* Internal layout and site plans for the accommodation units in Casuarina Drive, including their associated car parking areas.

* The internal layout of 41 Trent Jones Drive, including a description of the activities conducted in all rooms.

* The location and dimensions of the existing business identification sign on the land.

2. The internal layout and use of the buildings and the layout of car parking areas as shown on the endorsed plans must not be altered except with the written consent of the Responsible Authority.

3. Except with the written consent of the Responsible Authority conferences must be limited to no more than 30 delegates at any one time.

4. The conference accommodation units in Casuarina Drive must not be used for conference meetings, workshops, communal dining or the like.

5. Alcohol sales may only take place at 41 Trent Jones Drive.

6. Within one month of the date of this permit a management plan, to the satisfaction of the Responsible Authority, must be submitted to the Responsible Authority. The plan must set out management practices to:

(a) ensure that persons accommodated in Casuarina Drive and attending conferences or dining at 41 Trent Jones Drive are provided with a bus shuttle service to reduce the need for private vehicle use to access 41 Trent Jones Drive.

(b) discourage delegates and guests from short cutting across the 11th Fairway between Trent Jones Drive and Casuarina Drive.

(c) ensure that vehicles under the control of the operator of the use and the operator's staff do not park on Trent Jones Drive.

The use must operate in accordance with the management plan or any amended version approved in writing by the Responsible Authority.

7. The advertising sign must be located wholly within the boundaries of the land.

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

9. The areas shown on the endorsed plans for car parking must be made available for such use at all times and must not be used for any other purpose.

10. The activities conducted at the premises must not cause any nuisance or annoyance to persons beyond the land to the satisfaction of the Responsible Authority.

11. Sound levels emanating from the land must not exceed those required to be met under State Environment Protection Policy Nos. N-1 (Control of Noise from Commerce, Industry and Trade), and N-2 (Control of Music Noise from Public Premises).

_________________________ __________________

For the Applicant for Review The Club Cape Schanck Resort Company Ltd:

Mr A. Hooper QC and Mr G. Peake of Counsel instructed by Moores, Solicitors

Mr J Rantino & Ms L Glanville, Maddock Lonie & Chisholm

For the Applicant The Grange Group Conference Centres Pty Ltd:

Mr S. Morris QC and Mr A. Finanzio of Counsel instructed by William Abbott & Associates, Solicitors

Witnesses: Albert George Armstrong, Company Director

Christian Pierre Ciastkowski, Chief Executive Officer

Mr I McEachern of Counsel instructed by Moustafa & Associates, Solicitors

1. Application 1999/019322 is an application by The Club Cape Schanck Resort Company Ltd (TCCSR) seeking an enforcement order against The Grange Group of Conference Centres Pty Ltd (The Grange) the occupier and Riversand Pty Ltd the owner of 41 Trent Jones Drive, Cape Schanck.

2. TCCSR alleges the use of the land for the purpose of a conference centre, convention centre or guest house by The Grange is prohibited by the planning scheme and the expansion of the use onto adjoining land results in damage to and prejudices the continued use of the overall development in accordance with the development plan and the viability of the golf course owned by TCCSR.

3. Application 1999/065927 is an application by The Grange Group of Conference Centres Pty Ltd seeking review of the failure of the Mornington Peninsula Shire Council to grant a permit to use the land and existing building at 41 Trent Jones Drive, Cape Schanck for the purposes of a function centre, sale and consumption of alcohol and accommodation with associated signage.

4. At the commencement of the hearing Mr Hooper QC on behalf of TCCSR and Mr Morris QC on behalf of the Grange both sought to amend their applications.

5. Mr Hooper QC sought to amend the application for an enforcement order to include Lots 201-217 PS 416668U in Casuarina Drive comprising five vacant lots and 12 dwellings which were alleged to be being used for conferences.

6. Mr Morris QC sought to amend the application for permit to include Lots 206-217 in Casuarina Drive, containing the already constructed dwellings, and for these to be used to accommodate persons engaged in conferencing.

7. The Tribunal granted both applications for amendment.

8. Later in the proceedings Mr Morris QC sought and was granted leave to substitute a different first floor plan from that which had accompanied the application for permit. This plan showed a conference room where previously there had been two bedrooms. He also asked that the description of the proposed use be amended to read; "a residential building and conference centre" in substitution for the words "function centre". We so amended the application.

9. The subject land is situated within the Cape Schanck Tourist Resort Development established by Amendment L182 to the former Flinders Planning Scheme in 1986. The land at 41 Trent Jones Drive is located on the eastern side of Trent Jones Drive, between the Cape Schanck Golf Club and the National Golf Club. A multi-level building occupies the land. This building was constructed in 1994 as a "resort home" and for a number of years was operated as a guest house called "The Lodge". It has a site area of 3630 sq m with a sealed car park for 14 vehicles. The main building now comprises a single conference room on the upper level (being originally two bedrooms), with a lounge, bar, kitchen and dining facilities on the ground level. A games room is at the lower ground level together with nine double bedrooms each with individual ensuites.

10. In 1998 the property was sold to Riversand Pty Ltd and in turn leased to The Grange who commenced operating the centre as a conference centre.

11. Casuarina Drive lies to the east of Trent Jones Drive. These two roadways are separated by the 11th Fairway of the Cape Schanck Golf Club owned by TCCSR. The National Golf Club lies to the west and north of Trent Jones Drive.

12. Twelve of 17 residential units have been constructed on Lots 201-217 in Casuarina Drive. These lots are located on the east side of Casuarina Drive adjacent to the 15th Fairway. The lots are owned by various individuals and companies, including persons with a controlling interest in The Grange. All are being leased to The Grange to provide additional accommodation, on occasion, supplementing conferencing space. The lease agreements do not prevent them from being leased to persons not associated with a conference.

13. There is no direct road connection between The Grange and the Casuarina Drive units. Persons must travel approximately 2.8km by road - almost leaving the resort - to move between the two places. However, the distance between the two, across the 11th Fairway, is only in the order of 150m.

14. Within the resort TCCSR also owns and operates the Club Cape Schanck Resort a conference centre with condominium style accommodation, known as The Terraces and operated by Shearwater Resort Management Pty Ltd. The conference facilities, as well as bars and bistros are co-located with the golf club on the eastern side of Trent Jones Drive. The more recently constructed accommodation units are situated opposite the golf club on the west side of Trent Jones Drive. Until these units were constructed the operators of the resort made various arrangements to use "condominium" units, such as those in Casuarina Drive, to accommodate persons associated with conferences being held at the resort.

15. The land is within the Rural Zone (Clause 35.01) of the Mornington Peninsula Planning Scheme and is subject to the following overlay controls;

* Environmental Significance Overlay (Clause 42.01)

16. Within the Rural Zone use of land for accommodation (other than dwellings on lots of more than 40 ha) requires a permit.

17. The particular provisions clauses relating to Specific Sites and Exclusions (Clause 52.03) and Licensed Premises (Clause 52.27) are also relevant.

18. At the time of hearing Clause 52.03 provided in its entirety:

To recognise specific controls designed to achieve a particular land use and development outcome existing on the approval date.

To provide in extraordinary circumstances specific controls designed to achieve a particular land use and development outcome which is consistent with a major issue of policy and is necessary to achieve or develop the planning objectives of Victoria.

Land identified in the schedule to this clause may be used and developed in accordance with the specific controls contained in the incorporated document corresponding to that land. The specific controls may exclude other controls in this scheme.

The specific controls contained in an incorporated document identified in the schedule to this clause will expire if one of the following circumstances applies:

The development and use is not started within two years of the approval

The development is not completed within one year of the date of commencement of works or another date specified in the incorporated document.

The responsible authority may extend the periods referred to if a request is made in writing before the expiry date or within three months afterwards.

Upon expiry of the specific controls, the land may be used and developed only in accordance with the provisions of this scheme."

19. Since the hearing Clause 52.03 has been amended on 17 August 2000 and 21 March 2001. The amendment of 17 August 2000 added additional words under "Use or development" and the 21 March 2001 amendment deleted the words under the heading "Purpose"; "which is consistent with a major issue of policy and is necessary to achieve or develop the planning objectives of Victoria." The Tribunal is required to make its determination on the basis of the planning scheme as it stands at the time of its determination. We are therefore required to consider the matter under Clause 52.03 as amended.

20. Clause 52.03 now provides under the heading "Use or development" that:

"Land identified in the schedule to this clause may be used and developed in accordance with the specific controls contained in the incorporated document corresponding to that land. The specific controls may:

* allow the land to be used or developed in a manner that would otherwise be prohibited or restricted;

* prohibit or restrict the use or development of the land beyond the controls that may otherwise apply;

21. The schedule to Clause 52.03 indicates that land at Boneo Road, Cape Schanck is the subject of an incorporated document entitled "The National Golf Course and Cape Schanck Resort Development, April 1999"(Schedule 5). This document is almost identical to the site specific control for the former Cape Schanck Hinterland Zone in Schedule IV of Chapter 2 of the former Flinders Planning Scheme which enabled the establishment of the development in 1986.

"The use and development approved by this schedule includes the following elements:

s A resort hotel and convention centre with a capacity not exceeding 104 bedroom modules and a convention facility capable of handling approximately 250 delegates at any one time.

s Not more than 210 resort homes and 44 condominium units.

s Twelve (12), two bedroom residential units for the accommodation of national golf club members and guests.

s Associated car parking, access, utility services, golf practice, recreation and landscaped garden areas, and maintenance."[Tribunal underlining]

23. Schedule 5 sets out a series of conditions which the use and development of the land is subject to, including an endorsed land use plan that forms part of the incorporated document and an overall development plan which was approved by the Council in 1985. The overall development plan comprised an existing conditions plan, a landscape master plan, a land use plan and a descriptive document. The Council considered a subsequent development plan in 1994.

24. TCCSR alleges that the land and surrounding land may only be used in accordance with Schedule 5. It alleges that the use of the subject land for the purpose of a conference centre, convention centre, guest house or similar use is prohibited because a conference centre and a convention centre with accommodation already exist and there is no provision within the Schedule for two such facilities. It further alleges that the use of the units in Casuarina Drive for conferences is also prohibited.

25. TCCSR further alleges that the customers and staff of the Grange trespass on the Cape Schanck Golf Course by walking or driving across the 11th Fairway in order to pass between the units in Casuarina Drive and The Grange. TCCSR is opposed to this due to the risk of being sued by persons who are struck by golf balls or maintenance and recreation vehicles.

26. The Grange commenced operation as a conference centre in 1998, with no formal planning approval being granted. Following the commencement of enforcement proceedings in this Tribunal, an application was made for a planning permit. The Responsible Authority received the application on 11 May 1999. The subject application for review against failure to determine within the prescribed period, was lodged with the Tribunal on 6 August 1999.

27. The application for permit, as amended, seeks approval to use the land at 41 Trent Jones Drive for the purposes of a residential building and conference centre and for the sale and consumption of liquor on those premises as well as for the display of a business identification sign. The application also seeks approval to use Lots 206-217 Casuarina Drive for accommodation associated with the conference centre.

28. In a report accompanying the application for permit Mr Rodda described the proposal as follows:

"The proposal is for the use of the former Club Lodge as a `Conference Centre' (Function Centre), with accommodation and the sale and consumption of liquor.

The entry to the building from the south is maintained, whilst the existing living areas will provide the conference facilities. The main conference room is located on the upper floor, with the lounge, bar, kitchen and dining facilities on the main level. A games room is at the lower level and the nine double bedrooms and attached ensuites, will be used as guest suites.

The carport and external spaces provide on-site parking for 14 car spaces. An office, storerooms, laundry and other facilities are also illustrated on the development plans.

The proposal is to be operated by the Grange Group of Conference Centres Pty Ltd. The `Grange Group' is an experienced operator of conference facilities within regional Victoria, and this facility will complement other establishments at Ballarat, Hepburn Springs and Warburton.

We have been advised that the facility will accommodate a maximum of 30 persons and that the average conference attendance will be between 6 - 10 persons. Similarly, the average duration of each conference is 2 days (1 night) and a total of 2 - 4 conferences are expected to be held each week. These figures equate approximately 1600 bed nights per year.

When the number of attendees exceed the available accommodation within the building, nearby off-site accommodation will be utilised.

A full-time manager, 2 office employees, a chef and apprentice chef will run the facility. The staff will rotate on shifts and casual staff will manage housekeeping duties.

Signage at the entry point to the site is proposed.

It is proposed to sell and consume liquor on the premises. An `On Premises Licence' will be sought under the new Liquor Reform Act."

29. Following the amendment to include lots 206-217 Casuarina Drive, it is also proposed to use these units as supplementary accommodation for delegates as the need arises. This would include using living and dining areas within the larger units as meeting or `break out' rooms

30. The Development Approvals Committee of the Responsible Authority considered the application on 3 November 1999. The officer's recommendation was that the application be supported subject to conditions. However, a supplementary report of the same date, from the Director - Planning and Environment, made the following recommendation:

"That Council advise the Applicant that, having regard to Clause 52.03 and Schedule 5 of the Mornington Peninsula Planning Scheme, council is required to reject an application for planning approval to utilise premises at 41 Trent Jones Drive Cape Schanck as a Conference Centre."

32. The principal questions to be decided in these applications are:

* If not is the proposal justified on its planning merits?

33. As the question of whether the proposed conference centre use is prohibited raises a question of law, this question has been decided by the presiding member who is legally qualified.

34. The area of land covered by Schedule 5 is large and has been subdivided into various separately owned parcels. The Tribunal is required to consider whether The Grange, which was established as a resort home and the units in Casuarina Drive, which were established as condominiums, all within the larger area of an integrated tourist resort, can be used as a conference centre with associated accommodation, as well as whether the units in Casuarina Drive can be used from time to time, as a smaller conference venue in their own right.

35. Schedule 5 allows "a resort hotel and convention centre with 104 bedroom units and convention facility" for 250 delegates. There is no mention within the schedule of a "conference centre". Mr Hooper QC and the Responsible Authority submitted that the centre operated by TCCSR is the only centre permitted on the land. Mr Morris QC submitted that the reference in Schedule 5 is to a convention centre and that this differs from a conference centre.

36. Distinctions were drawn between a convention centre and conference centre. Mr Balcam referred the Tribunal to extracts from a book titled "Conference Center Planning and Design. A Guide for Architects, Designers, Meeting Planners and Facility Managers", by Richard H. Penner. This draws a distinction between smaller executive retreats and larger conference centres. As well the Tribunal was referred to a number of definitions:

Conference center "A property that caters to small business meetings, corporate retreats, and conferences. Generally considered smaller in size and more personable in nature than a convention property." [Garry Vallen/Jerome Vallen University of Nevada, Las Vegas, Australian International Hotel School]

Convention - "(1) business or professional meeting, usually of large numbers of people. The term congress is a common term outside the United States; (2) an international agreement on a specific matter, especially the outcome of a meeting." [Martha Sanbey de Santo Group Travel 408]

Convention - "State, National or International meeting of 100 or more delegates for corporate, government and association bodies which involves the use of commercial accommodation for a minimum of one night. The event for less than 100 delegates is defined as a small meeting." [Melbourne Marketing Convention Bureau]

CONVENTION CENTRE means "any BUILDING or group of BUILDINGS intended for USE by the members of a club or institution for the purpose of a convention, meeting or like USE and may include residential UNITS associated with the CENTRE and be available to any club, institution or groups of persons for hire." [former Flinders Planning Scheme]

37. It was Mr Balcam's evidence that The Grange operated as a small boutique conference facility targeting the top end of the conference market, including corporate executives of large corporations and management teams who wish to workshop in small groups. He produced a list of organisations that have visited the premises. Ms Jagoe and Ms Conn both gave details of conferences they had arranged with The Grange for approximately 20 delegates.

38. Mr Balcam, Mr Ciastkowski and Mr Shuey all agreed that a convention centre accommodated 100 plus delegates whereas a conference centre accommodated a smaller number of delegates. When referring to the size of the convention/conference they all referred to the number of delegates that could be accommodated in the actual conference venue and not to the size of the venue in terms of overnight accommodation.

39. Mr Balcam considered that the Cumberland at Lorne and The Grange's own centre Blythewood at Ballarat could accommodate 100 plus delegates in its conference facilities and could be considered convention centres however both these places could not accommodate 100 plus delegates for single overnight accommodation and it was not uncommon that each venue would refer delegates to other nearby venues for overnight accommodation.

40. Mr Shuey indicated TCCSR could certainly accommodate 250 delegates for a conference although he considered they did not provide for the convention market. Mr Shuey acknowledged that TCCSR had initially used other units within the Resort to accommodate overflow delegates as well as using the facilities of The Grange for accommodation. This he stated had changed when "The Terraces" units had been built, although there appeared to have been accommodation of Shearwater overflow delegates in The Grange relatively recently. Mr Balcam also acknowledged that they had used other units within the resort area for overflow accommodation and were now intending to use only the Casuarina Drive units for such purpose as the standard of the other units could not be relied upon. Both Ms Jagoe and Ms Conn indicated that overflow accommodation for delegates attending the conferences they had both organised were found at TCCSR's Shearwater conference centre.

41. Apart from the definitions provided by the parties I have considered the definitions of "convention" and "conference" in both the Oxford and Macquarie Dictionaries. I consider there is little difference. Both relate to the assembly of persons for a meeting or consultation for some common object or particular purpose. Within the industry a distinction appears to be made on the basis of the number of delegates. There does not appear to be any distinction made between the two within planning parlance. Conference centre is not defined within the current planning scheme but is included within place of assembly. If the definition in the former Flinders Planning scheme of "convention centre" is considered this does not appear to in any way differ from the ordinary meaning of conference centre.

42. Furthermore, while the industry differentiates between convention and conference, this appears to be based primarily on the number of delegates. There does not appear to be any material differentiation in the way business is conducted. There is therefore no difference in the use of the term convention within Schedule 5 compared to the common usage of the word conference. What is permitted in the schedule is a facility for 250 delegates which the industry would consider to be the number of delegates at a convention. Whilst there is no reference within the schedule to a conference centre I consider that this is no different in planning terms to a convention facility. What is identified is the maximum number of persons attending the centre which, in planning terms could have implications for matters such as car parking, traffic and accommodation.

43. The whole of the land referred to in Schedule 5 is also within the Rural Zone of the Mornington Peninsula Planning Scheme. Within this zone a function centre/conference centre with accommodation is a Section 2 permit required use. If there was no Schedule 5 the Tribunal would quite clearly have a discretion to consider whether a permit should issue. There is no reference within the planning scheme to the numbers of persons. It would therefore be open to consider a centre to accommodate 250 delegates or a centre to accommodate 30 delegates. Of course, issues such as traffic, parking and the location of accommodation would also be relevant.

44. It was submitted by the Responsible Authority and relied on by Mr Hooper QC that Schedule 5 of Clause 52.03 narrows the discretion contained in the zone controls with the result that any use or development of the land is limited to that contemplated by Schedule 5 and the land use and overall development plans. In this respect, they submitted, the provisions of Schedule 5 must be applied so as to override the more general Rural Zone controls as, to do otherwise, would make Clause 52.03 redundant.

45. Mr Morris QC put a contrary view, that Clause 52.03 of the planning scheme operates in addition to the Rural Zone controls in Clause 35.01, there being no express statement in that clause to suggest that the particular provisions operate to the exclusion of Clause 35.01. Clause 51 states:

The requirements of these particular provisions apply to the specified categories of use and development and other matters in addition to any provisions which apply due to any other provision of this scheme."

46. I consider Clause 51 of the planning scheme clearly indicates that Clause 52.03 does not stand alone but is to be read in conjunction with Clause 35.01, the Rural Zone provisions. If it is then considered that there is no real difference between a convention centre and a conference centre and that it is merely for the convenience of distinguishing the number of delegates expected to attend, then is the use of The Grange as a conference centre for up to 30 delegates prohibited by virtue of Schedule 5?

47. The use of the word "may" in Clause 52.03, referring to the way land can be used or developed in accordance with specific controls contained in an incorporated document, does not result in the conclusion that the land can only be used in accordance with those specific controls. The use of the word "may" in this context is used to express the possibility of or gives permission contingent on taking up the conditions expressed. It gives an ability or power to do what is specified.

48. Whilst the first two dot points of Clause 52.03, inserted on 17 August 2000 under the use and development sub-heading, clarifies what the specific controls may do, the third dot point is considered to be the relevant point in this matter. This states that the specific controls may exclude other controls in this scheme. The use of the word "may" suggests that a choice can be made. Other controls may be excluded or they may not. There is nothing within the schedule that states either expressly or by implication that the provisions of the Rural Zone, which provide for the land to be used for various purposes, subject to a permit (and I might add for various other purposes, as of right) are to be excluded. It is submitted by TCCSR that there is no need to specifically exclude the Rural Zone controls at Clause 35.01 because the implementation of Schedule 5 has the effect of excluding Clause 35.01.

49. The schedule does not state or imply that other as of right uses or uses subject to permit requirements under the zone provisions are specifically excluded and can therefore never obtain a planning permit. Mr Morris QC submitted that those land uses that have been approved by the schedule and which rely upon the schedule for their legitimacy shall be generally in accordance with the approved land use plan and shall be operated as an integrated development (Condition 3 of Schedule 5). The use of the words "must" or "shall" within the schedule cannot, he stated, in the context of these provisions be construed as limiting the establishment of otherwise lawful land uses, but only places conditions on those land uses actually approved by the schedule.

50. Mr Hooper QC referred to the Tribunal's decision in Shearwater Resort Management Pty Ltd v Mornington Peninsula Shire Council and Champagne Views Pty Ltd [1998/088529] in which the Tribunal in dealing with the same area of land and Schedule 5 concluded that as the incorporated document (Schedule 5) did not expressly exclude the ordinary planning controls, then the ordinary planning controls do apply to subdivision but the proposed subdivision was prohibited by Clause 35.01-4 of the scheme as the proposed lot size was not of the size specified under the schedule to the clause and further the subdivision was prohibited because Schedule 5 did not permit further subdivision. Whilst considering that express exclusion would be contemplated it was the members' view that the incorporated document (Schedule 5) does not impliedly exclude the ordinary subdivision controls.

51. The Tribunal has recently dealt with the application of Clause 52.03 in relation to the Sewerage Treatment Plant located on the land in Schedule 5. In The Club Cape Schanck Resort Co Ltd v Mornington Peninsula Shire Council (1998/053772, 1999/064943 unreported) the Tribunal concluded at paragraphs 98 and 99 of its decision:

"It is the Tribunal's view that the meaning of exclusion in Clause 52.03 includes implied as well as express exclusion. The Tribunal is of this view after consideration of the purpose of Clause 52.03, which is "to recognise specific controls designed to achieve a particular land use and development outcome existing on the approval date". There is a strong inference from the wording of Clauses 50 and 69 as well as Clause 28 in Schedule 5 and Clauses 6.1 and 11.2 of the incorporated Development Plan that there is to be a single STP to service all the dwellings and public facilities which form part of the integrated resort development allowed by the schedule, this includes service of the resort golf course and hotel site owned by TCCSR.

Whilst the Tribunal is of the view that TCCSR could apply for a permit for a STP as there is no express exclusion prohibiting the establishment of more than one STP on the land when Schedule 5 is read in the context of the purpose of Clause 52.03 in which Schedule 5 sits within the planning scheme there is a clear implication that there is to be a single STP to service the land."

52. The land identified in the schedule "may" be used or developed in accordance with the specific controls. The controls have wide implication. If required they can override provisions of the general controls. That is, the controls may allow the land to be used or developed in a manner that would otherwise be prohibited or restricted, could prohibit or restrict beyond the controls that may otherwise apply and could exclude any other control. A conference centre is not prohibited. There is no provision within the schedule that prohibits or restricts the use of the land for a conference centre beyond what would otherwise apply and there has been no exclusion within the schedule either expressly or by implication of any other control.

53. With respect to Clause 52.03 Mr Hooper QC submitted there was no need to exclude the other controls, for example Clause 35.01 of the planning scheme, because the schedule overrides these other provisions as they are inconsistent with the land use plan and the overall development plan. As the use of the land is governed by Conditions 1 and 2 in Schedule 5 and the land use and overall development plans do not show the use of this land as a conference centre then the conditions cannot be satisfied and the only means of approval of what The Grange is proposing is by way of a planning scheme amendment. As the whole of the land identified in the schedule is dependent for its lawfulness on clause 52.03, to issue a permit would be to breach the planning scheme.

"1. The use and development provided for under this schedule shall generally be in accordance with the endorsed land use plan which is attached to and forms part of this schedule.

2. The subject land shall not be used or developed until an overall development plan generally in accordance with the land use plan and complying with the following requirements has been approved to the satisfaction of the responsible authority.

The overall development plan shall include, to the satisfaction of the responsible authority, the location and description of all use and development proposed and in particular:

(a) A description of the proposed buildings and works and staging of the establishment of the approved use and development and the projected timing for each stage."

55. The schedule, Mr Hooper QC submitted, does not provide any other means or mechanism for approval or authorisation of any other use of the land other than that identified in the schedule. There is, he submitted, no permit mechanism within the schedule and therefore there could be no permit application. In this respect therefore as the proposed use by The Grange is not provided for in the schedule it is prohibited.

56. Whilst Schedule 5 allows in Condition 4 variation of the overall development plan provided it is to the satisfaction of the Responsible Authority the overall development plan must it was submitted be generally in accordance with the land use plan, this in the view of the Responsible Authority limits the extent to which changes can be made without a planning scheme amendment. In this respect Mr Hooper QC and the Responsible Authority referred the Tribunal to the decision in Patterson Village Services Ltd & Ors v City of Kingston 16 AATR 336 at page 342 and 343:

"The Concept Plan in this case was part of the Planning Scheme itself, ... It is the Tribunal's opinion that the Concept Plan must be given some meaning and that therefore while some variation in ... land use should be possible and could reasonably be held to be `generally in accordance with the Concept Plan'. The scope of such variation should not extend to ... the introduction of new use and development which are not indicated on the Concept Plan in any form whatsoever.

in the Tribunal's mind the use and development of the site in accordance with the application before the Tribunal would be inconsistent with the Concept Plan, and therefore unlawful.

57. The schedule specifically permits a number of uses. These uses may or may not be permitted either as of right, by permit or be prohibited under the Rural zone. I accept that the uses permitted under the schedule must comply with the conditions in the schedule. I do not accept Mr Hooper QC's submission that because what is proposed by The Grange is not specified in the scheme or shown on the land use and overall development plans, that it is prohibited and could only be authorised via a planning scheme amendment.

58. Whilst it is stated that the overall development plan must be generally in accordance with the land use plan. The land use plan attached to Schedule 5 is very general and over time many of the permitted uses have been established otherwise than in accordance with the land use plan or the overall development plan. For example TCCSR's own conference facility does not comply with the siting description in the schedule.

59. Condition 4 of the Schedule enables variation to the overall development plan to the satisfaction of the responsible authority. This condition is not dissimilar to the application in the planning scheme of Clause 43.04 Development Plan Overlay where the future use and development of an area may be identified on a development plan. Clause 43.04-3 requires the development plan to describe particular matters listed, it also states that the development plan may be amended to the satisfaction of the responsible authority. There is no requirement that a change to the overall development plan must be by way of a planning scheme amendment. If therefore a new use is permitted under the Rural zone this would no doubt be a sufficient variation under Condition 4.

60. Mr Hooper QC submitted that the authorised use of 41 Trent Jones Drive is as a "resort home" or dwelling within a resort area and this is not what it is being used for. The subsequent Development Plan shows the site as a resort house lot. Therefore, he stated, use of the land for purposes other than as a resort home is illegal. The use of the dwellings in Casuarina Drive and the use of the Club Lodge is illegal. They are not being used as dwellings. If one looks at the real and substantial purpose of the use it is that of holding conferences and accommodating conference delegates, not as dwellings.

61. Mr Morris QC submitted the Club Lodge was constructed as a `resort home' and the Casuarina Drive Units as `condominiums', these developments were done in accordance with the approval mechanism set out in the schedule and as such can be lawfully used for these purposes. This use is specifically approved by Schedule 5. Any use of these dwellings for purposes ancillary to that accommodation use is allowed without specific or separate planning approval, otherwise, he submitted Clause 64 states:

"If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme."

62. The question of ancillary use is one of fact and degree: Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157; Lizzio v Ryde Municipal Council (1983) 57 ALJR 582; Cascone v City of Whittlesea (1993) 11 AATR 175 at 190 per Ashley J.

63. Mr Morris QC referred to the two circumstances of ancillary use:

"(a) ancillary activity quite different to the activities constituting the primary use of the property but are a necessary adjunct to the primary use, there being a close association between the ancillary and principal uses; and

(b) activities which grow out of or develop from the primary use and are intended to enhance it - the scale and magnitude of the use relevant consideration in determining the matter of fact whether the use is ancillary or not."

64. Mr Morris QC submitted the occasional use of the Casuarina Drive condominium units for informal meetings is no different to any other gathering that could occur in a holiday house, it is only the subject matter being discussed that is different. These units he stated are used infrequently for meetings, their primary purpose is accommodation. In the circumstances, he stated, there is no planning justification for drawing a distinction in land use terms between the accommodation component of the use and the conferencing component given the scale and frequency.

65. The Council's decision to retain what was Schedule IV in the former Flinders Planning Scheme and to transfer it into the new planning scheme as a schedule to Clause 52.03 appears to have been undertaken on the basis that the uses referred to in the site specific schedule were the only uses permitted. This may have been so under the former planning scheme, but the Council does not appear to have consider the full implication of Clause 52.03. If, as it appears from the arguments put, it had desired the uses specified in Schedule 5 to be the only uses permitted for this land, then a redraft of the schedule was required to exclude the application of the other controls. This was not done.

66. To override any as of right or permitted uses under Clause 35.01, Schedule 5 must either expressly or by implication from the wording of the schedule exclude such uses. Clause 52.03 gives power to allow, restrict or exclude. There is no such express or implied exclusion. What is allowed under the schedule, namely a resort hotel with a convention facility for 250 delegates, does not expressly or impliedly exclude another convention centre or a conference centre nor do the conditions placed on the uses allowed under the schedule impose any express or implied exclusion on the land being used for either an as of right or discretionary use under the zone controls. Although 41 Trent Jones Drive is shown as a "resort home" on the development plan there is no bar within the schedule to allowing another discretionary use to be considered.

67. The overall development plan can be varied if required to give consistency. Its existence is no bar to Clause 35.01 being invoked. Therefore there would be no planning scheme breach.

68. The use of The Grange as a conference centre is not ancillary to the use of the land as a "resort home", although it is providing a form of accommodation. What is being proposed here is a conference facility with accommodation, not accommodation with conferencing. Delegates attending the conference facility may not necessarily be accommodated on the site. Accordingly the conference facility is the dominant use of the site. The use of the condominium units for small meetings or mini conferences is also a separate use to their use for accommodation. As with The Grange, delegates attending such smaller size conferences or meetings might not be accommodated within the particular unit. It does not meet either of the two circumstances of ancillary use.

69. It is open for an application to be made for a permit for a conference centre on the subject land. There is no bar for the Tribunal to consider the application on its merits.

70. Given the finding that a permit may be granted to use these rural zoned lots for the Section 2 purposes of a residential building, a conference centre and associated accommodation, it follows that we must now decide whether a permit should issue.

71. This application for permit also seeks approval for the on-premises sale and consumption of liquor at 41 Trent Jones Drive and the display of a business identification sign. The latter is already being displayed. It would be fair to say that the questions of whether a permit should issue for the sale and consumption of liquor and for the display of the sign were not in contest. Rather the disagreements lay with the proposed use of these premises.

72. The decision guidelines at Clause 65 of the scheme sets out matters which must be taken into consideration, as appropriate, when deciding about any application for permit. Of most relevance to this application are the State and Local Planning Policy Frameworks, the orderly planning of the area, any effect on the amenity of the area and the matters set out at Section 60 of the Act - which include any significant economic effect of the use. We also accept that Schedule 5 of Clause 52.03 has relevance. We agree with Mr Rodda that it can serve as a guideline for decision-making. It sets a land use context which is relevant when exercising our discretion about other possible uses.

73. Mr Borelli at page 9 of his witness statement provided a useful summary of the relevant State and local planning policies. We find it helpful to set this out in full.

State planning policies recognise the environmental significance of the Mornington Peninsula and its coastal landscapes in particular. They seek to ensure that planning decisions assist in the protection of important open landscapes an native vegetation (Clause 14.02-2) and provide clear direction for the future sustainable use of the coast for recreation, conservation, tourism, commerce and similar uses in appropriate areas (Clause 15.08-2).

Tourism policies aim to encourage a range of well designed and sited tourist facilities, including integrated resorts. Facilities should have access to suitable transport and be compatible with and build upon the assets of surrounding ... rural activities and ... natural attractions (Clause 17.04-2).

These policies are broad and do not give clear guidance as to the suitability of the proposal. Nonetheless, they do suggest that the responsible authority should consider whether the use is likely to contribute to the sustainability of the coastal environment and the integrated resort facilities established at Cape Schanck.

The Local Planning Policy Framework is intended to be consistent with State Policy and addresses itself to more specific local issues. Clause 21 of Council's new format Planning Scheme contains its Municipal Strategic Statement (MSS), while its Local Policies are set out at Clause 22.

Outstanding natural landforms, rural landscapes, seascapes, coastlines and beaches are considered one of the Peininsula's key strengths. These areas are suitable for a wide range of recreational activities, particularly unstructured outdoor pursuits ... a key challenge is to ensure that land use and development does not lead to incremental change that devalues the Peninsula as a recreational area.

In this sense, sustainable development is seen as that which supports the inherent values of the Peninsula and provides opportunities for access, understanding and enjoyment rather than introducing elements that are disruptive, intrusive or out of character.

Clause 21.08 of the MSS addresses foreshores and coastal areas and recognises as key issues that these areas are a major tourism and recreational resource but warns that co-ordinated management is critical to avoiding over use which would otherwise result in environmental degradation, loss of natural and cultural values and declining community benefit.

With respect to rural areas, Clause 21.09 of the MSS states that "it is necessary to maintain a development density and land use pattern that is compatible with protecting environmental systems". Strategies to maintain and enhance the natural values of the peninsula are to be implemented by "use of the Rural Zone to encourage an integrated approach to land management ...".

Clause 22.07 addresses commercial and industrial uses in rural areas and Clause 22.08 address integrated recreational and residential development in rural areas. In essence, these policies support additional short-term accommodation in rural areas but only where they demonstrate a direct link to rural activities to the peninsula's role as an area providing opportunities for outdoor and unstructured recreation. Applications are to be "compatible and integrated with the primary land use on the site and that of surrounding land" and "Proposals for commercial development should be sited on lots with at least the minimum area required for the zone unless it is clearly demonstrated that the proposed use will have no significant negative impact on the landscape character of the area or on the amenity of adjoining land owners."

These policies also seek to avoid car parking which impacts on the landscape character of the site and surrounding area, avoid expectations of linear strip development along tourist routes, control building and subdivision densities in areas of scenic landscape value and to avoid the encroachment of commercial buildings and works on the rural landscape.

The environs of the subject site comprise a rural, coastal environment of sensitivity and high scenic and landscape value. This is emphasised by the overlays which apply to the land. The resort golf course and native coastal vegetation are key features which local planning policies seek to protect by limiting the intensity of development and associated activity and by encouraging an integrated and co-ordinated approach to land management."

74. The subject application for permit relies on the use of existing buildings. Accordingly, the emphasis within the policy framework and in the overlay controls referring to new development being compatible with the significant scenic and environmental values of this coastal environment have little relevance. An exception, as we will discuss later, is in relation to the question of car parking and more particularly the prospect of overflow car parking within the road reserve.

75. Of greater relevance is the policy guidance stressing the importance of recreational and associated uses being planned and operated in an "integrated" way and in a manner whereby any residential and commercial uses complement the recreational or tourist facilities which in the large part owe their existence to the rural or natural features and environmental significance of this part of the Mornington Peninsula. The golf courses at Cape Schanck are two such facilities. The development of an integrated tourist resort was clearly intended to take advantage of what we might describe as the symbiotic relationship between golf courses and complementary commercial and residential facilities.

76. Notwithstanding the fact that much of the resort has been subdivided and we think in some instances rather questionably subdivided, the convention centre wrongly located, the hotel hardly commenced - other than in the form of condominiums - and the other so called condominiums developed in places other than as originally intended, we think it open for us to find that this resort continues to operate and has the potential to operate in a symbiotic way, with the golf courses and coastal location being the principal draw card. It may be trite to say however that it "takes two to tango" and while the operators of individual components adopt non-negotiable positions, then however great the potential for integration or synergy, the reality may be otherwise.

77. It was suggested to us that a more integrated outcome would result if there was no second conference facility within this resort - presumably because there would be no other commercial interest with which to integrate or perhaps more correctly to co-operate with.

78. While it might be correct to say that with no other commercial operator TCCSR can operate as a single entity and a single entity must by definition be "integrated"; we have not been persuaded that the addition of a separately operated, smaller scale or "boutique" conference facility on this resort must be ruled out as being incapable of being regarded as an integrated component of the resort as a whole.

79. The evidence demonstrated that The Grange provides a facility which, for the most part, is small in scale and to a great extent exclusive, given that delegates have The Grange premises entirely to themselves. For example at the Shearwater Resort the mean conference size is 27.4 delegates compared to The Grange at 11.9 delegates. The median conference size at Shearwater is 18 compared to The Grange at 11. Even Mr Shuey under cross-examination conceded that this difference in size was "significant". We find the nature of the conferencing offered by The Grange is not a service which the Shearwater Resort can mirror, notwithstanding the ability, as described by Mr Shuey, to combine accommodation modules at The Terraces and provide smaller meeting rooms and even an in-room meals service. It is The Grange's relative isolation that cannot be replicated at Shearwater Resort. Such an isolated facility is nevertheless we think an entirely appropriate and indeed these days sought after component of an overall conference and/or convention facility. The original land use plan of 1985 did not provide for such an "out-station" conferencing facility. We are persuaded, however given the obvious evolution that has occurred in this industry - as evidenced by the literature provided to us and the evidence of the management personnel called by both parties - that an "out-station" centre of this size would these days be recognised as providing a useful support role in such an integrated golf and conferencing resort. It is a use which we accept can benefit from being co-located at a resort style golf course - golf being such an acknowledged "corporate" activity. Whilst clearly TCCSR would like to be in a position to operate its own exclusive out-station facility - and so be in a position to plough any profits back into its operation as a whole - this is not the only interpretation of the word integrated. We agree with Mr Rodda that integrated need not be confined to a narrow interpretation meaning operated as part of the same economic unit. In a planning sense it is open to an interpretation of being functionally compatible, able to take advantage of other facilities but at the same time complementing those facilities.

80. It was suggested also that use of The Grange as a small scale conferencing facility should be refused on the basis of the use being likely to have a significant economic effect for the Shearwater Resort which would be to the detriment of the wider community. It was put to us that TCCSR's loss of potential conferencing revenue might mean that any further development of the resort, in fulfilment of the land use plan, would not proceed meaning that the community benefit of having such a resort at Cape Schanck would be lost or squandered.

81. Whilst we accept that the evidence pointed to a degree of market overlap between the two venues, we think it also pointed to this being due in no small part to the fact that Shearwater has been slow to develop what it set out to achieve - namely a resort hotel of up to 104 bedroom modules plus 44 condominium units and a convention facility capable of handling approximately 250 delegates. The convention facility is there - albeit in the wrong place - but until the recent construction of The Terraces, with their 64 bedrooms, accommodation for delegates had to be obtained from elsewhere within the resort. This failure clearly opened up the opportunity for the subsequent chain of events resulting in condominiums rather than lower density resort homes being constructed in places where this form of accommodation was not originally envisaged. The subsequent subdivision and sale of these units for investment as tourist rather than long term accommodation must have impacted on the viability of a resort hotel. By using up some of this excess condominium accommodation we think it open for us to find that The Grange - with its exclusive, small conference focus, widens the options for further development of a hotel to support larger conferences or multiples of less exclusive conferences.

82. We are persuaded also that with the recent approval of two further golf courses - namely The Links and Moona courses - that there may be a further increase in demand for overnight accommodation such as could be provided by Shearwater. Indeed, Mr Shuey under cross-examination agreed that this was "possible".

83. To conclude on this issue we have been unable to find, based on the evidence presented to us, that the use of The Grange as a small and exclusive conference venue will have so significant an economic effect as to prevent the future development and operation of the Shearwater Club Cape Schanck Resort.

84. A further issue to be decided is whether, in orderly planning terms, it is appropriate for a small conference centre to be strung out with a distance of up to 2.8km between the main building and much of the associated accommodation, including ancillary conference facilities.

85. It was vigorously contended on behalf of TCCSR that this was an impractical layout and would very likely result (and has resulted) in persons regularly walking across the 11th Fairway. It was contended that establishing such a "desire line" ran contrary to the safe, orderly and proper use of the golf course.

86. While the concept of an integrated resort may bring with it the prospect of residents strolling around and across fairways, it was suggested by TCCSR and its witnesses that it would be a poor planning outcome to establish a regular pedestrian route at this particular location.

87. It was argued on behalf of The Grange that the issue of setting up an undesirable movement pattern could be overcome by the management providing an at call mini-bus service for delegates. Mr Rodda also suggested that the question of whether it is desirable, in a design or operations sense, for a conferencing centre to be so dispersed is more of a management matter for The Grange to consider than a planning matter to be determined by the Tribunal.

88. Our principal findings in relation to this issue are that it is not inappropriate for supplementary accommodation to be sought from elsewhere within the resort but that it would be a poor design outcome - in orderly planning terms - for The Grange to rely on the condominium units for supplementary conferencing facilities, such as break-out and meeting rooms.

89. While a shuttle bus may be useful as a means of ferrying delegates at the beginning and end of conference proceedings - including over a lunch time- we are not persuaded that there is merit in the actual conference facilities being dispersed to the same degree. We also find that to allow The Grange to, in effect, expand its facilities to include meeting rooms beyond those provided at the main building would run the risk of increasing the scale and nature of this "executive retreat" facility. It would make it less of a complementary facility and more of a competing facility within the resort.

90. To have conferencing activities taking place at the condominiums also increases the prospect of persons walking to and from the two venues via the 11th Fairway. While we accept that in an integrated resort of this nature some non-golfer access in and around the fairways must be anticipated (and the evidence pointed to permanent residents crossing the 11th and other fairways - to access the National Golf Course), we agree with TCCSR that it is a poor outcome, in site planning terms, to locate facilities in a manner that compromises the orderly use of other, equally legitimate facilities.

91. We are also not convinced that with conferencing activities split between the Casuarina and Grange venues, it would be as practicable for management to prevent delegates from following that very natural instinct of taking a short cut. In the longer term this is not a pressure which we think can be reasonably overcome by management regulations. On the other hand a shuttle bus service to access the accommodation has, we think, a better prospect of success. It is more confined to certain times of day and is likely to be more easily monitored.

92. This brings us to the next and final question to be decided. What is the prospect of cars associated with delegates housed at the condominiums, being parked on the nature strip in Trent Jones Drive?

93. The Grange provides 14 off-street car spaces. We accept and indeed it is not really in dispute, that these 14 spaces are sufficient to accommodate the cars of those delegates staying at The Grange itself plus support staff. What was of greater concern was the prospect of delegates from the Casuarina condominiums, or elsewhere, seeking to also park at the conference venue.

94. In the course of our inspection we observed approximately 14 vehicles parked on the 8.3m wide nature strip opposite the entry to The Grange car park. It was apparent however that this use was not degrading the nature strip, for example through destruction of grass or by rutting. The evidence pointed to this being, whilst not an infrequent occurrence, certainly not a regular occurrence. The evidence also pointed to the not infrequent use of the nature strip outside the golf club entrance as a spillover car parking area as well.

95. It was Mr Cooksley's suggestion, as set out in his Officer's report to Council in respect of this application, that should or could a permit issue for conferencing that such activity be limited to a maximum of 21 delegates. In his opinion this would go some way towards ensuring that the majority of vehicles generated by the activity could be accommodated, given the fact that delegates will often share a vehicle. Mr Morris opposed such a condition, suggesting as an alternative a limit of 30 delegates except with the approval of the Responsible Authority.

96. We are mindful of the policy guidance and decision guidelines which seek to ensure that developments within the areas covered by the Significant Landscape and Environmental Significance Overlay provisions do not detract from the area's landscape values. To this end we are of the view that any regular use of nature strips for car parking should not be condoned.

97. The evidence shows however that more than 90% of the conferences conducted at The Grange have been for 21 persons or less. This, taken with our finding that conferencing should not be conducted other that at the main building - so reducing the incentive for persons to drive their vehicles between venues - plus the requirement for a shuttle bus service, encourages us to find that use of the nature strip for car parking is likely to remain an infrequent occurrence. Infrequent use is not, we think, a reason to refuse a permit.

98. Accordingly we find that a permit should issue for a conference venue for 30 delegates subject to no conferencing activities being conducted within the Casuarina Drive premises and provided a regular shuttle bus service is offered between the venues. We agree with the suggestion by Mr Cooksley that a management plan addressing the issue of delegate movements between venues would be useful and we will incorporate a condition to this effect.

99. Having determined that it is open to us to consider the grant of a permit and having as a result of that consideration determined to grant a permit we do not consider that an enforcement order should be made in relation to the use of The Grange as a conference centre.

100. We have considered the use of the Casuarina Drive units and concluded that it is not inappropriate to use these units for supplementary accommodation however we do not consider that these units should be used in any way for conferencing whether as break-out or meeting rooms on a small scale. We note that the units have been used in this way on occasions and this use should cease. We have also noted that the use of the units particularly for break-out sessions or smaller meeting groups can result in more frequent use of the short cut across the 11th fairway, which should be discouraged. In the circumstances we consider that an enforcement order should issue requiring the use of the units for conferencing activities to cease. We consider such use should cease on or before 1 September 2001.

101. With respect to the movement of persons across the 11th fairway we accept that there will be some crossing of the golf course within the integrated resort. The Grange since the commencement of these applications has set in place a notification system to ensure persons attending conferences or those accommodated in the units do not use this short cut. It however presents itself as a clear track and we consider it is unreasonable to expect the management of The Grange to monitor all persons movements. With a bus service between The Grange and the units and the implementation of a management plan as part of the conditions of the permit we do not consider it necessary to issue an enforcement order with respect to the use of the short cut across the 11th Fairway. We also note that TCCSR who has instituted these proceedings citing concern at the possibility of being sued by persons struck by golf balls does not appear to have taken any steps by way of signs warning of the hazards of crossing a golf course, deletion of the track or additional tree planting to discourage persons from using this area.

102. For the above reasons application for review 1999/065927 is allowed. The Tribunal will direct the responsible authority to issue a permit to allow the use of the land at 41 Trent Jones Drive for the purpose of a residential building and conference centre and for the sale and consumption of alcohol and the display of a business identification sign and the use of Lots 206-217 PS 416668U Casuarina Drive for the purpose of accommodation associated with the conference centre.

103. Application 1999019322 is allowed in part. The enforcement order will require the use of Lots 206-217 PS 416668U for conferencing activities cease on or before 1 September 2001.

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PLANNING AND ENVIRONMENT ACT 1987

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

Lots 201-217 PS 416668U, Casuarina Drive, Cape Schanck

1. The Respondents on or before 1 September 2001 cease using Units 201-217 PS 416668U Casuarina Drive, Cape Schanck for any conferencing activities whatsoever.

2. The Applicant must serve a copy of this order on the Respondents pursuant to Section 140 Victorian Civil and Administrative Tribunal Act 1998.