow said that the proposal will not conflict with the overall objectives for rural areas and can be said to be "policy neutral". In his view, the proposal does not directly conflict with the overall objectives for rural areas on the basis that:

* it will not undermine the viability of farming or other uses in this area,

* it is a proposal meets the criteria set out in the RASP for "Proposals of Individual Merit", and

* there is limited opportunity for it to be properly located within the Bulla township because of the lack of suitable sites with appropriate physical characteristics and satisfactory separation from residential properties

56. In considering whether the proposal is "policy neutral", it is important to consider the role of policy under the new planning scheme. Under the provisions of the new planning scheme, discretion exists for an almost unlimited range of land uses to be permitted within the "Rural Zone". Only three land uses ("brothel", "cinema based entertainment facility" and "shop other than convenience shop and equestrian supplies") are prohibited, and this is in stark contrast to the provisions of the now defunct planning scheme where discretion existed for a far more limited range of land uses to be permitted.

57. Although the new scheme provides the discretion for a greater range of land uses to be considered, this does not mean that all of these land uses will result in an acceptable outcome. This point is set out in clause 31.01-2 of the planning scheme which states:

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the decision guidelines in clause 65.

58. The above statement makes it clear that proposals must be considered against the SPPF and LPPF in determining whether or not permission is granted for a use in Section 2. It is also relevant that the decision guidelines for the zone and those set out at clause 65 require consideration to be given to the SPPF and LPPF, whilst one of the purposes of the "Rural Zone" is to implement planning scheme's policy framework. Accordingly whether or not a particular proposal achieves an "outcome" which is consistent with the planning scheme's policies is a major factor to be considered when exercising discretion.

59. It was put to me that the proposal achieves an outcome that is "policy neutral" and accordingly the spirit and intent of the planning reform process is that such proposals should be approved.

60. After reviewing the LPPF, I find that MSS and the relevant local policy set out a very clear policy position as to the role and future development potential of the municipality's rural areas. In summary I consider that the policies and strategies in the MSS, insofar as they are relevant to this matter, call for:

* The containment of urban development within the boundaries of existing urban areas, including the Bulla township.

* Urban land uses to be located within urban areas and the use of rural land for such purposes discouraged.

* The orderly management of urban growth to achieve greatest social benefit.

* Effective non-urban buffers between Sunbury, Bulla and metropolitan Melbourne to be maintained.

* The protection and enhancement of the rural character of the non urban buffer areas in between townships, particularly those long the main approach roads.

61. I find that the proposal is in conflict with all of the above points.

62. The proposal involves the establishment of a facility which is comprised of a range of land uses that are clearly "urban" in nature. Whilst the proposed facility is to be located in close proximity to the Bulla township, it is none the less outside the township boundaries and within a rural area. I do not accept Mr Gobbo's submission that the proposed use is one which is neither encouraged or discouraged. It seems to me that the MSS clearly discourages the use of rural land for urban purposes as this works against strategies that seek to contain urban development within identified boundaries. These are legitimate and appropriate strategies to be pursued so that infrastructure, facilities and services can be provided in an efficient, cost effective and orderly manner.

63. It may appear that the subject land is only a short distance from the Bulla township. However the narrowness, steepness and lack of footpath along Sunbury Road between the subject land and the Bulla acts, to some extent, as a barrier between the subject land and the township. The nature of this barrier is such that the proposed facility is not conveniently located for use by residents of the township and I would expect that most, if not all, residents would need to drive there. Whilst it would be reasonable to expect that some residents would drive to a similar facility even if located within the township, none the less, I consider that it would be more appropriate to locate the land uses proposed within the township so that all residents have better access to the services and facilities provided. This of course would not deny passing traffic the opportunity to access the facility. In my view the provision of the land uses proposed within the township is more consistent with the MSS objective which seeks to achieve orderly management of urban growth to achieve greatest social benefit.

64. Mr Barlow expressed the view that the type of facility proposed is now more commonly found on the outskirts of smaller towns due to the need for larger sites and amenity problems associated with direct interfaces with residential uses. He said that, in the case of the Bulla township, there are no suitable sites, and accordingly this contributes to the justification for approving the proposal.

65. It seems to me that the component of the proposed facility which may not be appropriate within the established township is that associated with heavy vehicle refuelling and parking. The other uses proposed (convenience shop, café, take away food and petrol filling for cars) are uses which are commonly found in urban areas. Accordingly the question which must be asked is whether there is such a need to provide a facility able to accommodate heavy vehicle parking and refuelling that it justifies the use of rural land for the full range of purposes proposed in a location outside the township. In my view such justification has not been demonstrated.

66. Based on the traffic counts presented by Ms Halliday, the number of heavy vehicles using Sunbury Road is relatively low in terms of both the overall percentage of vehicle traffic and the actual number of heavy vehicles. Although Mr Gobbo asserted that the proposed facility will be an "unqualified success", there was no evidence presented that demonstrated that there is a need for a facility of this type or that it will meet a demand that cannot be met by other facilities.

67. In such circumstances I do not consider that sufficient justification has been provided for me to reach a conclusion that there is such a demonstrated need for this facility that it is appropriate for it to be approved in a location where urban uses are discouraged by the policies of the MSS.

68. The provisions of the RASP state that there is little justification to encourage further development in the area within which the subject land lies. However the RASP also includes a policy provision whereby "Individual Proposals of Merit" may be considered and Mr Barlow gave evidence to the effect that the proposal is in accordance with the relevant criteria. However I note that the Panel and Advisory Committee (the panel) that reviewed the new planning scheme before it was approved was critical of the "Particular proposals of merit" approach. In the extract of the report tendered to me by Ms Halliday, the Panel stated (in part):

Fundamentally, the suitability of land for subdivision and the density of any such development should be based on a Land Capability study. The panel recognises that this is sometimes a difficult task in the environment of a Council, usually due to the expectations of property owners. At some point the issue must be tackled in a rational and methodical way in order that all decision making can be seen to be transparent and logical, based on sound town planning principles contained in the Council's strategy in the planning scheme. This is one of the primary aims of the planning reform process. In most cases it is certainty that is required of the planning system, not uncertainty or speculation caused by decisions made on an individual basis.

It is for this reason that the Panel must express deep reservations about the "Particular Proposals of Merit" approach to rural residential development. This policy referred to the "Rural Areas Local Policy" leads to the very cycle of expectations and pressure on the Council for subdivision witnessed at the Panel hearing.

69. Whilst the Panel made these references in relation to proposals for subdivision, I consider that the same principles apply to the consideration of proposals such as that before me. The Responsible Authority's decision to allow the development and use of the subject land represents an "ad hoc" approach to decision making. It does not appear to me that the Responsible Authority's decision to approve the permit application, albeit with modifications, had due regard to the long standing policies "green wedge" policies which Mr Gobbo said were "enshrined" in the now defunct planning scheme and have been "retained as part of the new format planning scheme" that is now in force.

70. Rather the Responsible Authority's ability to grant a permit was based on a site specific provision inserted into the now defunct planning scheme via an amendment which was not exposed to the rigours of the full public exhibition process. Furthermore I was provided with no policy or strategic justification for this site specific provision being included within the former planning scheme in the first place.

71. Whilst each individual proposal must be considered on its own merits, I consider it likely that the approval of this proposal will lead to the Responsible Authority being subject to more pressure from rural land owners to allow urban development on their land. The MSS acknowledges that there has been a decline in viable rural enterprises, and, in such circumstances, the potential convert the use of rural land for urban purposes is a seductive proposition for the owners of such land. The Responsible Authority must resist the temptation to make "ad hoc" decisions in response to claims that rural enterprises are not viable. Rather the appropriate approach is to create certainty by implementing the planning scheme's policies and strategies in a consistent manner, and if necessary, to amend the planning scheme following a strategic review.

72. I accept that the subject land may not represent a viable parcel of agricultural land in its own right. This does not however mean that it imposes upon the Responsible Authority an obligation to grant a permit for a use which may be discretionary within the zone. Given the broadening of the discretion now available in the new format schemes, it is of fundamental importance that decision making be driven by a strong commitment to the provisions of the SPPF and LPPF.

73. The planning scheme's policy framework also makes it clear that the rural character of the non urban areas in between townships are to be protected and enhanced so that they are maintained as effective buffer areas. I consider that the approval of this proposal will work against these objectives.

74. I do not accept the simplicity of Mr Gobbo's argument that service centres of the type proposed in this application are commonly found along rural highways, and that they have become an accepted part of the rural environment. Whilst the planning scheme provides the discretion for service centres to be located in rural locations, it seems to me that its not just a matter of such service centres being of an appropriate design, but that they should provide facilities and services that they encourage drivers to stop and rest during long trips in the interests of road safety, and that they be appropriately located to perform this important function. Whilst it was submitted that the proposal may be considered in the same light as those along other rural roads, it was not submitted that this facility will perform the same role or function that service centres in more remote locations perform. In this case, the subject land is not in a remote location where a high proportion of passing motorists are likely to have been travelling for a lengthy period. Rather the subject land is located in relatively short driving time from central Melbourne and in close proximity to Sunbury. In my view the proposed facility will perform more of a convenience function, and accordingly such facilities are better located within an existing urban area.

75. In terms of the impact on the quality of the rural landscape, the general thrust of the planning scheme's policies, is to protect and enhance the qualities of the non urban areas. The subject land is located in an area which is identified as having "High Sensitivity" to change. Ms Frank- Mas and Mr Barlow observed that only limited views are available towards the flat plains to the north-west of the subject land, with most views towards this area from Sunbury Road screened by existing vegetation. None the less views towards this area are readily available when one approaches the subject land from the Bulla township. These views, in combination to those available towards the east, provide a clear impression that the area along both sides of Sunbury Road is non urban in character. The proposal, even if modified as required by the Responsible Authority's conditions, will diminish the availability of these views. Whilst I agree that views towards the flat plains are not as important as the vistas over the area on the opposite side of Sunbury Road, I do not regard the change in the rural landscape that would occur due to the proposed development as a positive aspect of this proposal.

76. Given that the new planning scheme requires that discretion must be exercised having regard to the planning policy framework, I do not consider it appropriate to allow the use and development of the subject land for urban purposes when the LPPF clearly directs such uses to be located within townships, township boundaries are to be contained and integrity of the non urban areas in between townships is to be protected and enhanced. I also consider that the proposal incorporates a number of land uses (convenience shop, café, take away food) which are more appropriately located within the Bulla township. If these uses cannot be accommodated within the existing township then the appropriate course of action is to implement a review of the land use zoning and township boundaries and to set out strategies to allow for these land uses to be provided. Furthermore I do not consider the change to the appearance of the land is a positive aspect of this proposal.

77. I consider that this proposal is not "policy neutral", but rather contrary to the policies and strategies in the MSS. I consider that the proposal will not facilitate an outcome which accords with the proper implementation of the planning scheme's policy framework as required by the purpose of the Rural Zone.

78. Given the above, the application for review against the Responsible Authority's decision to grant a permit is allowed and no permit is granted. In view of my decision that a permit should not be granted, the application seeking the review of permit conditions is dismissed.

79. Subsequent to me forming my conclusions about this matter and after these reasons were for all intents and purposes completed (ie: apart from corrections to spelling, English expression, formatting and now this additional paragraph), a letter was received from the Sunbury Residents Association Inc. The letter was marked "urgent". Attached to the letter were various pages or extracts (ie: an incomplete version) from a report by the panel on Amendment L44 to the former Hume Planning Scheme. The letter requests that I consider the recommendations of the panel. In the circumstances I have disregarded this submission. None of the parties requested leave to make further submissions nor did I indicate that any further submissions would be accepted. I am not able to take any account of post hearing submissions of which the other parties have no knowledge of and have had no opportunity to respond to. Furthermore the document attached to the letter is incomplete and I am unable to conclude that what was submitted is relevant to the circumstances before me. My conclusions as set out in these reasons have not changed.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Environment (Planning Schemes) Act 1996

Sunbury Residents Association & Ors v Hume CC & Eddie Hirsch [2000] VCAT 690

At a glance

Court

Decision date

Before

Source

Judgment (180 paragraphs)

Sunbury Residents Association & Ors v Hume CC & Eddie Hirsch [2000] VCAT 690 (31 March 2000)

Parties

Legislation Cited (3)