30 & 31 May 2016, 1 & 6 June 2016, 17 June 2016, 7 & 8 July 2016

TPSC Pty Ltd v Kingston CC [2016] VCAT 1221

1. In permit application No. KP-650/2014, pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

• TP01-TP17, 'VCAT Submission, 18.04.16'; TP18, TP20, TP20.01, TP20.02, TP21-TP23 'Town planning resubmission

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by:
   • Deleting permission to reduce the statutory car parking requirement;
   • Including permission to reduce/waive the loading and unloading bay requirements.

1. In application P636/2016, the application for a declaration pursuant to section 149A of the Planning and Environment Act 1987 that the section 173 agreement AH049451J has expired is refused.

1. In application P817/2016, pursuant to section 149B of the Planning and Environment Act 1987, the following declaration is made:
   1. The responsible authority must consider the request made pursuant to section 178A of the Planning and Environment Act 1987 by TPSC Pty Ltd for 'in-principle' support to end or amend the section 173 agreement AH049451J in accordance with the provisions of section 178B of the Act.

1. In application P818/2016, the application pursuant to section 149(1)(b) of the Planning and Environment Act 1987 is refused.

1. By no later than 14 October 2016, Bonleaf Pty Ltd must file and serve amended plans in accordance with the requirements of Practice Note PNPE9 but only on parties and any referral authorities that address the following issues as discussed in these reasons:
   • Forecourt/Lower Dandenong Road abuttal redesigned to better integrate with the balance of the ground floor area.
   • Better internal arrangement of uses within the Lower Dandenong Road building including locating the retail anchor/supermarket at the northern end of the building and relocation of other uses.
   • Better resolution of the loading facilities for the bottle shop and for the loading and unloading needs associated with the residential apartments in both buildings.
   • Refine car parking arrangements in the basement.
2. By no later than 11 November 2016, other parties must file and serve a response to the amended plans.
3. Liberty to apply.

Deputy President Gibson and Member Hadjigeorgiou

1. Applications P2542/2015 and P2673/2015 are listed for a further hearing in accordance with the details set out in item A above. No further hearing notice will be sent.
2. Any changes to the hearing details will be notified by further order of the Tribunal.
3. Please read the information included in Appendix A and observe any directions included in the Appendix.
4. All hearings will be conducted at 55 King Street, Melbourne.

Mr C Townshend QC and Ms J Trewhella of counsel, instructed by Best Hooper Lawyers.

• Thomas Mark Jordan, architect (project director) Hayball Pty Ltd
• Mark Peter Sheppard, urban designer, David Loch Associates (Australia) Pty Ltd
• Andrew Biasci, town planner, Contour Consultants Australia Pty Ltd
• Charmaine Dunstan, traffic engineer, Traffix Group

Mr Stuart Morris QC and Mr Andrew Walker of counsel, instructed by Planning and Property Partners Pty Ltd.

• Peter Doig, architect, Doig Architecture
• Robert Milner, town planner, 10 Consulting Group Pty Ltd

Mixed use development comprising two eight storey buildings for residential and commercial uses. The development will include 241 apartments, 4335m2 (net leasable area) of commercial floor space including supermarket, bottle shop, café, medical centre and office; and 446 car parking spaces. The site adjoins and will be accessed from the existing Thrift Park Shopping Centre, Mentone.

P2542/2015 - Application under Section 82 Planning and Environment Act 1987 by TPSC to review the decision to grant a permit.

P2673/2015 - Application under Section 80 Planning and Environment Act 1987 by Bonleaf to review conditions in a permit.

P636/2016 - Application under section 149A Planning and Environment Act 1987 by TPSC for declarations about the expiry of a section 173 agreement.

P817/2016 - Application under section 149B Planning and Environment Act 1987 by TPSC for declaration concerning in-principle agreement pursuant to section 178A(1) of the Act.

P818/2016 - Application under section 149(1)(b) Planning and Environment Act 1987 by TPSC to review failure to consent to request under section 173 agreement.

Design and Development Overlay - Schedule 20 (DDO20)

Clause 34.01-1 (C1Z) - a permit is required to use the land for dwellings as the site frontage at ground level exceed two metres.

Clause 34.01-1 (C1Z) - a permit is required to construct a building or construct or carry out works.

Clause 43.02-2 (DDO20) - a permit is required to construct a building or construct or carry out works.

Clause 52.27 (Licenced premises) - a permit is required to use the land to sell packaged liquor as a licence is required under the Liquor Control Reform Act 1998.

Clause 52.29 (Land Adjacent to a Road Zone, Category 1 or Public Acquisition Overlay for a Category 1 Road) - a planning permit is required to construct or alter access to a Road Zone Category 1.

Clauses 9, 11, 11.01, 15.01, 15.02, 16.01, 17.01, 18.01, 18.02, 21.04, 21.06, 21.012, 22.11, 34.01, 43.02, 52.06, 52.07, 52.27, 52.29, 52.34, 52.35, 52.56, and clause 65

The land is an irregular shaped parcel with frontages to both Nepean Highway and Lower Dandenong Road. It has an area of approximately 7290m2. The land abuts the Thrift Park Shopping Centre to the east, which is a neighbourhood centre with a local convenience function anchored by a Woolworths supermarket. The land has a fall across the site of approximately 1 metre from north to south.

The Tribunal inspected the subject land, Thrift Park Shopping Centre and surrounding area on 16 June 2016.

1. These five proceedings all relate to a large mixed use development proposed on land owned by Bonleaf Pty Ltd (Bonleaf). The development is opposed by the adjoining land owner, TPSC Pty Ltd (TPSC), which owns the Thrift Park Shopping Centre. The proceedings also involve the interpretation of a section 173 agreement that applies to both the Bonleaf and TPSC land. The primary issue in contention is access to the subject land via the TPSC land, which was contemplated when the section 173 agreement was entered.
2. The section 173 agreement was entered in 2009 in the context of Amendment C81 to the Kingston Planning Scheme. This was a combined planning scheme amendment and permit application process. Amendment C81 rezoned land[1] from Business 4 Zone to Business 1 Zone (now Commercial 1 Zone) and introduced and applied DDO20 to the Thrift Park Neighbourhood Activity Centre, Mentone. Two permits were issued for the TPSC land and for the Bonleaf land - planning permit KP375/08 (TPSC permit) and planning permit KP374-08 (Bonleaf permit). The Thrift Park Shopping Centre was built on the TPSC land pursuant to the TPSC permit. However, Bonleaf did not act on the Bonleaf permit; no plans were endorsed under it and the permit has now expired.
3. Both Amendment C81 and the two permits required a section 173 agreement to be entered to provide for appropriate contributions towards the signalisation of access to the land from the Nepean Highway and the planning of integrated vehicular and pedestrian access arrangements. At the time when the two permits were issued, it was contemplated that there would be signalised access to the TPSC land from Nepean Highway and that access to the Bonleaf land would be via the signalised access point and from Lower Dandenong Road across the TPSC land. In due course, two signalised intersections were provided at Nepean Highway and Lower Dandenong Road, and Bonleaf contributed 50% of the cost.
4. There is now a dispute between TPSC and Bonleaf about access to the Bonleaf land over the TPSC land, the design of the development on the Bonleaf land and the provision of shared car parking.
5. In dealing with these proceedings, we will deal first with the planning merits of the permit application[2] arising in the context of the section 82 application (P2542/2015) and the section 80 application (P2673/2015) based on the amended plans that were substituted at the commencement of the hearing.
6. We have dealt with the permit application on the basis that access as proposed over the TPSC land will be available. Clearly, if for some reason it is not possible for Bonleaf to obtain lawful access over the TPSC land, the permit cannot be acted upon until this issue is resolved. However, this scenario is no different to any other proposal where other approvals may be required in addition to the planning permit.
7. We have then dealt separately with the issues arising in connection with the section 173 agreement and concerning access.
8. Our overall conclusion with respect to the planning merits of the permit application is that the proposal should be approved and a permit granted, but with some modifications. We do not consider that the modifications justify refusal of the application, especially given the amount of detailed work in terms of planning and design which has been undertaken to date. Rather, we propose to issue an interim order and provide Bonleaf with an opportunity to prepare further amending plans for our consideration before making a final decision.
9. With respect to the section 173 agreement, we consider that the circumstances require us to consider it in deciding that a permit should be granted. Our overall conclusion is that the proposal will support the purpose and intent of the agreement. We do not consider that the agreement has expired or that it would be futile to grant the permit because it is not binding on TPSC. Nor do we support releasing TPSC from its obligation under the agreement to share carparking on its land with the general public and visitors to the Bonleaf land.
10. Finally, we consider that if TPSC wishes to challenge the validity of the agreement or parts of it, it should make application in the Supreme Court. The Tribunal's jurisdiction does not extend to making declarations or rulings about the validity of a section 173 agreement purportedly executed in compliance with the Planning and Environment Act 1987, recorded by the Registrar of Titles in the Register and appearing as an encumbrance on the certificates of title for the Bonleaf and TPSC land.

1. The proposal is to develop the land (following demolition of all the existing buildings on the site) for the purposes of a mixed use development comprising three basement car park levels and up to eight levels of commercial and residential development.
2. The development is to be constructed in basically two separate built forms with one building sited on the northern portion of the site essentially abutting Lower Dandenong Road. This building comprises a basement car park, a ground level of retail and commercial uses and a tiered building of up to seven levels of residential development.
3. The second building occurs at the Nepean Highway frontage and is comprised essentially of a bottle shop at ground level and a medical centre at the first floor level with six levels of residential development above.
4. The table below summarises the uses and associated floor areas.

1. The northern building adopts an essentially H shaped floor plate with a void to the north providing a public forecourt at ground level fronting the Lower Dandenong Road abuttal. Pedestrian only access is available from Lower Dandenong Road to the forecourt via five pedestrian ramps because of the level differences between the Lower Dandenong Road footpath and the forecourt. The forecourt is surrounded by commercial/retail uses and a café (food and drink premises) with a pedestrian path located along the eastern boundary of the site. The upper level residential development is tiered between levels four to seven.
2. The southern building is an L or V shape above level 2. While the ground floor level and first floor level are designated as bottle shop and medical centre respectively.
3. Access to the basement car parks are via three distinct locations. Basement level 1 provides for all the retail and commercial publicly available car spaces and all of the visitor car spaces associated with the residential development. This level is accessed from the main access road into the Thrift Park Shopping Centre (the subject to the section 173 dispute). This basement car park provides 164 car spaces.
4. Basement level 2 provides for 128 allocated residential car spaces and 37 allocated commercial car spaces. Level 2 is accessed off a separate dedicated access driveway located on the northwest corner on the site via Lower Dandenong Road.
5. Basement level 3 provides for 117 allocated residential car spaces and is accessed via a dedicated accessway located at the south west corner of the site via the service road along Nepean Highway.
6. Bicycle parking is provided within each basement level ranging from 22 to 41 bicycle spaces on each level and there are further five bicycle spaces provided at ground level resulting in a total bicycle provision of some 104 spaces.
7. The proposed development will be linked to the existing Thrift Park Shopping Centre via a pedestrian link located just north of the point where access is available to the basement 1 car park. This location is generally consistent with the position outlined in the endorsed plans for the TPSC permit and the plans accompanying the Bonleaf permit.

1. While there was much time spent at the hearing on whether the proposal was an acceptable response to the planning framework which applies to this site, what was clear and indisputable between the parties was that this was a site that had a high degree of policy support within the Kingston Planning Scheme for the type of use and development proposed. The site is located within a Commercial 1 Zone and is subject to Design and Development Overlay Schedule 20 (DDO20). Identical controls apply to all of the land within the Thrift Park Activity Centre (TPAC). The TPAC includes all of the area between the eastern intersection of Lower Dandenong Road and Nepean Highway and the western boundary of the TPSC land fronting Lower Dandenong Road and slightly further west fronting Nepean Highway.
2. At the state planning policy level, clauses 11.01 and 11.02 and clause 16.01-2 and 16.02-3 all encourage opportunities for consolidation, redevelopment and intensification of existing urban areas within close proximity to identified activity centres that offer good access to services and transport.
3. This site is well served by public transport with bus services available nearby and the Mentone railway station located within 1 kilometre of the site to the west.
4. At the local level, the TPAC is classified in the Kingston Planning Scheme as Neighbourhood Activity Centre (NAC). Policies for these centres include encouraging
   • High residential densities particularly in the form of Shop Top Housing and Mixed Use developments.
   • The consolidation of retailing activities.
   • The promotion of a wider mix of a commercial retail residential and community facilities to enhance its attractiveness as a local community centre and
   • Built form to be consistent with the neighbourhood character of the centre and largely local function.
5. DDO20 was introduced into the Kingston Planning Scheme and specifically applied to this centre by Amendment C81. That amendment was a combined planning scheme amendment and permit application process. The amendment and permit process had the clear goal of facilitating the revitalisation of the Thrift Park Activity Centre through objectives that include:
   • To reinforce the role and identity of the Thrift Park Activity Centre, strengthen business synergies and create an enhanced community focus for the area.
   • To assist in strengthening pedestrian and vehicle accessibility and linkages within the Thrift Park Activity Centre.
   • To activate Nepean Highway and Lower Dandenong Road and improve the overall appeal aesthetics of the activity centre and the general amenity of the surrounding area.
   • To allow provision for the activity centre to continue to evolve in response to community needs in areas including retailing, accommodation and commercial services.(Tribunal's emphasis)
   • To improve both day and night time surveillance of surrounding community uses.
   • To encouragement development that compliments the character of the area and does not adversely affect surrounding residential and sensitive uses.
   • To encourage innovative, high quality architecture and urban and landscape design responses that incorporate environmental sustainable design initiatives.
6. We accept that the emphasis of state and local housing policies and the need to accommodate increased residential and mix use development opportunities has been given greater emphasis in the Plan Melbourne strategy.
7. We acknowledge the key difference between this proposal and the one previously approved by way of the Bonleaf permit is the intensification of residential development. However, as set out in DDO20, there is an acknowledgement that activity centres will evolve and we accept that this evolution may include more intense residential development, as is the case here.
8. The planning scheme has long acknowledged activity centres as preferred locations where built form change and land use intensification is to be encouraged.

1. Mr Milner, who gave planning evidence on behalf of TPSC, submitted that the planning policy framework for this site was essentially flawed because of the absence of a structure plan for the site and centre. Mr Milner also submitted that nothing in the policy framework for a neighbourhood activity centre identified this site as appropriate for the level of intensity and particularly scale that was being proposed for this site.
2. We accept the proposition put to us by Mr Townshend on behalf of Bonleaf that the absence of a structure plan is no reason to reject a development. We accept that the existing planning framework for the NAC provides sufficient guidance to the Tribunal against which to measure the proposed development.
3. Mr Townshend also referred to the observations of the Tribunal in the decision of Golden Ridge v Whitehorse CC (Mitcham Towers) [3] about structure plans. We agree with the comments made in that case that while structure plans may assist, they are not necessary in all cases to facilitate a properly considered outcome.
4. In this instance, we believe we have sufficient information before us to make an informed decision on this proposal.
5. Mr Milner, was critical of the scale of the development. His analysis was that the scale proposed was inconsistent with what might be anticipated within a NAC, particularly when compared with either NAC's or PAC's in general or with other NAC's within the Kingston municipality.
6. In essence, Mr Milner's opinion was that given the largely four level development within the Mentone Activity Centre to the south west and the four to nine level developments at the key junction of the Nepean Highway and Balcombe Road centre that eight storeys on this site could simply not be justified. Mr Milner submitted that something in the order of five levels may be more appropriate having regard to the scale of development around the site.
7. We do not accept this analysis. We believe the policy framework for this location supports a level of intensity that ensures an acceptable outcome in terms of its impact on the adjoining and nearby land. We consider this is a location where substantial built form change is not only anticipated but encouraged.
8. We accept that the planning policies at clauses 11, 21.03 and 21.05 envisage a range of activity centres that differ in size and function and that offer a range of housing opportunities. But just because a centre is identified as a NAC doesn't mean that it cannot accommodate higher density residential development particularly when all other off site measures are found to be acceptable.

1. It is clearly recognised that policies which apply to this site are seeking to encourage more intense development on well serviced and well located sites like this one, essentially to reduce the impact of development on hinterland areas where less change is being sought.
2. We adopt the Tribunal's comments in Carlos Constructions Pty Ltd v Moreland CC[4] where it stated:

[43] ...There is nothing wrong with height in a building per se. Height only becomes a problem when it gives rise to adverse off site effects and when it is in the wrong context.

[47] ...The key issue is therefore the degree to which development should be bound by existing character and the importance that that should be placed on the achievement of higher density development and key policy objectives in a location that we consider to be is well suited to accommodating change.

1. In our view, the proposal to construct residential development up to eight storeys in height is entirely appropriate on this site. On this point, we note that Mr Doig, who also appeared for TPSC, supported the general scale of the built form in this proposal.

1. The mix of uses[5] proposed for this development is in our opinion quite acceptable and consistent with the objectives set out in the Commercial 1 Zone purposes and the previously approved permit for the site.
2. We regard the mix of uses to be entirely consistent with the primary role of an activity centre as set out in clause 21.06-3 of the Kingston Planning Scheme, including providing for an enhanced mix of commercial, retail, community and residential uses.
3. We note that to some extent the amount of floor space allocated to particular uses, for example retail supermarket, is dictated by the requirements of the section 173 agreement. Whilst we offer no view on whether the level of retail floor space set out in the section 173 agreement is appropriately constrained, we accept that that constraint applies.
4. Nevertheless, none of the parties expressed any major concern with the level or mix of uses set out in this proposal save for Mr Milner's concern with the scale of the residential buildings i.e. height and perhaps Mr Doig's criticism that the size of the retail supermarket was questionable in terms of its viability. We may draw some inference from Mr Doig's evidence that he was not comfortable with the restriction that applied to the supermarket floor area under the section 173 agreement. Nevertheless, that is not an issue before us.
5. Thus in general we accept that the mix of uses is appropriate for this activity centre, site and application.

1. The built form and urban design layout of this proposal must respond to the requirements set out in clauses 2 and 4 of DDO20. Clause 2 requires the owner of the subject site to enter into a 173 agreement which includes amongst other things:

(c) the planning of integrated vehicular and pedestrian access arrangements to the adjacent land to the immediate west of the land effected by this permit.

1. There was some discussion about whether this meant the area west of the TPSC land or whether 'west' also applied to the land west of the Bonleaf land. Nevertheless, for the sake of removing any doubt, Mr Townshend submitted that a section 173 agreement would be entered into in relation to arrangements for the provision of integrated vehicular and pedestrian access between the Bonleaf land and the area west of it. This has now occurred and a section 173 agreement has been executed and registered on title (AM977913A).
2. Section 4 of DDO20 requires building and works to address design requirements that include:

• Building facades should incorporate articulation, generous window areas and a variety of building materials to activate the Lower Dandenong Road frontage.
• Development must incorporate the following design elements to enhance safety in public areas; (as appropriate)
  • Active frontages;
  • Buildings should be orientated and design to provide passive surveillance opportunities from upper levels; and
  • Provision of an adequate external lighting
• Residential development on the site should be designed to:
  • Provide a transition in height towards adjoining lower scale areas;
  • Be contemporary in style to complement the form and style of existing elements on the site;
  • Minimise overshadowing of adjoining land.

• The site layout must include internal pedestrian connections that:
  • Are designed to be attractive places to walk and maximise pedestrian ease;
  • Provide efficient routes between key elements of the centre.
  • Are integrated with external pedestrian connections.

1. Mr Doig for TPSC suggested that any analysis of urban design and built form should evolve from an analysis of use, movement and built form. Mr Doig also said that the public realm within an activity centre should be afforded a high priority in any design analysis. We generally agree with these principles.
2. Mr Doig provided the Tribunal with some alternate layouts based on his assessment, however we have not found those to be useful in our assessment of this proposal. We felt that whilst Mr Doig raised some legitimate concerns about aspects of the proposal, however his alternatives probably raised as many questions as they answered. This is not to be critical of Mr Doig, but merely recognises that there can be different valid approaches to the urban design of this site. Whatever approach is adopted, a proposal must produce an acceptable outcome based on the individual circumstances of a site.
3. Mr Sheppard for Bonleaf, emphasised that a strong urban design outcome was achieved through the creation of the long linear pedestrian pathway along the eastern boundary of the site. Mr Sheppard suggested that the activation along this pathway, through its abuttal to the bottle shop, supermarket and café, through clear glazing along both the bottle shop and supermarket frontages or abuttals combined with its weather protection via an awning arrangement, resulted in a typical "street like" environment.
4. We support and encourage the external pedestrian path link along the eastern boundary and agree it will assist in movement around and within the site.
5. Mr Sheppard suggested the width of the awning along this pathway should be increased to a minimum of 3.5m to ensure effective weather protection for pedestrians and we agree with that recommendation.
6. However, having regard to the DDO objectives and design guidelines, particular as related to pedestrian movement and integration, we have some serious concerns in respect of how the proposal has evolved.
7. While Mr Sheppard suggested that movement from the commercial and retail tenancies around the forecourt fronting Lower Dandenong Road can be integrated with the balance of the development through the pedestrian connection around and through the café, we do not share his enthusiasm for that outcome.
8. We are genuinely concerned that the forecourt area fronting Lower Dandenong Road will have difficulty in being an active public area.

1. Our concerns result from the fact that this area is remote from the car park and difficult to get to with nothing really attracting patrons in that direction or to that area. Nor is there a convenient integration with Lower Dandenong Road given the level differences between the footpath and the forecourt area.
2. The abuttal to Lower Dandenong Road has a low amenity given the high volumes of traffic along that road and the site's abuttal to two car parking areas either side, which service uses that are located some distance away from the car parking areas.
3. It appears to us that neither residents nor visitors are likely to utilise this area given there is no parking possible on Lower Dandenong Road and no parking availability within the site in close proximity to this area. We note all dwellings are accessed directly from the respective basement parking areas and there is literally no need for people to enter the forecourt area.
4. Our concerns about the isolation and remoteness of the forecourt were also reflected by Mr Doig in his evidence.
5. It is clear to us that the two key activity anchors in this proposal are likely to be the supermarket and the bottle shop.
6. In terms of the supermarket, there is likely to be only one entrance located just above the travelators leading from the basement car park at the southern end of the Lower Dandenong Road building. There is nothing to draw people to the forecourt area. In our view, not even a café is likely to be a successful drawcard against this isolated arrangement in the forecourt.
7. We consider that there has to be a fundamental rearrangement of the ground floor areas of the Lower Dandenong Road building. We are of the view that the supermarket needs to be the anchor drawing pedestrians and shoppers towards the northern part of the building and that retail and other commercial uses should be located around this pedestrian link. Obviously the café should complement the supermarket pedestrian link.
8. The pedestrian access to the basement is the other drawcard towards the southern end of the Lower Dandenong Road building. This, together with the pedestrian link to the east to the TPSC land, need to be the southern focus of the northern Lower Dandenong Road building.
9. Further, the concerns we have expressed about the forecourt apply to the commercial tenancies located towards the western end of the building. These are very isolated and have limited exposure to pedestrian traffic or visual exposure to Lower Dandenong Road.
10. As mentioned previously, we have no concerns with the proposed height of the building or its general mix of uses. Rather, our concerns are focussed towards the way pedestrian movement within the Lower Dandenong Road building is arranged.

1. We also have concerns about the proposed loading and unloading facilities, particularly for the bottle shop and for the residential tenancies. With a total of some 241 dwellings, there will be constant demand by removal vans to shift residents in and out of apartments and for deliveries to apartments. This concern about the need to provide practical and accessible access for loading and unloading facilities for residents applies to both buildings. We address these concerns in more detail under the heading of Car Parking and Access later in these reasons.
2. Given the complexity of this application we believe it is appropriate to provide the opportunity to the permit applicant to modify its plans to address the issues raised above. The extent of redesign likely to be required, means the applicant should be given adequate time to formulate its response and then an opportunity for other parties to comment. We set out the sort of changes we seek later in these reasons.

1. Parking for the proposed mixed use development is in accordance with the provisions of clause 52.06. That is, the provision of 446 car spaces satisfies the statutory requirement pursuant to that clause. As such, no permission or exercise of discretion by the Tribunal is required in respect of the numerical number of car spaces provided for this development.
2. In our view the arrangement and provision of car parking is generally satisfactory. The provision of discrete accessways to what are effectively independent residential towers is, in our view, an acceptable outcome. The provision of a dedicated accessway and the provision of both retail and commercial, and visitor car spaces via the central common accessway through the TPSC site is again, in our view, an appropriate outcome. The provision of 164 car spaces in this basement 1 level car park caters for a mix of uses, which we believe will provide adequate and convenient parking for those wishing to utilise the retail and commercial uses on the site as well as visitor car parking for the residential apartments in both residential buildings.
3. The provision of the access to this basement together with the provision of the main pedestrian access to the TPSC site will, in our opinion, assist in the integration of the two centres.
4. We are satisfied, despite the submissions made on behalf of TPSC to the contrary, that the provision of car parking in a basement arrangement in this location is an acceptable outcome. We believe that patrons wishing to use the services available within the development as a whole will take advantage of the availability of car parking within the basement level.
5. We noted on our inspection of the site and surrounding area how well utilised the existing TPSC car park was.

1. We believe that given the ease of parking within the basement, patrons visiting the activity centre will utilise the basement car parking area and that parking availability will be viewed by patrons in a holistic manner, just as one may expect it to be in an activity centre.
2. We further note that the parking arrangement in this proposal is not dissimilar to that shown in the previous Bonleaf permit for the Bonleaf land. We note the pedestrian linkage location is similar. Whilst we accept the Bonleaf permit plans were never endorsed, the permit application plans show the basement level being slightly below the equivalent of the TPSC land at the southern entry to the car park, however because the TPSC land rises to the north, the Bonleaf car park is essentially 3m below the TPSC land adjoining the northern part of the site near the Lower Dandenong Road abuttal.
3. Ms Dunstan, for Bonleaf, gave evidence that the multi-purpose provision of car parking in basement 1 will make a positive contribution to the provision of parking within the activity centre as a whole. In her opinion, provision of residential visitor parking at this level will lead to a generous supply of parking noting that the peak demand periods for the different uses catered for within the level 1 basement do not coincide.
4. This means that more of the residential visitor spaces will be available to commercial car parking patrons during the day as visitor demands generally peak in the evening. Conversely there will be plenty of visitor parking available in the evenings when the commercial vehicle parking demand will be lower.
5. Loading bay provisions for the centre generally occur within the area between the north and south building forms. Access to the retail loading areas is proposed via the TPSC accessway and enters via the same location as the basement 1 accessway. Loading vehicles will then travel along a dedicated accessway in a one way route to the loading area, located at the rear of the buildings in-between the two building forms. Vehicles can then proceed to exit in a one way direction onto Nepean Highway service road.
6. While we accept this arrangement may work successfully for the major tenants of the proposal, we express some concern in respect of the bottle shop facility and, in particular, the facility for loading and unloading requirements relating to the residential tenancies.
7. With the north tower proposing 157 dwellings and the southern tower comprising 84 dwellings, we consider a better integrated loading and unloading facility should be made available. The loading facility for the residential tenancies needs to be in position with convenient access to all residential lift wells.
8. Thus, although Ms Dunstan was generally satisfied with the car parking arrangement, it was clear to us some minor refinements may be required.

1. Such refinements could be achieved by condition. However, given we are proposing to provide the applicant with an opportunity to address some of our concerns about broader design issues via amended plans, it would be appropriate to deal with these loading issues in that amended proposal.

1. As detailed earlier in these reasons we believe in this particular application it is appropriate to provide an opportunity to the permit applicant to modify the application plans to address the concerns we have expressed in these reasons.
2. We consider it is inappropriate to require the changes to occur as a consequence of permit conditions, as we consider it appropriate given the range of changes proposed, that we evaluate any amended plans and that both responsible authority and TPSC be given the opportunity to make any submissions in respect of the amendments made.
3. We state at the outset that this is not an opportunity for a complete transformation of the application plans and that we consider the range of uses, the floor areas proposed, the built form in terms of scale and bulk, and the location of the pedestrian and vehicular access via the TPSC land will be generally maintained as consistently as possible to the current application plans.
4. We also do not propose to be prescriptive about the changes required, however we want to be very clear on the objectives that should be achieved in any amended plans.
5. The matters we require to be addressed in any amended plans include the following.

As stated in these reasons we do not accept that the forecourt public realm concept of the front of the Lower Dandenong Road building as proposed, will be a successful public space given its lack of integration with the balance of the proposal at ground level.

We believe the ground level needs to be reworked to locate the retail/supermarket anchor at the northern end of the building to draw patrons to that end of the building from the basement carpark pedestrian entry.

We believe the office/commercial uses and the café need to be re-located along the key pedestrian route or access way leading to this anchor.

In our opinion this may result in the supermarket being located partially along the western internal portion of the building and other uses effectively being provided with dual frontages to both the internal and eastern external pedestrian path.

The forecourt area itself needs to be reutilised for either a porte cochere or loading and unloading arrangement with perhaps some home office type residential uses fronting this area.

The travelators need to remain at the southern end of the building, however it may be appropriate to better celebrate this area and its connection with the TPSC pedestrian access way.

On both buildings there needs to be a better integration of the loading facilities for the bottle shop and more importantly for the residential apartment needs.

On the northern building the porte cochere may double as a loading and unloading facility and short term parking however whatever the situation is the outcome sought is an arrangement where loading and unloading is located in a position which is convenient and accessible to the lift wells servicing the residential apartments.

The loading/unloading for the bottle shop also needs to be better resolved to avoid any potential conflict with the loading needs of other facilities on the site.

As stated previously we are generally comfortable with the carparking arrangement provided, although it was clear during the course of the hearing that some refinement should take place and we consider it appropriate that that be addressed in the amended plans.

1. At this stage, we do not intend to deal with permit conditions. The council and Bonleaf have largely resolved their differences about conditions in the context of the section 80 application to review conditions. We will leave the consideration of conditions until we receive amended plans.

SECTION 173 AGREEMENT

1. The section 173 agreement is registered on both the Bonleaf land and the TPSC land (referred to in the agreement as the Fabcot land[6]).
2. The section 173 agreement was an integral part of the decision to adopt Amendment C81 to rezone the land, to introduce and apply DDO20, and to issue the TPSC permit and the Bonleaf permit. Fabcot and Bonleaf were the joint proponents of Amendment C81 and respective planning permit applications, which sought permission for the integrated development of Thrift Park as a Neighbourhood Activity Centre. Bonleaf sought permission for use and development of the Bonleaf land for two mixed use buildings including 40 dwellings and a reduction in car parking requirements, whilst Fabcot sought permission for use and development of the TPSC land for the purposes of a supermarket, specialist retail tenancies and at grade car parking.
3. On 26 October 2009, council, Bonleaf, Fabcot and Roads Corporation entered into agreement AH049451J (the agreement). The agreement provided for, inter alia, the joint development of Thrift Park Activity Centre, shared parking and access arrangement between the Bonleaf land and the TPSC land, payment for traffic infrastructure, restrictions on leasable floor area applicable to the Bonleaf land, regulation of telecommunications facilities and environmental audit obligations.
4. The agreement sets out the background to the agreement in some detail. In the background, it sets out that the parties have agreed to enter into this agreement to:

- arrangements in relation to the future construction, use and ongoing maintenance of the car parking and access roads and paving areas beyond the boundaries of the Fabcot Land and Bonleaf Land;

- the construction and funding of new access arrangements (including traffic signalisation devices) to the Bonleaf Land and Fabcot Land from the Nepean Highway;

- payment of appropriate monetary contributions from each of Bonleaf and Fabcot towards local road works to be carried out by Council in Long Street;

- integrated vehicular and pedestrian access arrangements between the Bonleaf Land and Fabcot Land;

- an environmental audit to be undertaken on the Fabcot Land in the event that the land is proposed to be developed for a sensitive use in the future;

- an environmental audit to be undertaken on the Bonleaf Land in the event that a preliminary site assessment provides that the Bonleaf Land is not fit for purpose or the intended development and/or use;

- shared car parking arrangements on both the Bonleaf Land and the Fabcot Land; and

L.2 achieve and advance the objectives of planning in Victoria and the objectives of the Planning Scheme in respect of the Fabcot Land and the Bonleaf Land.

L.3 give effect to the requirements of the planning permits referred to in introductory clauses F and G above.

1. The agreement then sets out details about the following:
   • The provision of and payment for local road works (clause 3).
   • The provision of integrated vehicular and pedestrian access arrangements (clause 4) as follows:
     1. Integrated Vehicular and Pedestrian access arrangements

4.1 Council and Fabcot agree that Fabcot must provide any occupants of or visitors to the Bonleaf Land with free and unimpeded vehicular and pedestrian access:

4.1.1 through the Fabcot Land to the Nepean Highway and to Lower Dandenong Road; and

in accordance with the access arrangements depicted on any plans approved pursuant to planning permit number KP374/08 [Bonleaf permit] and otherwise to the satisfaction of VicRoads and Council.

• Car parking arrangements (clause 5).
• Major promotional signs (clause 6).
• Telecommunication facilities (clause 7).
• Loading Bay (clause 8).
• Development of the Activity Centre Land (clause 9).
• Restriction on leasable floor area for shop (clause 10).
• Environmental Audit (clause 11).
• Traffic Works (clause 12)[7]. The traffic works and payment for them and the other obligations set out under clause 12 have been carried out by Fabcot and Bonleaf under the agreement. Signalised access points have been provided to the Activity Centre Land via the Fabcot land from Lower Dandenong Road and Nepean Highway. Bonleaf and Fabcot paid equally for the traffic works in accordance with the provisions of clause 14.
• Public Works (clause 13).
• Arrangements between the Developer (clause 14), which provides for payment by Fabcot and Bonleaf for the traffic works and other obligations under the agreement.
• Further obligations of the Owner (clause 15).
• Agreement under Section 173 of the Act (clause 16), which provides:

Council and the Developer agree that without limiting or restricting the respective powers to enter into this Agreement and, insofar as it can be so treated, this Agreement is made as a Deed pursuant to Section 173 of the Act, and the obligations of the Developer under this Agreement are obligations to be performed by the Developer as conditions subject to which the Activity Centre Land may be used and developed pursuant to the Planning Permits.

• General matters (clause 19), including Severability (clause 19.4), which provides:

If a court, arbitrator, tribunal or other competent authority determines that a word, phrase, sentence, paragraph or clause of this Agreement is unenforceable, illegal or void then it must be severed and the other provisions of this Agreement will remain operative.

• Ending of Agreement (clause 21), which provides:
  1. Ending of Agreement

21.1.1 in relation to the Bonleaf Land, the owner of the Bonleaf Land for the time being and Council agreeing to end this Agreement or any part of it;

21.1.2 in relation to the Fabcot Land, the owner of the Fabcot land for the time being and Council agreeing to end this Agreement or any part of it;

provided that alternative arrangements are first put into place to the satisfaction of Council in respect of the obligations in clauses 4.1, 5.1, 5.2, 14 and 15.3.1 of this Agreement and provided that the obligations of the relevant Developer as set out in clauses 12 and 14.4 have been satisfied.

21.1.4 when the parties mutually agree that this Agreement is at an end.

1. The section 173 agreement is the subject of applications P636/2016, P817/2016 and P818/2016 by TPSC.
2. As previously noted, Fabcot developed the TPSC land under the TPSC permit, but no plans were ever endorsed under the Bonleaf permit and it subsequently expired.
3. TPSC was an objector to Bonleaf's current planning permit application KP650/2014 for development of the Bonleaf land and is a party to both applications P2542/2015 and P2673/2015 regarding the planning merits of this permit application.

Application P817/2016 - 'in-principle' support to end or amend the agreement

1. In December 2015, pursuant to section 178A(i)(a) or (b) of the Planning and Environment Act 1987, TPSC sought council's 'in-principle' support to either end or amend the agreement insofar as it relates to the TPSC land.
2. In February 2016, council refused to provide 'in-principle' support to end or amend the agreement. TPSC then requested council to provide it with reasons for its decision not to provide 'in-principle' support for ending or amending the agreement insofar as it relates to the TPSC land. In March 2016, council refused to provide reasons for its decision not to provide 'in-principle' support to end or amend the agreement.
3. With respect to the application by TPSC for council's 'in-principle' support to end or amend the agreement, section 178A relevantly provides as follows:

(1) An owner of land ... may apply to the responsible authority for agreement to a proposal -

(a) to amend an agreement in respect of that land; or

(b) to end an agreement in respect of that land, wholly or in part or as to any part of that land.

1. Section 178B sets out matters to be considered in considering a proposal to amend or end an agreement.
2. The scheme provided for in the Act is that if an application is made under section 178A and the responsible authority agrees with the proposal in principle, the responsible authority must give notice of the proposal to all parties to the agreement and any other persons, if the responsible authority considers that the decision to amend or end the agreement may cause material detriment to them (section 178C). There is then provision for persons given notice to object or make submissions (section 178D) to the responsible authority after which the responsible authority may make a decision to end or amend the agreement (section 178E). Notice of the decision must be given (section 178F) and there is an opportunity for a right of review to the Tribunal in respect of the responsible authority's decision to end or amend the agreement (sections 184A - 184G).

1. However, all this process is dependent upon the council's initial 'in-principle' agreement to amend or end the agreement pursuant to section 178A. If the council refuses to give its in-principle agreement to amend or end the agreement, there is no right of review by an applicant or other recourse available to end or amend an agreement when the council does not agree.
2. Application P817/2016 is an application by TPSC under section 149B of the Act for declarations that council failed to lawfully consider TPSC's request for in-principle agreement pursuant to section 173A(1) of the Act in terms that:
   1. Council failed to consider each and every matter specified in section 178B(2);
   2. Council failed to provide reasons for its decision in circumstances where it was obliged to provide such reasons; and
   3. Council failed to make the only decision that was open to it and, by refusing or failing to do so, acted irrationally.
3. At the commencement of the hearing, the council conceded that it had not properly considered the application by TPSC for in-principle agreement to amend or end the agreement pursuant to section 178B of the Planning and Environment Act 1987.
4. Accordingly, the council advised that it would reconsider the application according to law. This means, in effect, that application P817/2016 is resolved by consent. A declaration will be made that the council consider the request in accordance with the provisions of section 178B of the Act. However, we decline to give any indication of our support or otherwise of the merit of the request by TPSC.

1. At the same time that it requested council for in-principle support to end or amend the agreement, TPSC separately requested that council consent to release TPSC from the obligations contained within clause 5.1 of the agreement. The council failed to provide a response to this request to release TPSC from the obligations contained within clause 5.1 of the agreement
2. Clause 5 of the agreement deals with reciprocal car parking arrangements for both the TPSC land and the Bonleaf land as follows. It is a key element of the agreement.
   1. Car parking arrangements

5.1 The parties agree that upon the completion of Development of the Fabcot Land under planning permit number KP375/08 Fabcot must make all car parking spaces available at all times to the general public including any visitors to the Bonleaf Land unless Fabcot obtains the prior written consent of Council, which consent may be withheld in Council's absolute discretion.

5.2 The parties agree that upon the completion of Development of the Bonleaf Land under planning permit number KP374/08 Bonleaf must make all car parking spaces other than Resident Parking Spaces and Tenant Parking Spaces available at all times to the general public including any visitors to the Fabcot Land unless Bonleaf obtains the prior written consent of Council, which consent may be withheld in Council's absolute discretion.

1. TPSC seeks secondary consent pursuant to clause 5.1 to release it from its obligation to make car parking spaces on the TPSC land available to any visitors to the Bonleaf land. This request for secondary consent under the provisions of clause 5.1 of the agreement is the subject of application P818/2016 by TPSC under section 149(1)(b) of the Act to review the council's failure to consent to TPSC's request to not be required to "make all car parking spaces available at all times to the general public including visitors to the Bonleaf land" as required under clause 5.1 of the agreement.
2. For the reasons we set out below in our consideration of the section 173 agreement, we do not support this request for secondary consent. Accordingly, we determine that application P818/2016 should be refused.

1. The other application by TPSC concerning the section 173 agreement is application P635/2016. TPSC seeks a declaration under section 149A(1A) of the Act that the agreement expires on 26 October 2016.[8]
2. TPSC relies on clause 9.1 of the agreement in its application for declaration under section 149A(1A). Clause 9 states:
   1. Development of the Activity Centre Land

9.1 Other than for the current use for which existing use right apply, subject to this clause 9.2 and 9.3 of this Agreement regardless of any rights conferred by the Planning Scheme or the Act, the use and development of the Activity Centre Land must be generally in accordance with the use and development depicted in the plans endorsed under planning permit numbers KP375/08 and KP374/08 (Planning Permits) whether or not the Planning Permits have expired, for a period of 7 years.

9.2 Council may consent to a change to the development as required to be maintained under clause 9.1 of this Agreement where Council is satisfied that:

9.2.1 any changes to the buildings are of a high urban design standard;

9.2.2 the changes do not materially increase the total leasable floor area in the opinion of Council; and

9.2.3 the development will not increase the car parking requirements.

9.3 Notwithstanding clause 9.1 and 9.2 of this Agreement but subject to clause 10.1 any part of the Activity Centre Land and the buildings constructed on the Activity Centre Land may be used for an alternative use specified in section 1 of the Business 1 zone provided any other requirements of the Planning Scheme and this Agreement are met.

1. The date of 26 October 2016 is 7 years after the agreement was entered on 26 October 2009.
2. We reject TPSC's contention that the whole agreement expires on 26 October 2016.
3. On the plain reading of clause 9.1, the expiry date only relates to those obligations in clause 9.1. The expiry provision does not apply to the balance of the agreement. If the intention of the agreement was to include a self-executing ending to the whole agreement in the form of the expiry date, the drafting of the agreement would have made that very clear. Rather, the expiry date in clause 9.1 refers to the ongoing obligations imposed on the Activity Centre Land to be used and developed only in accordance with the TPSC permit and the Bonleaf permit, whether or not the permits have expired, for a period of 7 years until 26 August 2016. The expiry provision does not apply to the balance of the agreement. Each of the other clauses and obligations in the agreement are ongoing. This is evidenced by clause 21, which provides for ending the agreement.
4. Clause 21 provides that before ending the agreement, alternative arrangements must be put in place in respect of various obligations under the agreement. Clause 21.1 provides:

21.1.1 in relation to the Bonleaf Land, the owner of the Bonleaf Land for the time being and Council agreeing to end this Agreement or any part of it;

21.1.2 in relation to the Fabcot Land, the owner of the Fabcot land for the time being and Council agreeing to end this Agreement or any part of it;

provided that alternative arrangements are first put into place to the satisfaction of Council in respect of the obligations in clauses 4.1, 5.1, 5.2, 14 and 15.3 of this Agreement and provided that the obligations of the relevant Develop as set out in clauses 12 and 14.4 have been satisfied.

21.1.4 when the parties mutually agree that this Agreement is at an end.

1. Accordingly, the application for a declaration by TPSC that the agreement expires on 26 October 2016 is refused.

Relevance of section 173 agreement to planning permit application

1. The specific issues that must be resolved in connection with the two outstanding applications concerning the section 173 agreement are:
   • Whether the agreement as a whole expires on 26 August 2016 pursuant to clause 9.1 of the agreement.
   • Whether consent should be given pursuant to clause 5.1 of the agreement to TPSC's request to not be required to "make all car parking spaces available at all times to the general public including visitors to the Bonleaf land". In other words, whether TPSC should be permitted to block access to its car park by anyone visiting the Bonleaf land.
2. In addition, when considering whether to grant a planning permit for the Bonleaf land, section 60(1A)(i) of the Planning and Environment Act 1987 provides that:

(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider - ...

(i) any agreement made pursuant to section 173 affecting the land the subject of the application; and

1. TPSC says that when the section 173 agreement is considered in the context of deciding on the Bonleaf planning permit application, the following factors are relevant:
   • The agreement is not binding on TPSC or alternatively certain clauses are not binding on TPSC. TPSC therefore has no obligation to provide Bonleaf with free and unimpeded access to the Bonleaf land through the TPSC land.
   • The agreement is binding on Bonleaf and therefore requires development to be in accordance with the Bonleaf permit.
   • TPSC is required to consent to the development and it does not consent or does not consent to the development in its current form.
   • The application for permit is therefore 'futile', and should be rejected on this basis.
2. TPSC says that the agreement is not binding on TPSC because it is not made 'under seal' as required by section 174(1) of the Act.

1. Even if the terms of the section 173 agreement are enforceable against TPSC, TPSC nevertheless says it is not bound to provide Bonleaf with vehicle and pedestrian access through its land pursuant to clause 4 of the agreement because:
   • TPSC is only bound to provide access "in accordance with the access arrangements depicted on any plans approved pursuant to planning permit No KP374/08 [ie the Bonleaf permit] and otherwise to the satisfaction of Vic Roads and the council".
   • No plans have been approved pursuant to the Bonleaf permit.
   • Even if it could be said that the plans submitted with the application for the Bonleaf permit have "been approved" pursuant to the Bonleaf permit, the access arrangements as shown in the current permit application by Bonleaf do not accord with the Bonleaf 2008 permit application plans. In particular, according to TPSC, the current permit application shows basement car parking for customers as opposed to the at-grade customer car parking shown in the Bonleaf 2008 permit application plans.
2. Leaving aside the terms of the section 173 agreement and what TPSC says about the lack of access, TPSC also says that the Bonleaf permit application requires TPSC's consent and agreement to various aspects of the proposed design. As the plans currently stand, TPSC says it would have to agree to:
   • Remove the landscape treatment along the western boundary of its land.
   • Bonleaf undertaking the "threshold landscaping" shown on the current plans (and which is in part on the TPSC Land).
   • Install the proposed pedestrian crossing in the location shown.
   • The installation of grading fill, and works generally to facilitate the entry to the proposed underground car park/loading bays.
   • Works being undertaken on the TPSC land (and in circumstances where those works would affect access to the Woolworths supermarket and specialty shops on the TPSC land, and therefore the profits of TPSC's tenants).
3. Further, TPSC says that the proposed Bonleaf development includes a north south pedestrian pathway as a key element of the design. This appears to include east west access between the car park on the TPSC land and the pathway, and at regular intervals. TPSC could prevent this key element of the design from being achieved by constructing a fence along the western boundary of its land and adjacent to that pedestrian pathway. The construction of a fence in this location would not require a planning permit (see clause 62.02-2 of the planning scheme). According to TPSC:

... TPSC will erect the fence if the Proposed Development is approved, given the nature of the Proposed Development, and its strident opposition to it.

1. TPSC's position is that any proposal to develop the Bonleaf land that seeks to achieve integration with the TPSC land requires TPSC's consent and agreement. TPSC does not agree to accommodate Bonleaf's wishes. In particular, it is concerned that the concept for the Bonleaf land is a radical departure from the proposal shown in the 2008 Bonleaf permit application plans.
2. TPSC states that it is stridently opposed to the proposed development. It does not and will not provide its consent, or agree to do anything to allow the proposed development to proceed. Nor can TPSC be compelled to provide its consent, or its agreement, so that the proposed development can proceed. In the circumstances, the proposed development is futile and should be rejected on that basis. Further, TPSC says it is premature to approve the proposed development (or indeed any form of development on the Bonleaf land) until such time as an agreement is reached with TPSC, which allows the proposed development to proceed by, amongst other things, providing Bonleaf with access to the Bonleaf land via the TPSC land.

1. We reject the submission by TPSC that consideration of the planning permit application by Bonleaf is futile and should be rejected because the agreement is not binding on TPSC. Despite the various submissions made by TPSC on this point, the Tribunal has no jurisdiction to make a declaration about the validity of the section 173 agreement under either section 149A or section 149B of the Planning and Environment Act 1987.
2. Whilst the Tribunal may determine a matter relating to the interpretation of an agreement under section 173 pursuant to section 149A(1A), we do not consider that making a declaration or ruling that a section 173 agreement, which has been purportedly executed in accordance with the Act and registered on title, is not a valid or binding agreement within the framework of the Act is a matter relating to the interpretation of the agreement. In our view, any such declaration could only be made by the Supreme Court.
3. So far as the Tribunal is concerned, the agreement is expressed to be made under seal in accordance with section 174(1) of the Act and the Registrar of Titles has made a recording of the agreement in the Register pursuant to section 181 of the Act. In these circumstances, we consider that we should not look behind the fact of the recording to question the validity of the agreement or the extent to which parties are bound contrary to what appears on the face of the agreement.

1. We consider that the Tribunal and parties to the agreement are entitled to rely upon section 182(a) that after the making of a recording in the Register, the burden of any covenant in the agreement runs with the land affected. In this respect, and when interpreting the agreement, the Tribunal and the parties are entitled to rely upon the provisions of clauses 2.8 and 2.9, which provide:

2.8 The obligations of Fabcot under this Agreement, will take effect as separate and several covenants which are annexed to and run at law and equity with the Fabcot Land until the Agreement ends.

2.9 The obligations of Bonleaf under this Agreement, will take effect as separate and several covenants which are annexed to and run at law and equity with the Bonleaf Land until the Agreement ends.

1. We consider that when interpreting the agreement, regard must be had to the overall intent and purpose of the agreement. This includes the introductory clauses to the agreement, which clause 2.7 provides "are and will be deemed to form part of this Agreement." We have previously noted that the introductory clauses to the agreement set out in detail the background to Amendment C81 and the two permit applications, and the purpose of the agreement. In particular, we note that these purposes include:

- integrated vehicular and pedestrian access arrangements between the Bonleaf Land and Fabcot Land;

- shared car parking arrangements on both the Bonleaf Land and the Fabcot Land.

1. In our view, the position advanced by TPSC in terms of seeking to remove its obligation to provide vehicular and pedestrian access through its land to the Bonleaf land under clause 4 or to release it from its obligations to provide its car parking spaces to the general public, including visitors to the Bonleaf land pursuant to clause 5.1, is incompatible with the overall purpose and intent of the agreement.
2. The fundamental principle underlying the agreement is that the Bonleaf land and the TPSC land would be redeveloped in an integrated way, including vehicular and pedestrian access arrangements and shared car parking arrangements. At the time the agreement was entered, it was contemplated that this redevelopment would take place generally in accordance with the design and layout shown on the 2008 plans for the Fabcot permit application[9] and the Bonleaf application[10].

1. We consider that the intent of clause 9 (Development of the Activity Centre Land) was that for a period of seven years both the TPSC land and the Bonleaf land could only be used or developed generally in accordance with those plans, whether or not the planning permit expired. In other words, we do not consider that the Bonleaf land could have been used or developed in accordance with the current permit application by Bonleaf prior to 26 October 2016. Prior to this date, the council could consent to a change to the development as required to be maintained under clause 9.1 subject to certain criteria. Also, pursuant to clause 9.3, but subject to clause 10 (restriction on leasable floor area for shop on the Bonleaf land), the Bonleaf land could be used for any alternative section 1 use of land, subject to the requirements of the planning scheme and the agreement.
2. However, we interpret clause 9 to mean that after 26 October 2016, both the Bonleaf land and the TPSC land may be used or developed for the other purposes or in other ways provided any other requirements of the planning scheme and the agreement are met.
3. This interpretation is supported by the definition of development in the agreement, which provides:

Development means the construction of a building and the carrying out of works pursuant to any planning permit issued by Council in respect of either the Bonleaf Land or the Fabcot Land including but not limited to the construction of buildings and works depicted in the plans endorsed under planning permit numbers KP375/08 or KP374/08 (Planning Permits).

1. In other words, development is not limited to the development approved under the Fabcot permit or Bonleaf permit.
2. We therefore find that it is open to Bonleaf to use or develop the Bonleaf land for something quite different to that contemplated in the original Bonleaf permit so long as those other requirements set out in the agreement of an ongoing nature are met. They include:
   • Restriction on leasable floor area for shop as set out in clause 10.
   • Integrated vehicular and pedestrian access arrangements must be generally in accordance with the access arrangements associated with the Bonleaf permit as required by clause 4.
   • Car parking on the Bonleaf land and the TPSC land must be shared and available to visitors to the Bonleaf land, TPSC land and the general public (clause 5).
   • Loading or unloading of trucks on the Bonleaf land is restricted to trucks not exceeding 12.5 metres in length without consent of council (clause 8).
3. We consider that the proposed planning permit for the Bonleaf land will continue to meet these requirements.
4. With respect to each of these requirements, we note as follows.
5. The combined leasable floor area for all shops under the proposed permit is 2,442m2. No shop exceeds 1400 square metres. (The supermarket is 1184m2and the bottle shop is 865m2). We therefore find that the requirement of clause 10 continues to be met.
6. The loading and unloading arrangements are based on a maximum size delivery vehicle of 12.5m long trucks and this will be embodied in a permit condition. We therefore find that the requirements of clause 8 are met.
7. With respect to integrated vehicular and pedestrian access arrangements, the 2008 Bonleaf permit application plans showed that car parking access to the Bonleaf land would be created at approximately the same position as proposed in the current application plans. Access from Nepean Highway will be provided in the same location as currently proposed. Details of access over the TPSC land to Lower Dandenong Road was not shown explicitly on the 2008 Bonleaf plans but was shown on the 2008 Fabcot plans. We find there is no difference between the proposed vehicular and pedestrian access arrangements between the 2008 plans and the current plans in terms of location of access points or accessways over the TPSC land.
8. The main difference, and the one so stridently opposed by TPSC, is that whereas on the 2008 Bonleaf plans car parking on the Bonleaf land was shown as provided on two levels at basement level and ground floor level, the proposed parking in the current plans will be provided in three basement level car parks. The two lower basement levels will serve the residential and commercial uses and only be accessed from separate entry points on Nepean Highway and Lower Dandenong Road. Car parking in basement level 1 will serve the commercial and retail uses, and residential visitors. It will be accessed via a ramp down from a point in a very similar location to the proposed ramp down to the ground floor car park shown on the 2008 Bonleaf plans.
9. Although the 2008 Bonleaf plans show a car park with one third of the total car parking spaces (105 spaces) at ground floor level, the 2008 Fabcot plans show that this ground floor car park would be lower than the at grade car park on the TPSC land (Fabcot land)[11]. This slope down is due to the difference in levels between the TPSC land and the Bonleaf land. We also note that two thirds of the car parking spaces (207 spaces) to be provided on the Bonleaf land were to be provided in a basement level.
10. TPSC appears to be of the view that in some way car parking spaces provided at ground level are more attractive than car parking spaces provided in a basement. It appears to believe that car parking on the Bonleaf land in accordance with the 2008 Bonleaf plans would provide more convenient car parking that was more accessible by pedestrians using the supermarket on the TPSC land than what is currently proposed. TPSC considers that:

Bonleaf is not providing its fair share of car parking, and the reality is that the TPSC car parks will be used in preference to the Bonleaf car parks, and even when customers are visiting the facilities on the Bonleaf land. This will increase the demand for the car parks on the TPSC land.

1. No evidence was provided by TPSC to substantiate this assertion. In any event, we consider that the apparent desire by TPSC to maintain a model of only supplying car parking for supermarkets at-grade ignores good urban design principles and jeopardises achieving the sort of high amenity, enlivened activity centre envisaged by DDO20. Whilst a supermarket surrounded by a sea of at-grade car parking might once have been the norm, this model is now outdated. Far greater emphasis is now placed on reducing the dominance of cars and creating a more pedestrian friendly, active environment at ground level within activity centres. It is important to provide adequate parking for proposed uses, but this will be done in the proposed development. Bonleaf will provide the full complement of car parking spaces required under clause 52.06 and no permit for reduction of car parking is required under this provision.
2. In any event, TPSC has distorted the reality of what was proposed in the 2008 Bonleaf plans by representing the ground floor level as showing "105 at grade car parking spaces in an undercroft at ground floor level, and adjacent to the car park in the northern part of the TPSC Land."
3. This statement implies that these 105 car parking spaces would be visible from the TPSC land and hence be equally enticing to visitors to the TPSC land as the at-grade car parking spaces on the TPSC land. Our reading of the 2008 Bonleaf plans and Fabcot plans do not support this impression.
4. The east elevation of the Bonleaf development does not show an undercroft car park or indicate that the car parking spaces would be visible when looking at the elevation from the TPSC land. Rather, the ground floor Bonleaf car park would be screened from view along its east elevation by a charcoal colour finished block wall surmounted by a light grey concrete panel wall interspersed with blue glass windows and a lobby entrance to the proposed first floor level retail and fitness centre uses. Having regard to the Fabcot permit endorsed plans, the western at-grade car park would be separated from the Bonleaf building by a landscape strip planted with trees. On plan TP01 of the Fabcot endorsed plans, this landscape strip is shown as sloping down from the car park to the property boundary. On the landscape plan drawing No LDMP02 section A of the 2008 Bonleaf plans, the same landscape strip between the TPSC car park and the Bonleaf land is shown planted with trees, but the ground floor car park is shown and labelled as "underground car park" and the floor level of this car park would, of necessity be substantially lower than the car park on the TPSC land.

1. We acknowledge that these are conceptual plans but they illustrate the difference in levels between the TPSC land and the Bonleaf land and that whilst a car park is shown at ground floor level on the Bonleaf plans, it would be at least at semi-basement level by comparison to the TPSC land and would not be visible as a car park from the TPSC land.
2. Based on this analysis of the plans, we do not consider that TPSC can legitimately claim that in some way, the proposed provision of car parking on the Bonleaf land will disadvantage TPSC or visitors to the TPSC land. In contrast, we consider that the proposed car parking on the Bonleaf land will be just as accessible and attractive as the car parking that was proposed in the 2008 Bonleaf plans.
3. We acknowledge that in the drafting of clause 4 of the agreement it refers specifically to the obligations on Fabcot to provide free and unimpeded vehicular and pedestrian access through the Fabcot land "in accordance with the access arrangements depicted on any plans approved pursuant to planning permit No KP374/08 [Bonleaf permit] and otherwise to the satisfaction of VicRoads and council." We also acknowledge that no permit plans have ever been approved pursuant to the Bonleaf permit. However, we do not consider that this detracts from the obligation on TPSC pursuant to the agreement to provide access through the TPSC land to the Nepean Highway and to Lower Dandenong Road and through the TPSC land to the Bonleaf land for the following reasons.
4. The agreement is dated 26 October 2009. The Bonleaf permit was not issued until 9 December 2009. The agreement was made before the permit was issued but in contemplation of it. The 2008 Bonleaf permit application plans were known to all parties to the agreement. The agreement contemplated that permits would be issued in accordance with the permit applications. The conditions in the Bonleaf permit when it was issued required that endorsed plans must be substantially in accordance with the plans submitted with the application but modified to show certain things, none of which however change the car parking or the access location to the car park. It is not unreasonable that the agreement should have referred to plans approved pursuant to the Bonleaf permit rather than referring to access arrangements depicted on any plans forming part of the 2008 Bonleaf planning permit application.
5. We consider that the requirement in clause 4 of the agreement for integrated vehicular and pedestrian access arrangements means the arrangements shown on the plans forming part of planning permit application No KP374/04, which were assumed would become the approved plans pursuant to the permit to be issued in respect of such application. The fact that the plans were never endorsed under the permit does not alter the purpose or intent of the agreement. We are satisfied that the requirement in clause 4 for integrated vehicular and pedestrian access arrangements are met by the proposed permit.
6. With respect to car parking arrangements under clause 5, reciprocal obligations are cast upon TPSC and Bonleaf to make all car parking spaces on their land available at all times to the general public including any visitors to the other's land.
7. Again, we note that condition 5.2 refers to completion of development of the Bonleaf land under the Bonleaf permit. As the Bonleaf permit has expired, development under that permit will never be completed. However, as previously noted, the agreement contemplates that after a period of seven years, there may be use or development of the Bonleaf land that is not in accordance with the Bonleaf permit but is otherwise in accordance with the requirements of the planning scheme and the agreement. Clause 5.2 enables Bonleaf to obtain the prior written consent of council to alternative car parking arrangements for visitors to the TPSC land. In our view, the grant of the proposed planning permit would constitute such consent. We consider that the proposal to provide free access to all car parking in basement 1 to the general public and visitors to the TPSC land is a satisfactory arrangement that meets the purpose and intent of the agreement to provide shared car parking arrangements and both the Bonleaf land and the Fabcot land.
8. With respect to the request by TPSC for secondary consent to release TPSC from its obligations under clause 5.1 to make car parking spaces on the TPSC land available to any visitors to the Bonleaf land, we do not consider there is any basis to support giving such consent. We consider it would be totally contrary to the purpose and intent of the agreement to provide shared car parking arrangements on both the Bonleaf land and the Fabcot land. TPSC provided no evidence to support such consent being given. We also consider it would be incompatible with the intent of the balance of the agreement and clause 5.2, which still requires Bonleaf to make available its car parking spaces to the general public including all visitors to the TPSC land.
9. The council submits that whilst clause 5.1 enables the council to give its consent to a change in car parking arrangements on the TPSC land, the withholding of that consent is substantially unreviewable on the merits and only reviewable to the extent that legal error is disclosed.[12] Use of the words, "which consent may be withheld in council's absolute discretion", means that the council may withhold giving its consent and not be subject to review on the merits of its decision to withhold consent.
10. We agree with the council's interpretation that the giving of any secondary consent pursuant to clauses 5.1 or 5.2 is not reviewable on the merits. However, even if we are wrong about that and the consent is reviewable on its merits, we do not consider there is any merit in TPSC's request and it should be refused.
11. Overall, with respect to the car parking arrangements required under clause 5, we are satisfied that the proposed permit will meet the requirements of this clause.

Conclusion about consideration about section 173 agreement

1. In accordance with section 60(1A)(i) of the Act we have had regard to the section 173 agreement, which we consider that circumstances require us to do. We do not consider that the proposed permit application is contrary to the agreement. Rather, we consider it supports the purpose and intent of the agreement.
2. We accept the agreement as being a valid agreement and one that gives rise to continuing obligations on and benefits to both Bonleaf and TPSC. We consider that those obligations and benefits, especially relating to integrated vehicular and pedestrian access arrangements and shared car parking arrangements should form the basis of a consideration of the proposed layout and development.
3. We place no weight on TPSC's threats to construct a fence along the boundary between the TPSC land and the Bonleaf land or refuse consent to works on the TPSC land to facilitate development of the Bonleaf land. Such threats seem to us to be remarkably short-sighted and contrary to the best interests of TPSC to facilitate a development that will enliven the Thrift Park Activity Centre, increase its attraction as a place to visit and a place to live, all of which can only benefit the tenants of TPSC.
4. If TPSC continues to be obstructive, Bonleaf may need to seek enforcement of the agreement. It would be unfortunate if it came to that. However, the threats made by TPSC do not deter us from endorsing the proposal or our conclusion that it will be in accordance with the section 173 agreement and will implement its purpose and intent.

[1] The land included the TPSC land, Bonleaf land and several other parcels in the apex of the triangle between Nepean Highway and Lower Dandenong Road

[2] Planning permit application KP650/2014

[3] [2004] VCAT 1706

[4] [2005] VCAT 2718

[6] At the time the section 173 agreement was entered, the TPSC land was owned by Fabcot Pty Ltd (Fabcot). Following development of the Fabcot land with the Thrift Park Shopping Centre, Fabcot sold the TPSC land to TPSC. Whilst the section 173 agreement refers to the TPSC land throughout as the Fabcot land, we will continue to refer to it as the TPSC land.

[7] Traffic Works are defined in the agreement as follows:

Traffic Works means the traffic works VicRoads require Bonleaf and Fabcot to construct and carry out on the Nepean Highway and Lower Dandenong Road reservations and Activity Centre Land pursuant to clause 12 of this Agreement including the provision of:

(a) a signalised access point to the Activity Centre Land;

(b) associated service lane changes and access closures;

(e) any works necessary to ensure that any vehicle using an outer separator break on the Nepean Highway does not cross a left turn slip lane at the traffic signals;

(f) any mitigating roadworks (including traffic signalisation) required on Lower Dandenong Road as identified in the Relative Safety Risk Assessment; and

(g) removal of redundant crossovers from the Activity Centre Land to Lower Dandenong Road and the Nepean Highway service road.

149A Application by certain persons for declarations

(1A) A specified person or a party to the agreement may apply to the Tribunal for the determination of a matter relating to the interpretation of an agreement under section 173.

[11] Planning Permit No. KP375/08 endorsed plans TP01

[12] For example, on the base of Wednesbury unreasonableness