Is the proposed use and development of a convenience restaurant and service station, subdivision of land, creation of carriageway easements, reduction in car parking requirements and reduction in the loading bay requirements as proposed in Planning Permit Application No. 715699:

1. Generally in accordance with the Mernda Strategy Plan (approved October 2014 and amended January 2008), being the incorporated document under the Incorporated Plan Overlay Schedule 1; and
2. Generally in accordance with the Ashley Park Development Plan approved by Council on 11 June 2009, being the approved Development Plan under the Development Plan Overlay Schedule 5.

1. Given the issues requiring determination and my findings, I have not approached the question in terms of whether the proposal is 'prohibited' as suggested by the responsible authority. Rather, I have directed my response to the specific issue of whether the proposal is "generally in accordance" with the approved plans, being terminology used in the planning controls themselves.

1. Planning permission is required for the proposal under both the IPO and DPO. Both contain provisions (clauses 43.03-1 and 43.04-1, respectively) preventing the grant of a permit unless the proposal is generally in accordance with the relevant approved Incorporated Plan and Development Plan.[3]
2. It follows that for a consolidated permit to be granted comprising multiple planning scheme permissions, the proposal must be found to be generally in accordance with both the relevant approved Incorporated Plan and Development Plan, in addition to complying with the other planning controls under which permission is required.[4]
3. It is broadly relevant that the Tribunal would not have the power to direct the amendment of the approved Incorporated Plan, although it would potentially have jurisdiction to direct the amendment of a Development Plan if such application was made.[5] There is no such concurrent proceeding before the Tribunal in respect of the subject land.

1. There was in-principle agreement between the parties as to the approach that the Tribunal should take to assessing 'general accordance'. This approach has been distilled from a consistent line of case law and includes:
   • general accordance is a question of fact to be determined in the circumstances of each case. The term itself contemplates some flexibility of application;
   • for a proposed development to be generally in accordance with the relevant plan, it need not be identical to that described in the development or incorporated plan;
   • the less detail and precision there is in the primary document/s, the more flexibility can be accorded to the term. The converse may also apply and this is a central issue in the proceeding;
   • it is appropriate to consider the incorporated plan and development plan as a whole when making this assessment, including its language and intent. The assessment should not involve a 'spot the difference examination' rather, it is question of whether the departures are "sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the [approved plan/s]".[6]
2. I accept that these are appropriate considerations in this proceeding when giving effect to the provisions of the IPO and DPO.
3. The parties also referred to a number of decisions by both parties in common, although the responsible authority sought to distinguish the facts of the current proceeding from those in some of the cases mentioned. I return to this issue later.

Application of legal principles to the facts of the proceeding

1. The responsible authority raised three main aspects of the proposal as constituting a lack of general accordance with the approved plans, namely:

1. the designation of the land in both the Strategy Plan and Development Plan as part of a broader parcel for standard residential development, contrasted with the proposed development which is a commercial use that is not consistent with the designation of the land; 2. the inclusion of a convenience restaurant in the proposal in circumstances where the Strategy Plan designates local convenience centres for facilities providing goods and services, and the subject land is not within or proximate to these centres; and

1. the road layout contained within the Development Plan provides for a service lane and an internal road with connectivity in a north-south direction. The proposal would deviate from the service lane layout, in addition to terminating the internal road at both sides of the site.
2. The permit applicant responded that the approved plans did not preclude a service station with a convenience restaurant from establishing in an identified residential area since the documents are silent in respect of the location of such uses. Land nominated for residential use has capacity to be used for an alternative non-residential use that is compatible with the residential zoning of the land whilst being generally in accordance with the approved plans. The plans do not prevent or discourage such non-residential uses in nominated residential areas. A service station is commonly permitted along main roads in such locations.
3. It was submitted that the Mernda Strategy Plan was regarded as a broad strategic document for a large area of land which does not provide specific locations for service stations or convenience restaurants. It was also considered unrealistic for a convenience restaurant of the type proposed to be required to locate within a local convenience centre.
4. Ms Cincotta also emphasised that the road layout shown on the approved plans was not fundamental or immutable and that the proposal was not substantially different in its intent. This stated intent was to 'provide appropriate property access controlling and ensur[ing] that active residential frontages are achieved'. It was submitted that this objective would not apply to the service station proposal. In any event, she alluded to the prospect of amending the site layout plan to provide a north-south linkage.

1. I have adopted a position that accepts some aspects of each party's case but not others, in that I find (referencing the council's points in paragraph 14 above):

1. There is potential for a commercial use such as a service station to be considered on this land yet still be generally in accordance with the approved plans, notwithstanding the underlying residential designation. Such a proposal would still need to comply with other mandatory aspects of the zone controls and clause 52.12, in addition to being appropriate having regard to planning policy and the matters in clause 65 of the planning scheme. These matters are beyond the scope of the preliminary issue; 2. However, the fact that a key aspect of the proposal is for a convenience restaurant but that such facility is not located within or adjacent to a nearby nominated local convenience centre means that the proposal as a whole cannot be found to be generally in accordance with at least the Strategy Plan; and

1. The proposed termination of the north-south roadway internal to this super lot and departure from the service lane layout is not necessarily fatal to the issue of general accordance. There may be other ways for such accordance to be achieved in light of the broad objective stated in the Development Plan. At the same time, the acceptability of the proposal in place of the identified road layout may be a significant consideration on the planning merits depending on evidence and submissions about the extent of connectivity and street activation.

1. I was taken to various aspects of the approved documents by each of the parties' representatives and have subsequently reviewed these in the context of the tendered documents more broadly. I do not propose to record each aspect to which I was referred, but will touch on key issues in these reasons.
2. Essentially, the Strategy Plan is a high level document that outlines the strategic future for a broad area of land[7] in a rapidly developing municipality. At the same time, it has provided a relatively high level of detail in respect of the key strategic elements of the centres and neighbourhoods to be created.
3. The land is identified within Precinct 2B of the Strategy Plan. A key objective[8] is "to create an interconnected set of neighbourhoods that each has a distinctive character. They should enable community participation, development and adaptation to change over time".
4. I deal first with the extent to which a service station could be generally in accordance with the relevant approved plans, putting aside for a moment the fact that the application includes a convenience restaurant component which raises complications I deal with below.
5. Relevantly, the Strategy Plan identifies specific locations and nominates sizes for each retail or activity centre. This descends to the level of local convenience centre. Two are identified in the immediate local area, some 500m - 1.2 km east and west of the subject land.[9] In addition, a Neighbourhood/Precinct Activity Centre is some 1.2km south of the site to comprise "retail, business/commercial and community land use..."
6. Local convenience centres are expressed in the document[10] as being:

. . . distributed to service walkable residential catchments with a radius of approximately 600m. These centres should typically contain two or three shops providing basic goods and services. Other attractions such as telephone boxes, a bus stop and post boxes should be provided in these locations.

1. A local convenience centre has been developed on the south east corner of Bridge Inn Road and Yan Yean Road, with complimentary land uses siting immediately adjacent to the area identified for the centre. This includes an existing service station and McDonald's convenience restaurant together with other complimentary uses.
2. I consider that the subject land is not identified as having a local convenience centre role. Rather, both the Strategy Plan and Development Plan nominate this land for conventional residential development.
3. I accept the applicant's submission that (in the absence of the convenience centre component), there would be scope to consider granting a permit for a service station on the subject land notwithstanding its designation for residential development. To this extent, I concur with the reasoning of Deputy President Gibson in the cases of Java Sands Pty Ltd v Frankston CC[11] (consistent with Amber Vision P/L v Wyndham CC[12]), that:

[25] The Langwarrin Outline Development Plan includes conventional residential areas and low density residential areas. Sites for schools, pre-schools and infant welfare centres (existing and proposed) are shown in the residential areas but not in the low density residential areas. There is no reference at all to child care centres.

[26] I do not consider that the identification of sites for schools, pre-schools and infant welfare centres is relevant to a consideration of where commercial child care centres may be established. I consider that commercial child care centres fall into a different category of use and the approved development plan simply does not descend to this level of detail. [My emphasis.]

1. It is important that there is no specification in either the Strategy Plan or Development Plan of locations for a service station. By virtue of the nature of such a use and development and the preference for a floor area of some 250 square metres for each local convenience centre, I consider that neither plan contemplates restricting the location of service stations to only local neighbourhood centres or in fact any other type of centre identified in the hierarchy.
2. A service station is a type of use that may be consistent with the purposes of the General Residential Zone which include "to allow. . . a limited range of other non residential uses to serve local community needs in appropriate locations". An assessment of the planning merits would otherwise provide the opportunity to consider whether this proposal would serve 'local community needs' or whether there are other policies that would support such a proposal in this particular location.
3. By contrast with my in-principle finding above, I consider that the inclusion of the convenience restaurant as a key aspect of the approval sought prevents me from finding that the proposal as a whole is generally in accordance with the relevant Strategy Plan.
4. It is noteworthy that there is no scope for an application to be made to the Tribunal to amend the Strategy Plan. More detailed observations were made in this regard about the role of the Tribunal in such situations in Jocelyn Meadows v Casey CC[13] and I echo these.
5. I appreciate that modern service stations are often sizeable and are integrated with one or more large (often chain style) convenience restaurants. There are no doubt economic, efficiency and convenience reasons for this co-location. All things being equal, where the planning documents do not justify a distinction in treatment between such uses, an integrated proposal may well be appropriate.
6. A convenience restaurant of some 160 square metres is proposed in the application, with separate entry off the hard stand area. While it would not doubt operate in conjunction with the service station, it is proposed to be included on its own title by the proposed subdivision that forms part of the application.[14] Separate planning permission is required for the use and development of a convenience restaurant in this zone although, in practice, the proposal has amalgamated the permissions sought into one permit application.
7. An underlying function of the approved plans is to nominate the locations of retail and service uses, rather than allowing them to emerge on an ad hoc basis.
8. Ms Cincotta submitted that "simply because the Strategy Plan nominates Activity Centres and Local Convenience Centres does not mean that any commercial or retail use must be confined to these locations". A similar submission was addressed by the Tribunal in Fabcot Pty Ltd v Whittlesea CC[15] as follows:

[43] There is nothing in the MTCCDP that suggests a supermarket is prohibited outside of the core area. However, the MTCCDP is not written in a way that lists all the uses that should or should not go in each precinct. To be generally in accordance with the MTCCDP we consider that it takes more than simply determining the use is not prohibited. The directions of the MTCCDP are more holistic in its vision to establish an urban village typology. Therefore to determine if a use is ' generally in accordance ' with the plan there is a need to consider the use location according to design parameters that go to establishing a traditional urban village. . .

[55] In our view, given the overall objectives of the MTCCDP area to create a 'traditional urban village' based on a 'main street' grid/core of activity within which the supermarket and department store retailing will occur, the corollary is that it will not occur out of this core. The introductory statements in section 3 of the MTCCDP reinforce that "retail development should have a strong relationship to the street" and that "the relationship between buildings, their uses, and the street will be a fundamental determinant of the Town's economic performance". This is supported by the broader directions of the Mernda Strategy Plan (section 3.4.3 page 26) that "Traditional activity centre design based on a 'main street' is encouraged".

1. I regard a convenience restaurant as precisely the type of land use and development intended to be accommodated within the local convenience centre designation in the Strategy Plan. While it is not a "shop" per se, I accept Mr McIlrath's submission that there is no justification to apply the more specific planning scheme definition to this term as it is used in the Structure Plan to encompass a retail premises that provides basic goods and services. This is reinforced by the terminology used in the mapping of the retail areas.
2. The reasoning of the Tribunal in Java Sands is a significant and relevant factor here, to the extent that the Deputy President held:

[28] . . . In my view, child care centres are part and parcel of residential areas. They meet a community need that is directly related to residential use and development in much the same way as schools and kindergartens. As such, I consider that a child care centre being located in a residential area, even a low density residential area, can be said to be generally in accordance with the development plan provided there are no specific locations otherwise shown for the location of such facilities. [My emphasis].

1. I find that the case before me is an example of where specific locations are shown for a key part of the facility as proposed. This particular type of convenience retail activity is the subject of specific direction within the approved document.
2. For the reasons above, I respectfully disagree with the applicant's submission that this particular Strategy Plan does not "provide prescription or details in relation to specific land use or development outcomes nor to prohibit specific outcomes on particular sites in the manner advocated by Council".
3. While it does not prescribe for particular uses or developments at the level of detail of a permit application, it does provide for the locations of such use and development, particularly in the case of land uses that should form part of nominated retail centres. This would still provide ample scope for the operation of the zone controls in the ordinary way to consider a wide range of permit applications as they emerge.
4. Having regard to the level of detail provided for local convenience centres and the nature of the convenience restaurant as providing a local retail function, I consider that it would not be generally in accordance with the Strategy Plan for such a use to locate outside such a designated centre. This is particularly the case where the local catchment is adequately provided for by the identification of such a centre in close proximity to the subject land.
5. I would also tend to the view that to site a substantial convenience restaurant outside a nearby local neighbourhood centre would not represent a minor departure from the relevant Precinct Plan. Rather, it would have potential to act as a precedent that would detract from the integrity of the planning for this residential area.
6. I accept that some local neighbourhood centres may develop to be larger in size than originally identified by the approved plans. In such instances, a question will arise as to whether such non-residential uses are appropriate adjacent to such centres, as is the case with the land to the east. In my opinion, there is a more clear opportunity in such settings for a complementary use and development to be regarded as being generally in accordance with the approved plans (rather than where they are remote from and effectively between such centres).
7. By contrast, while the Development Plan is intended to implement and give effect to the Strategy Plan, the Development Plan does not specifically refer to the location of the two most proximate local centres, presumably since they addressed in development plans for the adjacent areas. To this extent, it is less clear that the proposal would not be generally in accordance with that document.
8. In fact, in land use terms, the only real direction in respect of the land is that it is identified as residential and the findings I have made in respect of the first ground above would apply equally to the Development Plan.
9. On the issue of the road layout, I have turned to the Development Plan itself. It provides[16] that arterial and collector roads (such as Bridge Inn Road and Garden Road, respectively) should have "direct development frontage through the use of service lanes". This is articulated in the plan (Figure 41) showing a service lane to the north of the land and a local edge road running though the land in a north-south direction.
10. The area is included in Neighbourhood H which is identified by the plan as:

. . . a relatively isolated neighbourhood with limited ability to connect internally; and

The transmission easement, drainage reserve and Bridge Inn Road form very strong boundaries and provide interface conditions which are addressed with a service road, boulevard treatments and active frontage.

1. It is clear that the proposal would not be "in accordance" with this nominated layout. The more challenging question is whether it could be regarded as "generally in accordance" with it, as is the relevant test.
2. Whilst a reasonable level of detail is provided for in the document in terms of a service lane and the north-south road linkage, I accept the applicant's submission that it is important for this component to be assessed in the context of the underlying objectives for the local road network and emerging residential area. It may also be relevant that the service lane is not entirely continuous along this stretch of Bridge Inn Road and this infrastructure is referred to in the document as "the preferred" form of access control, indicating some flexibility.
3. It would be arguable on the planning merits that the proposed access arrangements to the site in combination with the surrounding road network would achieve sufficient compliance with the underlying objectives of providing internal connections and suitably direct/active development frontage.
4. Beyond this, I acknowledge that there is scope for the permit applicant to seek to amend the Development Plan to reflect the road layout as proposed. Alternatively, it may wish to amend the permit application to reconfigure the site layout to accommodate the main elements of the road network depicted in the Development Plan.

1. For the reasons above, I conclude that permit application No. 715699 is not generally in accordance with the approved Strategy Plan for the land.
2. I have listed the application for an urgent Directions Hearing to determine the future conduct of the application, bearing in mind its listing for hearing on 23 and 24 May 2016.

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[1] This combined facility would be located in the easternmost portion of the site, having an area of some 6,000 square metres of a total parcel of nearly 1.6 hectares.

[2] Given the exemptions from notice and review rights, there are no third parties to the proceeding.

[3] There is no deviation from this in the Schedule to the IPO as is sometimes the case.

[4] Such as clause 52.12 pertaining to service stations.

[5] Pursuant to section 149 of the Planning and Environment Act 1987, if the responsible authority has failed to or refused to endorse an amended plan.

[6] Relevant cases include Canet v Brimbank CC [2003] VCAT 13 and Raftopoulos v City of South Melbourne (unreported) appeal No. 1989/34936; Jocelyn Meadows v Casey CC [2005] VCAT 290; Amber Vision PL v Wyndham CC [2007] VCAT 1297; Mainstay Group Pty Ltd v Moreland SC [2005] VCAT 2189 and Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489.

[11] [2006] VCAT 2168.

[12] [2007] VCAT 1297.

[13] A decision of Deputy President Gibson and Senior Member Baird, citation at footnote 6.

[14] This appears to be an attempt to comply with the maximum lot area requirement of the schedule to the zone.

[15] [2014] VCAT 600, albeit in the context of a proposed supermarket facility which raised more substantial issues of strategic planning for the centre in question.