Joel Fredman, Town Planner of Fredman Malina Planning

Use of the land for a dance school, including the construction of an internal mezzanine floor

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Urban Growth Zone 2 (Applied Zone: Commercial 2 Zone)

Clause 34.02-1 to use land for an Indoor recreation facility

Clause 34.02-4 to construct a building and construct or carry out works

Clauses 02, 11, 12, 13, 17, 34.02, 37.07, 52.06, 52.34, 65 and 71.02.

The land is development along with its neighbours as a series of empty concrete commercial spaces that are common in business parks throughout industrial precincts. The site has an area of 128 square metres, with a frontage of 7.9 metres to Tallis Circuit.

1. Thuliwal Transport Pty Ltd (the 'applicant') seeks to review the decision of the Wyndham City Council (the 'Council') to refuse to grant a permit for the use and development of an Indoor recreation facility (dance school) at 35B Tallis Circuit Truganina (the 'review site').
2. The Council's grounds of refusal argue that this is an inappropriate use of land that has been set aside for employment generating uses, and therefore is contrary to policy and does not constitute orderly planning. These are the only concerns identified in Council's grounds, and in the submissions filed in this proceeding.
3. I have decided to set aside the Council's decision, and direct the grant of a planning permit subject to conditions. Reasons for my decision were given orally at the conclusion of the hearing. What follows is an edited version of my oral reasons.
4. The application proposes the use of an existing warehouse 'shell' for a dance school, that will operate with a maximum of 8 students and 2 staff members at any time. The review site is located within the Sapphire Square Business Park, which forms one part of a larger employment precinct that in turn is covered by the Truganina Employment Precinct Structure Plan (TEPSP). Much of the area covered by the TEPSP is earmarked for a variety of general or heavy industrial uses. In comparison, the review site and surrounding land is set aside as Industrial Park B.
5. The Council in its submissions referred to a range of planning policy, which I have taken into account in my decision making task. Of particular note is Clause 02.03-7 of the Wyndham Planning Scheme, which provides the following policy guidance for Economic Growth and Industry.

Economic growth

Wyndham has a diverse local economy, including major industrial and logistics development in Laverton North, intensive agriculture at Werribee South, busy commercial precincts, an extensive new housing market, and a major tourism precinct. About one third of Wyndham's resident workforce is employed within the municipality meaning that two thirds leave the municipality for work.

Attracting new investment to the region is critical to the city's long-term economic future. The 925ha East Werribee Employment Precinct (EWEP) is a designated National Employment and Innovation Cluster with the potential to generate investment and expand employment opportunities.

The Wyndham A-League Stadium will provide employment, tourism and development opportunities and attract investment.

The West Growth Corridor Plan (Victorian Planning Authority, 2012) outlines significant employment nodes for future development:

• The EWEP between Werribee and Point Cook.
• South of Boundary Road between the Outer Metropolitan Ring Road and planned extension of Forsyth Road.
• The area immediately west of the Regional Rail Link between Wyndham Vale station and a potential future station at Tarneit West (Davis Road).
• The area bounded by Bulban Road, the Regional Rail Link and Outer Metropolitan Ring Transport Corridor.

Council's strategic directions for economic growth are to:

• Provide sufficient land to attract investment and generate additional jobs.
• Promote Wyndham as a place for long term business attraction and expansion.
• Create an employment corridor along the Werribee metropolitan rail line to provide jobs close to where people live.

Industry

The Laverton North and Truganina industrial precincts, located within the western industrial node, are major manufacturing and logistics hubs offering a large supply of land.

Laverton North Industrial Precinct is the largest industrial precinct in the city with a capacity for significant investment and industrial development. The Truganina Employment PSP comprises 662 hectares located at the north-eastern edge of Wyndham to the immediate west of the existing Laverton North Industrial Precinct. It is anticipated that between 10,000 and 15,000 new jobs will be delivered in the Truganina Employment Precinct.

There are also several sites with licences for extractive industry within the municipality which should be protected.

Council's strategic directions for industry are to:

• Protect industrial precincts from intrusion by inappropriate land uses that put pressure on lawful existing industrial activities.
• Encourage the growth of Laverton North and the Truganina employment precinct for industrial development.

1. The Council also relies on a range of policies that relate to the protection of industrial land, however the review site and surrounding land are within an applied zone of the Commercial 2 Zone, allowing a broader range of uses than could be considered on land that in the future will be in one of the Industrial zones.
2. This is far from the first time that the Council has opposed a non-industrial or core commercial use in this precinct. The Council in its submissions referred to a number of past Tribunal decisions, that have considered a range of land uses in various contexts. The decision that I have found to be most useful and similar to the circumstances that are now before me, also considered the appropriateness of an indoor recreation facility in this precinct. The Tribunal in the decision of PCRDM Pty Ltd v Wyndham CC [2019] VCAT 1029 considered a proposal for a range of land uses, including an indoor recreation facility, nearby at 2 Infinity Drive, Truganina. In its decision, the Tribunal set out the following.

[44] I find that the use and development of the land for indoor recreation facility can be considered as a use that is generally in accordance with the PSP as it:

• Generates employment opportunities consistent with the vision and intention of the PSP;
• Is located in an area of the PSP that is anticipated to house a mix of business and employment uses and act as a buffer between the core industrial area to the north and the residential area to the south;
• Will not create amenity impacts for or restrict the activities or development of industrial uses nor will it be affected by industrial uses in the surrounding area;
• Does not compromise the potential establishment of the WFT.

1. I rely on and adopt these reasons in this proceeding, as to the reasons why the indoor recreation facility that is before me, is a land use that is generally in accordance with the TEPSP. I further find that this land use is supported by the relevant policy context, noting that it is a commercial land use in an applied commercial zone, and will create employment in a location earmarked for a range of employment generating uses. It is therefore consistent with the Economic growth policies from Clause 02.03-7 of the Wyndham Planning Scheme. It is also relevant to note that the review site at 128 square metres of footprint, is a very small tenancy, that is unlikely to host a land use that generates a significant amount of employment. It is also likely to be suitable for a small range of land uses, noting that its size, and construction with windows only at one end (as per the photograph below, extracted from the Council's submission), will be unlikely to be attractive to an office use. This proposition was agreed to by Mr Bowden during the course of the hearing.

1. In contrast, the Council relies on the decisions of PCRDM Pty Ltd v Wyndham CC [2020] VCAT 987 and Shree Swaminarayan Gurukul Australia Pty Ltd v Wyndham CC [2018] VCAT 1438. Both of these decisions upheld Council's decisions to refuse to grant a permit for non-industrial uses, which were found to be contrary to the strategic guidance for this locality. However, both of these decisions can be distinguished on the following bases:
   1. Both of the two sites that were the subject of these Tribunal decisions had an applied Industrial 3 Zone, and therefore were earmarked for industrial uses consistent with the core industrial purpose of this part of the growth area. In contrast, the applied Commercial 2 Zone on the review site provides strategic support for a broader range of commercial land uses.
   2. These previous decisions considered proposals for a restaurant/function centre, and a place of worship and a caretakers dwelling, respectively. These land uses were to accommodate much larger sites as compared to the review site that is the subject of this current proceeding, and therefore would have each resulted in a large non-industrial use, displacing the potential uses of these sites for substantial industrial and related premises.
   3. The decision of PCRDM Pty Ltd v Wyndham CC [2020] VCAT 987 dealt with an area within this part of the growth area that already had a high proportion of non-industrial uses, and so was concerned (at paragraph 37 of that decision) about the proportion of non-industrial uses in that area. No such submissions have been made about this section of the surrounding business park.
2. In addition, the Council's submissions that the proposal does not represent orderly planning relies on the reasons set out in both of these previous Tribunal decisions. Again, reliance on these decisions needs to recognise that they involved sites with an applied industrial zone. While a restaurant/function centre and a place of worship may be considered land uses not promoting orderly planning in an industrial zone, it is a stretch to then say this leads one to the conclusion that a small dance studio in a commercial zone also does not support orderly planning. Indeed to the contrary, I find that a dance studio is a land use that is most appropriately located on commercially zoned land, regardless of whether that commercially zoned land is located within a future town centre, or a business park.
3. Finally, the Council submits that this is a land use that is preferably located in the area to the south that is identified as a future town centre. While I agree that this nearby land would be suitable for this type of land use, that does not reduce or remove the potential that the review site is also a suitable parcel of land.
4. For these reasons I find that there is strategic support for this land use in this location.
5. The Council did not raise any other concerns with the proposal, including in relation to the provision of car parking. I agree with the Council's submission that the proposed provision of three car parking spaces, and wider access to a large number of car parking spaces, is more than enough car parking for the small dance school that is proposed for the review site. Indeed, the amount of car parking that is apparently available would support a higher number of students and teachers than the small number currently proposed for the review site. An increase in the number of teachers would also further the employment outcome on the review site, as strongly encouraged by the relevant strategic context. An increase in the number of students would also provide an increased community benefit. I make these observations so as to assist the parties to understand that it is not the Tribunal's position that the capacity of the site should be so constrained as set out in the draft permit conditions, in the event that an application is made in the future to expand the proposed land use.
6. It therefore follows that I will set aside the Council's decision, and direct the grant of a planning permit subject to conditions. I will broadly adopt the conditions as drafted by Council and circulated prior to the hearing, but will insert the permit expiry conditions that are applied as standard by the Tribunal.

• Use of the land for an Indoor recreation facility
• The construction of buildings and works

1. The development and/or use(s) permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the Responsible Authority.
2. Except with the prior written consent of the Responsible Authority, the use permitted by this permit must operate only between the following times and with the staff and student numbers specified:

10am - 5pm Maximum of four (4) students and one (1) staff member on site at one time

5pm - 10pm Maximum of eight (8) students and two (2) staff members on site at one time

10am - 10pm - Maximum of eight (8) students and two (2) staff members on site at one time

1. The use permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods, or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.
2. An area on the subject land must be set aside for the purpose of a waste disposal/collection bin. The waste bin area must be provided prior to the commencement of the use permitted by this permit, maintained and used to the satisfaction of the Responsible Authority and must not be used for any other purpose.
3. Mechanical ventilation systems, refrigeration motors, air conditioning units or all other equipment (including amplified music) is to be suitably located so they do not cause a nuisance to adjoining properties.
4. Goods, equipment or machinery or any other structure must not be erected or stored or left exposed outside a building, including walkways, car parking and landscape areas so as to be visible from any public road or thoroughfare.
5. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be maintained in a usable and safe condition to the satisfaction of the Responsible Authority and made available for such use and must not be used for any other purpose.
6. All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimise the effect of such activities on the amenity of the locality. Measures must be taken to suppress dust, noise or other emissions during construction to prevent nuisance to surrounding neighbours.
7. This permit as it relates to use will expire if the use does not commence within two (2) years after the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the issue date of this permit.

(b) The development is not completed within four years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.