1. The Council planning officer's report provides a useful summary of the site and locality, as follows.

The subject land has an area of 5228 square metres and is located at the southwest corner of Piermont Drive and Fairholme Boulevard, Berwick. The site is irregular in shape and has a frontage of 48m to Piermont Drive and a depth of 84m along its western side. The site is vacant without any significant vegetation. It slopes gently from its northwest corner with a fall of about 6m, from the highest point to the lowest point.

Surrounding land is developed at conventional residential density. The immediate land to west and southwest consists of a carpark and a football/cricket oval. Further west of the site is the Berwick Primary School. To the east of the site is a large public open space comprising of some children's play equipment.

1. The large scale aerial photo provided by Mr Gobbo was useful to us in clarifying that on the other side of the nearby railway line from the subject land are a number of large institutional type uses, including the Casey Hospital, a retirement village and Beaconhills College. Also not far away is the large Edrington Park Retirement Village to the north of the site, and the Haileybury College Berwick Campus to the east.
2. With respect to other gymnasiums in the locality, it was common ground that there is no other female-only gym in Berwick, but there is an existing mixed gym. The nearest female-only gym is in Narre Warren.
3. There is already in place an approval for a medical centre on part of the subject land.
4. Our inspection of the site and locality also reinforced that there is minimal public transport in close proximity, and we can reasonably expect that in most cases a person wishing to travel to the proposed facility from any significant distance would do so by vehicle.

1. The main components of the proposal are:
   • a restricted recreation facility, which will take the form of a female-only gymnasium and associated day spa facility, together with a separate martial arts school;
   • an 80 seat restaurant, which will have a floor area of about 365 square metres; and
   • the provision of 88 car parking spaces. Seventy of these spaces are to be provided at grade on the eastern and northern side of the new buildings, plus 18 basement spaces.
2. With respect to the gymnasium, the main training area will be at ground level, together with ground level ancillary day spa facilities, lounge and administration areas, a single change room area and interview rooms. There will be two multi-purpose rooms (eg for aerobics) at the upper level. The total floor area for the gymnasium is 1026 square metres. We were told by Mr Gobbo that no formal tenancy agreement had been signed, but the landowner has a preferred female-only gym operator lined up.
3. To the south of the gymnasium will be a further training area, with the landowner apparently having a more formal arrangement that a local martial arts school (the "Golden Lion Academy") will lease this space. The floor area here will be 621 square metres. This facility will operate separately from the gymnasium and will have its own entrance facing Piermont Drive. The services offered will include both the main training room and two small suites, to be used for acupuncture treatment and Chinese herbal medicine treatment.
4. Mr Gobbo provided us with the preferred hours of operation of the gymnasium, day spa, martial arts school and restaurant. He emphasised that the restaurant is intended to have a more informal café-bistro style that would appeal to local families, rather than offering "fine dining". He also highlighted that the proposed operating hours for the restaurant would include relatively constrained evening trading (ie Mr Govenlock has recommended that the restaurant close at 9 pm all nights except Saturday night, when there would be an 10 pm closing time).

1. The site is zoned Residential 1 and is not subject to any overlay controls.
2. A permit is required pursuant to Clause 32.01-1 of the Planning Scheme for the "restaurant" and "restricted recreation facility" use aspects of the proposal, and for the associated buildings and works.
3. In relation to the car parking requirements, some of the necessary car parking spaces must be provided to the satisfaction of the Responsible Authority, so there may or may not be a need for car parking dispensation, depending on how this discretion is exercised. The traffic evidence from Mr Turnbull is that the proposal would have a peak parking demand of 92 spaces (ie if all components of the proposal were operating at full capacity together). With 88 spaces to be provided, this strictly leads to the need for a four space dispensation pursuant to Clause 52.06 of the Planning Scheme.
4. Clause 52.07 of the Planning Scheme deals with the requirements for the loading and unloading of vehicles - the proposal does not involve any designated loading bay. Hence a waiver of this requirement is necessary.
5. The main State planning policies of relevance here are as follows - Clauses 12.01, 14, 15.12, 17.01, 17.02, 18.02 and 19.03.
6. At the bottom of page 6 of Mr Crawford's written submission, the following provision from Clause 12 was highlighted.

• Ensuring that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.
• Ensuring that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.

1. Pages 7 and 8 of Mr Crawford's written submission set out some other useful passages from clauses 21.05, 21.13, 22.05 and 22.08 of the Planning Scheme - we have attached a copy of these pages as an Annexure to this decision.
2. We note that in his evidence Dr Wolinski urged us to give weight to the relevant provisions of Council's Activity Centres Strategy 2006. However as this document is at its early stages and does not form part of the Planning Scheme, we see it as more playing a background role rather than being of any particular consequence to our decision, until it has progressed further through the approval process.

1. We will not repeat the submissions of the parties, but concentrate on what we see as the key issues.
2. We shall first tackle what we regard as the more straightforward issues, being the merits of the proposal in relation to traffic/parking, building bulk and scale, landscaping and potential external amenity impacts.
3. We shall then focus on the central issue on which this appeal has turned, being whether there is an acceptable level of policy support for this type of non-residential proposal being sited in an established residential area.

1. Relying on the expert evidence of Mr Turnbull and from our own observations during our inspection, we see no traffic or parking reasons to refuse the proposal.
2. With respect to parking issues, we consider Mr Turnbull's parking assessment to be credible, and to have taken a conservative approach in assessing the different components of the proposal at a combined maximum operation. We expect that in reality there will be many occasions when one component (eg the gym at each end of the day) might have peak parking demands, but where another component may be operating with low parking demand (eg the restaurant in the early morning). However even if we take Mr Turnbull's approach, we accept his evidence that a car parking reduction of 4 spaces (ie 88 rather than 92 spaces) is minor and acceptable.
3. With respect to traffic generation, on the one hand we accept that the proposal can be expected to generate a noticeable degree of extra traffic than would otherwise occur in the locality. However, if the critical policy considerations discussed below are put to one side, we do not regard the likely traffic impacts as fatal in isolation. We rely here on the fact that Fairholme Boulevard already has a "collector road" function and therefore already carries a reasonable level of local traffic. It is not as if the site is located in a very quiet local street.
4. Fairholme Boulevard also connects to a number of arterial roads in proximity to the site. We are satisfied that while car travel would be the predominant means for accessing the site, there are a sufficient number of different routes to allow the traffic to readily disperse into the surrounding network of major roads. Notwithstanding the capacity of the local road network to be able to manage the likely increase in traffic numbers, it must be borne in mind that we expect such an increase to be noticeable and to have a negative amenity impact on the local community, in particular the residents immediately surrounding the subject site.

1. Our site inspection was particularly useful in clarifying our view that the bulk, scale and appearance of the proposed new building will be compatible with the existing streetscape and neighbourhood character. It was immediately clear in driving around the local streets that many of the existing dwellings are 2-3 stories in height and quite imposing/hard edge in appearance. In addition, the new building will be seen in the context of various institutional uses/buildings in the local area. The obvious one is the Berwick Primary School buildings next door, which are well articulated but still constitute an existing dominant visual feature of the locality. Some other "pluses" of the new building are that it is not "boxy" but has a good level of detailing, and will be separated from the nearest school building by the intervening car park. For these reasons, we are comfortable with the two storey nature of the new building.

1. The subject land has the benefit of having no direct residential interfaces. The site abuts a local street to the north and east, has a reserve to the south, and features the Berwick Primary School and associated car park to the west. Although there are residential properties on the other side of the street to the north and south-east, there is another reserve on the other side of the street to the north-east. In relation to any noise impacts associated with the new car park and possibly the inside recreational uses, the new building is set well back from Fairholme Boulevard and Piermont Drive, and there is a suitable landscaping buffer between these streets and the new car park. In addition, with Fairholme Boulevard already being a local collector road and with a primary school next door, we expect there is already some degree of noise impacts that are "part of the territory" for local residents, together with higher levels of traffic at school drop off and pick up times.
2. On this basis, putting to one side the critical policy considerations addressed below, we do not see any potential external amenity impacts which in themselves are fatal for the proposal. Whilst we see a need to ensure that any exiting vehicles from the new car park do not cause unacceptable headlight glare for the adjacent dwellings on the south-western corner of the site, we acknowledge that this could be adequately dealt with by way of a permit condition.

1. We have no problems with the proposed landscaping treatment as set out in the expert report by Ms Nadebaum. We accept that a reasonable degree of plantings has been provided for around the perimeter of the site. It is also a "plus" for the landscaping that the new building has a good level of articulation and detailing, so this is not a situation where the landscaping is trying to screen what is otherwise an unpleasant looking building.

Fundamental issue for this appeal - does the proposal have an acceptable level of policy support?

1. We now turn to the fundamental issue on which this appeal has turned, being whether the proposal has an acceptable level of policy support. In this regard, Council's opposition to the proposal revolved around Council's belief that the policy framework points to this type of proposal needing to be located in an existing activity centre. In response, Mr Gobbo urged us to find that in practice it is difficult to locate this type of use in an established local activity centre, and in fact the policy framework provides an adequate degree of support for a restricted recreation facility and restaurant in an established residential are. Both Mr Gobbo and Mr Crawford relied on their respective planning witnesses, and there was some discussion of certain previous Tribunal cases on this point.
2. We see three main aspects to this issue, being:
   • whether there are any fatal policy considerations in terms of the relevant out-of-centre development/activity centre policies;
   • whether Clause 21.13 or Clause 21.05 of the Planning Scheme applies to the proposal; and
   • whether the proposal will provide a net community benefit to the local community.

Is proposal acceptable when assessed against the relevant out-of-centre development/activity centre policies?

1. A good starting point here is the Melbourne 2030 metropolitan strategy. Direction 1 of "A more compact city" includes at page 55 the Policy 1.2 of "Broaden the base of activity in centres that are currently dominated by shopping to include a wider range of services over longer hours, and restrict out-of-centre development".
2. The discussion at page 55 of out-of-centre development includes the following statements.

Proposals for development or expansion of activities remote from activity centres will be discouraged by giving preference to locations in or on the border of an existing activity centre. Out-of-centre proposals will only be considered where it can be convincingly demonstrated that the proposed use or development is of net benefit to the community in the region served by the proposal.

Sports and entertainment facilities generate a significant number of trips. They should be located within or at the edge of activity centres. Large facilities of metropolitan, State or national significance may be considered for out-of-centre locations, but they should be on the Principal Public Transport Network and at locations that are highly accessible to their catchment of users.

1. At page 3 of 30 in relation to Clause 12 of the Planning Scheme, there are three bullet points under the sub-heading "Out-of-Centre Development", which have a very similar overall message. Whilst the second and third bullet points very closely follow the Melbourne 2030 text set out above, the first bullet point goes a little further as follows:

"Ensuring that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre".

1. On the one hand, it is clear to us that the preferred position under these State policies is that this type of recreational/restaurant proposal with a floor area of around 2000 square metres should ideally be located in an existing activity centre. We note in particular that the relevant text in Clause 12 picks up "recreational facilities' and the key text in Melbourne 2030 expressly deals with "sports and entertainment facilities". However we also accept that in both cases there is no express prohibition on out-of-centre development, but rather a fall back position that potential out-of-centre development should offer a net community benefit to the local community involved.
2. This brings us to Clause 22.07 of the Planning Scheme, being Council's "Activity Centres Policy". For our purposes, it is significant that Clause 22.07 has a strong "retail" emphasis running through it. For example, under the heading "Policy basis", the last of four paragraphs reads (with our emphasis) - "It is important that a wide range of retail opportunities be provided to maximise retail choice for Casey residents, to minimise escape expenditure and to develop a more self-reliant community". The remaining text under the headings "Objectives" and "Policy" makes no reference to sporting or recreational facilities, but again has a real focus on retail/shopping/retail floor space points.
3. In summary, we are satisfied that the main thrust of Clause 22.07 is to provide a local policy framework for new retail/commercial development, rather than the type of recreational/restaurant proposal in question here. Whereas we would have regarded Clause 22.07 as directly on point if the proposal before us had been for example a neighbourhood supermarket or a large liquor outlet, this is not the situation here. In relation to Melbourne 2030 and Clause 12, whilst is it clear that these State policies do not favour this type of site in an established residential area, these policies do provide a fall back position of assessing whether this type of proposal can still be justified based on an outcome of net local community benefit.

Are Clauses 21.13 (Accessability) or 21.05 (The built up area) of the Planning Scheme applicable to the proposal?

1. There was some debate at the hearing whether Clause 21.13 (Accessability) or Clause 21.05 (The built up area) of the Planning Scheme apply to the proposal and should be given weight here.
2. With respect to Clause 21.13, the opening text of this clause reads as follows (with our highlighting).

The community is best served by grouping major commercial and community facilities together. The co-location of these facilities in established and well planning town centres has many advantages, including increased accessability and convenience, reduced travelling costs, choice of travel mode and better use of existing infrastructure. These advantages may be negated if the facilities are separated.

1. In the first bullet point under the heading "Strategies" at Clause 21.13-2, we see again the emphasis on "major commercial and community facilities" as follows.

Encourage the location of major commercial and community facilities in or adjacent to the two regional centres at Fountain Gate - Narre Warren and Cranbourne. Other locations will only be considered if there are no suitable sites in the preferred locations and if there is a significant net community benefit to the community.

1. Mr Gobbo conceded at the hearing that the Applicant had not done any formal assessment whether any suitable sites for the proposal exist in the Fountain Gate and Cranbourne Shopping Centres.
2. Given this concession, if we were satisfied that Clause 21.13 does apply here, then the bullet point set out above would in itself provide us with a policy basis to refuse the proposal, and Clause 21.13 is potentially a "knock out point".
3. However our finding here is that we are unconvinced that this type of proposal, with a floor area of about 2000 square metres, constitutes a "major commercial or community facility" for the purposes of Clause 21.13. Whilst acknowledging the rather arbitrary nature of the judgement to be made here, we consider the use of the word "major" to indicate the draftsperson's intent that Clause 21.13's main thrust apply to more ambitious projects than we have before us here. Our thinking here is reinforced by the link made in the bullet point quoted above between "major commercial and community facilities" and the two closest regional shopping centres. A proposal involving about 2000 square metres of floor area does not jump off the page to us as being "major" in the context of a shopping centre as large as Fountain Gate.
4. For the avoidance of doubt, we have similarly avoided placing any weight on Clause 17.01 (Activity centres) in the State policies, because of the Clause 17.01 emphasis on "...major retail, commercial, administrative, entertainment and cultural developments".
5. Turning to Clause 21.05 dealing with "The built up area", we see this as more directed to "big picture" development issues applying to the whole urban area of the municipality, together with providing a policy framework for the future development of Fountain Gate and Cranbourne Shopping Centres. We consider Clause 21.05 to have little direct relevance to the proposal before us.

Will the proposal provide a net community benefit to the local community?

1. To recap, for the reasons set out above, we do not see any fatal policy issues for the proposal under the relevant State policies, under Clause 22.07 (Activity centres) and under Clauses 21.05/21.13 of the Planning Scheme. However we know that the relevant State policies are pointing to the need for the proposal to demonstrate a net community benefit for the local community, to justify being sited in an established residential area rather than a nearby established (eg Berwick town centre) or regional (eg Fountain Gate) activity centre.
2. This need to demonstrate a local net community benefit is reinforced by the other relevant local policy, being Clause 22.08 (Non-residential uses in residential areas).
3. Clause 22.08-1 and 22.08-2 read as follows (with our emphasis).

Residential areas require complementary non-residential uses for the convenience of local residents. These uses include convenience shops, places of worship, schools, child minding facilities, medical centres and petrol stations. However, care must be taken in selecting and sitting non-residential uses to avoid loss of privacy, amenity and convenience to residents living nearby.

The MSS states that new residential communities should be planned and developed around neighbourhood shopping centres that comprise a cluster of local commercial, community, educational and recreational facilities. The clustering of such facilities benefits the local community by providing a visible focal point that residents can identify with.

• To allow complementary non-residential uses to be integrated into residential areas.
• To ensure harmony between residential and non-residential uses.
• To develop neighbourhood nodes that provide convenience and identity to local communities.

1. Under the next heading of "Policy", there are a number of policies set out in bullet points, including the statement that it is policy that "Non-residential developments be planned and designed to cause minimal loss of amenity, privacy and convenience to people living in nearby dwellings" (this test is highly relevant and one which the proposal before us has to satisfy).
2. On the second page of Clause 22.08 there are various performance standard specified in relation to the uses of "medical centres", "display homes" and "child minding centres".
3. Relying on the relevant provisions from the key State policies plus the Clause 22.08 text that we have highlighted above, the sixty-four dollar question here is whether there will be a "net community benefit" outcome for the local community here. Put another way, will the potential negative local amenity impacts of the proposal outweigh its local benefits.
4. Our reading of the policy basis of Clause 22.08 is that there is a policy intent that non-residential uses should provide some form of community servicing function that can reasonably be expected in a residential setting. At an "in principle" level, we acknowledge that there will be a strong case that a "net local community benefit" arises where local residents can reasonably be expected to use a potential new use regularly that provides this service function (including but not limited to such uses as a convenience store, a school or other like uses nominated in this policy).
5. We can see some potential local benefits of the proposal, including:
   • the opportunity for a restaurant meal within walking distance for many local residents;
   • the opportunity to use a female-only gym that is closer than the existing one at Narre Warren;
   • potential synergies between the primary students at the adjacent school and the opportunities presented by a new martial arts academy. This could extend beyond martial arts lessons to the school simply using the academy's indoor training space for other recreational/sporting purposes. We would also expect some children living in nearby houses to be interested in the academy, even if they do not attend Berwick Primary School;
   • the capacity for women to combine school drop-offs or pick-ups with a visit to the gym. Similarly parents dropping kids off at the academy might find the restaurant attractive, as a way of passing the time during the lesson.
6. When reviewed against the policy provisions at Clause 22.08-3, we accept that some of these policy objectives will be met by the proposal. For example, the co-location of the proposal with the Berwick Primary School and adjacent recreation facilities reinforces a cluster of non-residential activities. We also accept that the worthy landscaping and design features of the proposal means that the new built form could sit comfortably with its surroundings and avoid any unreasonable negative "visual bulk' impacts for residents living in the nearby dwellings.
7. On the other hand, we are also conscious of a number of potential amenity impacts of the proposal and uncertainties as to the extent of the benefits offered, as follows.
8. First and most critically, we expect that the proposal will generate a noticeable amount of additional traffic. Given the minimal public transport available, there seems little doubt that there will be a high degree of car dependency for users of the new facility. This in turn means that those residents living either next to the site or along the main access routes will have to live with the additional noise and road safety implications of what we expect will be a noticeably higher level of traffic.
9. Second, unlike other more specific proposals such as a "medical centre", "child care centre" or "service station", the proposal before us is more generic (ie "restricted recreation facility and restaurant"). This leaves a significant degree of uncertainty as to the precise form of recreation facilities on offer in the longer term, and whether the restaurant will retain the "family appeal" as envisaged by Mr Gobbo. Whilst Mr Gobbo for example placed great reliance upon the local community benefits of the proposed martial arts academy[1], we have no way of knowing how long this academy will keep leasing the facility. On a strict view, the same could be said for the other two proposed operations.
10. Third, we know from the design of the gym building[2] that the gym will cater for a single sex clientele. Mr Gobbo advised that while no formal lease arrangements were in place, a preferred operator of a female-only gym had been lined up. Regardless of whether the proposal was for a female only compared to a male-only gym, the reality is that a single sex gym is only catering for roughly half of the local community. Common sense indicates that for a single sex gym to be viable, it will need to have a larger catchment, which in turn suggests less local people walking to the gym and a higher proportion of people from more distant locations driving to the gym.
11. Fourth, we have some doubts whether any of a single sex gym, day spa centre, 80 seat restaurant and martial arts academy can be described as the type of local facilities that local people will either use regularly or regard as essential for occasional use. By way of comparison, we expect that many local residents would:
    • regularly use a modest sized local café, a milk bar, a petrol station or a school; and
    • place a high priority on close access to a medical centre if they have a sick family member, or close proximity to a place of worship if the person is a regular worshipper, or being able to walk to a child minding centre if the person has pre-school children.

It is not obvious to us that any of a single sex gym, day spa centre, 80 seat restaurant or a martial arts academy fit into either of these "regular use" or "high priority" categories that we see as providing the "local net community benefit" which Clause 22.08 is aiming for.

1. Fifth, we might have approached the proposal somewhat differently if there was a more demonstrable "community facility" aspect involved. For example, if it could be demonstrated that one of the capacities of the new facility would be akin to a local "community hall" type function, or that the sports facility could be used by local sportspeople for a wide range of activities, it would be more obvious to us that the new facility will "provide convenience and identity" to the local community in the manner envisaged by Clause 22.08.
2. By contrast, there seems an uncomfortably high level of speculation here as to the capacity of the proposal to boost local community activities and identity. To the extent that Mr Gobbo and Mr Govenlock were suggesting that the co-educational Berwick Primary School students might use a single sex gym for sports activities, this seems little more than wishful thinking at this stage. The proposed gym will only cater for females and our understanding is that it is not intended to be a multi-sport facility. It is difficult to see how there could be any workable planning obligation imposed to require either the gym, the restaurant or the martial arts academy operators to make their space available for use by local community groups.
3. In summary, when we weigh up the likely local benefits of the proposal against the likely dis-benefits and uncertainties as to its contribution to local community identity, we are not satisfied that the proposal will result in a local net community benefit, or involve such uses anticipated in the Planning Scheme to provide such benefits. Due to this failure, our overall finding is that:
   • the proposal fails to meet the policy requirements of Melbourne 2030 and Clauses 12 and 22.08 of the Planning Scheme; and
   • accordingly, the proposal should be refused.

1. For the reasons set out above, we do not see any reasons to issue a refusal (putting to one side policy issues) in relation to the traffic and parking, the building bulk and scale, the external amenity impacts and the landscaping aspects of the proposal.
2. The critical issue on which the appeal has turned has been whether the proposal is likely to achieve a local net community benefit. In this regard, we are unconvinced that the possible local benefits of the proposal sufficiently outweigh the likely dis-benefits and uncertainties as to its contribution to local community identity, with the result that we have refused the proposal.
3. Whilst we have some sympathy for Mr Gobbo's submission that it is not easy to find a suitable site for this type of proposal in the core area of an existing local activity centre such as Berwick town centre, another option again seems for this type of proposal to locate on the edge of an existing activity centre, or otherwise in a suitable industrial type area. Noting Mr Gobbo's concession that no formal assessment had been done of other potential sites in the nearby existing activity centres, this other option would seem worthy of further consideration.
4. To the extent that there was discussion of a handful of cases during the hearing, while those cases are useful in reinforcing the broad principles involved, we see those cases as turning on their own facts in terms of whether the Tribunal saw the particular proposal in question as acceptable or not.

ANNEXURE - Taken from Mr Crawford's written submission

[1] Mr Gobbo memorably submitted that potential students of the martial arts academy would be "kicking the door down" to enrol in the academy.

[2] There is only one set of change rooms provided, rather than the usual separate womens and mens change rooms.