2 Pursuant to Section 83B of the Planning and Environment Act 1987, as delegate of the President of the Tribunal and on behalf of the President, it is directed that the Applicant shall give notice of this application in accordance with the attached directions:

* By giving notice to the owners and occupiers of land marked X on the plan attached.

* By placing a notice on the site on Couangalt Road. The notice on the site should draw specific attention to the fact that the motel on Lot 3 will be accessed from Winery Lane.

3 Prior to the hearing the traffic consultant for the applicant shall meet with Vic Roads' representative and shall prepare a statement of agreed facts and identify any issues in dispute. The applicant shall file the statement of agreed facts with the Tribunal 21 days before the hearing and serve on all other parties.

4 The matter will be listed for administrative mention on 30 June 2004. By that date each party must advise the Tribunal in writing:

* whether the matter is resolved or is proceeding to a hearing,

* that party's estimate of the duration of the hearing, and

* whether a further directions hearing or mention is requested.

1 This is an application under Section 79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to make a decision in permit application No: P203/0452 within the prescribed time for the land at Lots 1 & 3 Calder Highway - Berrie Road, Mt Aitken to be used and developed for the purpose of a `convenience facility and motel, car parking, variations to the car parking requirements of the Macedon Ranges Planning Scheme and to create access to a Road Zone, Category 2.'

2 The purpose of the directions hearing was to consider:

1 whether sufficient information has been supplied having regard to the Responsible Authority's request for an environmental management plan;

2 whether sufficient information has been supplied for the purposes of the Roads Corporation (Vic Roads);

3 whether the use, comprising a service centre in a Rural Living Zone on land in excess of 3500sq m is prohibited;

4 whether notice of the application for review should be given and if so, to what extent; and

5 any other matters that would expedite the hearing of this proceeding.

3 There was no contention about the additional information to be provided or advertising and orders have been made accordingly.

4 The main issue to be decided by me is whether the use of Lot 1, comprising a service centre in a Rural Living Zone on land in excess of 3600m2 is prohibited or, in particular, if the service station component of this use prohibited.

* A motel on Lot 3 PS 444739P, which fronts the Calder Highway but will be accessed off Winery Lane.

* A service centre on Lot 1 PS444739P, which will comprise:

- two small convenience restaurants (McDonald's and KFC) with drive through and waiting area

6 Lot 1 is irregular in shape with a total area of 3.53 hectares and the following boundaries:

The footprint of the proposed development is stated in the documents accompanying the permit application to be 730m2.

7 The service centre will be oriented towards Couangalt Road and the off ramp of the Calder Freeway. The off ramp of the freeway becomes Couangalt Road and the service centre will be accessed off Couangalt Road at a point approximately 50 metres to the east of Berrie Road.

8 Lot 1 is located adjacent to the Sunbury turnoff from the Calder Freeway at the south west junction of Calder Freeway and Couangalt Road, Mt Aitken.

9 The land is in a Rural Living Zone under the Macedon Ranges Planning Scheme, which has a minimum subdivision size of 40 hectares. The Calder Highway is within a Road Zone Category 1 and Couangalt Road is within a Road Zone Category 2.

10 The issue of how the proposed use of Lot 1 should be characterised arises as a result of the conditions applying to the use service station in Section 2 of the Rural Living Zone. The conditions are as follows:

* Adjoin, or have access to, a road in a Road Zone.

* 3600 square metres if it adjoins on two boundaries a road in a Road Zone.

The site must not have direct access to a rural freeway."

11 It was submitted on behalf of Macedon Ranges Shire Council that the petrol selling component of the proposal for Lot 1 must be characterised as a service station, which is defined at Clause 74 as:

"Service station Land use to sell motor vehicle fuel from bowsers, and lubricants. It may include the:

b) selling of food, drinks and other convenience goods;

e) installing of motor vehicle accessories or parts."

12 The Council further submitted that the proposed use is not a freeway service centre as the relevant definition of freeway service centre requires such use to have direct access to a freeway. Rather, the proposal must be regarded as three separate uses, namely service station, convenience shop and convenience restaurant.

13 By contrast, it was submitted on behalf of the permit applicant that the proper characterisation of what is proposed is an innominate use, namely service centre. The only reason why it does not fall within the definition of freeway service centre is because it does not have direct access to the Calder Freeway. Nevertheless, it was submitted that that term best encapsulates what is proposed, having regard to what, according to ordinary terminology, is the appropriate designation for the purpose being served by the use of land (see Shire of Perth v O'Keefe and Anor [1964] HCA 37; (1964 110 CLR 529 at 535).

"The real and substantial purpose behind this proposal, it is submitted, is an amalgam of what separately might be considered to be uses that fall conveniently within a land use term. Together though, they lose that identity and form what can properly be described as a Service Centre and the only reason that it cannot be described as a Freeway Service Centre is that it lacks direct access on to the Calder Freeway, although, for all intents and purposes its "raison d'etre" is its ability to access this freeway from one of its off ramps and then to reconnect immediately onto the freeway by means of an on ramp."

15 I have reached the conclusion that the proposed use of Lot 1 is not prohibited in the Rural Living Zone on two grounds:

(i) I find that the area of the site of the proposed use does not exceed 3600m2. Consequently any service station component of the use complies with the Section 2 condition.

(ii) I find that the proposed use can be characterised as a service centre and that this is an innominate use in the Rural Living Zone. Innominate uses are included in Section 2 of Clause 35.03-1.

I have made these findings based on the following reasons.

Section 2 conditions applicable to service station

16 There are two components to the conditions applying to service station in Section 2 of Clause 35.03-1 of the Rural Living Zone. The proposed use on Lot 1 meets the first of these in terms that it adjoins or has access to a road in Road Zone. It is the second component relating to the size of the site which gives rise to problems. The issue is whether the site exceeds 3600m2 (given that it adjoins a road in a Road Zone on two boundaries).

17 It is unclear what the purpose of this condition is. The same condition applies to the use of service station in a Residential 1 Zone, Residential 2 Zone, Low Density Residential Zone, Business 5 Zone and Environmental Rural Zone as well as the Rural Living Zone. The condition is not included in the Mixed Use Zone, the Township Zone, the Rural Zone, any industrial zones or any business zone other than the Business 5 Zone. It is possible that the intent of the condition is to prevent excessively large areas to be used for this purpose in zones where this would be inappropriate.

18 In the zones where this condition applies, a wide variety of lot sizes can be expected to be found. Quite small lots with areas less than the 3000 - 3600m2 specified in the condition will be found in the residential zones whereas the default minimum subdivision size in the Rural Living Zone is 8 hectares in the VPPs and in the Macedon Ranges Planning Scheme is 40 hectares. Even on a resubdivision of existing lots, the smallest lot size permitted is 0.4 hectare, which is greater than the area specified in the condition. Thus the likelihood of ever having a lot of this size in the Rural Living Zone is remote, yet the use of service station may be permitted. It would be illogical to include the use in Section 2 if the conditions would preclude any practical possibility of the use ever being considered.

19 In my view the word "site" in the conditions relating to service station (in the zones where they appear) is used in contradistinction to the word "lot". When used in a planning context, the term "site" may refer to a single lot or several lots or part of a lot. A site is the area occupied by a particular use or development and its size must be determined by reference to the actual use or development in question. The Tribunal in BP Australia Limited v Bayside City Council and Ors P1283/2003 [2004] VCAT 604 took a similar view about the interpretation of this condition relating to the use of service station, in that case in a Residential 1 Zone. If it is the area actually used for the purpose of service station - the site - that must be looked at, rather than the lot size, this would account for why the condition is included in some zones and not others.

20 In the present case, the footprint of the development is apparently 730m2. I am uncertain whether this includes the accessway but in any event it is clear that the site of the proposed use and development is considerably less than 3600m2. I am therefore satisfied that if the proposed use, or at least part of it, is characterised as a service station, it meets the condition in Section 2 of Clause 35.03-1 and can therefore be considered on its merits.

21 The parties agree that if the site had access to the Calder Freeway the proposed use on Lot 1 will fall within the definition of freeway service centre. The definition of freeway service centre is:

"Land which has direct access to a freeway and is used to provide essential services and facilities which encourage drivers to stop and take an effective break in the interests of driver safety."

22 This definition must be read in conjunction with the particular provisions of Clause 52.30 dealing with freeway service centre. Clause 52.30-1 sets out requirements to be met, and in respect of `facilities and services' these requirements provide as follows:

A freeway service centre must provide only essential services and facilities. These essential services and facilities must be available at all times. Essential services and facilities that a freeway service centre must include are:

- Undercover fuel sales area for petrol, diesel and LPG.

- An area of not more than 240 square metres for the sale of food, drinks and other convenience goods.

A freeway service centre with access to a rural freeway must also provide local and regional tourist information. A freeway service centre must not include:

- Mechanical repairs (other than the emergency repair of vehicles).

- Retail facilities of more than 240 square metres.

- Entertainment facilities, amusement machines or gaming machines.

- The sale, distribution or consumption of alcohol unless associated with a residential hotel/motel.

A freeway service centre with access to a rural freeway must not include overnight accommodation (other than for a caretaker or site manager)."

23 The proposed service centre will include all the essential services and facilities required by a freeway service centre and will not include any of the things that a freeway service centre must not include.

24 The question is whether the proposed use of Lot 1 should be characterised as being three separate uses, namely service centre, convenience restaurant and convenience shop, or whether it should be characterised as a service centre, which would be an innominate use in the Rural Living Zone.

25 I conclude that the use proposed is better characterised as a service centre than as these three separate uses for the following reasons.

26 The definition of freeway service centre and the particular provisions of Clause 52.30 have two elements which must be satisfied:

* The nature of the facilities and services provided, including certain restrictions

* The nature of the access, including certain limitations on access

27 In addition, there is the purpose of the use that must be satisfied, which is embodied in the definition, namely the provision of essential services and facilities "which encourage drivers to stop and take an effective break in the interests of drivers safety."

28 Both before and since the introduction of freeway service centre into the VPP's there has been a growth of these service centres along freeways. However, similar service centres may also be located along highways, which are not freeways, and serve the same purpose of encouraging drivers to stop and take an effective break in the interests of driver safety. Nor is there any reason why similar service centres may not be located just off freeways without the direct access that the definition demands, but oriented to freeway users, and also serve the same purpose.

29 In my view, if the nature of the facilities and services provided and the purpose of the use are the same as those of a freeway service centre, but it is only that the access element is not met, then it may be said that the use is a service centre although not a freeway service centre.

30 Whilst this type of use has elements of three types of separate uses within it, namely service station, convenience restaurant and convenience shop, the elements are fully integrated in the service centre developments growing up along freeways so they are now recognisable to the travelling public as places where they can expect a certain range of facilities. Fundamentally that range of facilities will include the sale of fuel and convenience items and the provision of a restaurant, toilets, telephone and play area. The public knows that all these facilities will be available not just some as would be the case if the use was only a service station or only a convenience restaurant. Likewise there is an awareness that such facilities are not conventional service stations offering repair servicing or vehicle washing facilities.

31 This type of place presents to the travelling public as an integrated complex and functions as such. It does not appear as three separate uses. The primary role of these facilities is to provide a direct service to freeway users which is service oriented rather than being focussed on the servicing of motor vehicles. It is the integrated nature of these facilities, their visibility and ease of access from freeway or highway that offer the primary encouragement to drivers to stop and thus serve the purpose required by the definition of freeway service centre and the provisions of Clause 52.30.

32 I consider that there has thus evolved a new integrated type of use, which can be described as a service centre. I consider that if this use also meets the access requirements set out in the definition and Clause 52.30 it can be classified as a freeway service centre. But if it is only the access requirements that are not met, then the a use may nevertheless still be classified as a service centre, which will be a separate innominate use.

33 It will be a question of fact in each case whether the nature of the facilities and services provided otherwise meet the requirements of Clause 52.30 and whether the purpose intended for the use is served, namely to encourage drivers to stop and take an effective break in the interests of driver safety. Issues including the location, visibility, case of access, nature of passing traffic etc will influence this finding.

34 In the present case, the proposed use on Lot 1 will have the same characteristics and the same purpose as a freeway service centre with the exception that access will not be directly from the freeway but from the continuation of one of the off ramps at a major diamond interchange. Arguably its location at this interchange will make it more accessible to drivers travelling in both directions along the freeway compared to a service centre with direct access from the freeway, which would be restricted in its access to those vehicles travelling only in a single direction. To travellers along the Calder Freeway and to users who access the facility via the on and off ramps, the service centre will appear like any other freeway service centre.

35 Before concluding this matter, one issue that arises is whether designating service centre as an innominate use conflicts with the provisions in Clause 74, which provide:

"The following table lists terms which may be used in this planning scheme in relation to the use of land. This list is not exhaustive. However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table."

36 It may be thought that because the term "service centre", as used in connection with this proposal, includes components of one or more of the terms listed in the table in Clause 74, namely, service station, convenience shop and convenience restaurant, it should not be characterised as a separate use of land. This was the view apparently taken by the Tribunal in Hendriksen v Frankston City Council [2003] VCAT 331.

37 However, the provisions of Clause 74 provide that a term not listed in the table must not be characterized as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table. What Clause 74 does not say that the term "obviously or commonly includes one or more of the terms listed in the table". Thus it does not refer to a situation where the term describes a different, and independent, use which is an amalgam of one or more of the terms listed but rather refers to a situation where the term is part of or included within one or more other terms. In the present case, the term in question is "service centre". Service centre may include several of the terms listed but it cannot be said that the term "service centre" is obviously or commonly included in any of the listed terms, except possibly the term "freeway service centre." Rather, the term "service centre" refers to an integrated amalgam of three terms that are listed, namely service station, convenience restaurant and convenience shop, so as to form an independent land use. On this basis, I do not consider that Clause 74 precludes the characterisation of "service centre" as a separate use of land.

38 I consider that the following principles enunciated by Ashley J of the Supreme Court in the case of Cascone & Another v City of Whittlesea (1993) 11 AATR 174 are relevant in reaching this conclusion, namely:

_"_With respect to permit applications, the following principles, in my opinion, emerge from the cases to which I have been referred:

(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises as to whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is `yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is `no', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase `real and substantial' qualifying `use' will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between `purpose of use' and `use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of `innominate use'. It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the `real and substantial' purpose of use test will be applicable in factual situations having the perceived potential to fall within paragraph (4) or (5) above."

39 This analysis does not mean that every time a proposal includes more than one separately defined use it becomes a new innominate use. In each case it will be a question of whether the components are so integrated that issues of dominant and ancillary uses become irrelevant; or whether the removal of one component would alter the purpose being served by the use. It is a case where the well-known principle enunciated by the High Court in Shire of Perth v O'Keefe & Another [1964] HCA 37; (1964) 110 CLR 529, 535 is relevant where His Honour Justice Kitto said:

"The application of the law in a particular case is therefore not to be approached through a meticulous examination of the detail of processes or activities, or through a precise cataloguing of particular items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date...."

40 In my view, an application of this principle leads to the conclusion that the term "service centre" has evolved as a separate innominate use because the removal of any component would mean that its purpose would change.

41 The introduction of the VPPs and the wide discretion included in many zones to consider uses, including new uses, was in part intended to introduce sufficient flexibility into the planning system to allow new uses to be considered on their merits as they evolved without forcing them into the straight jacket of existing definitions. There are limits to this process as the principles set out in Cascone reveal. But I consider this is a case where the concept of a "service centre" has outgrown existing definitions and become a separate innominate use in its own right.

42 I recognise that issues about categorisation may still arise when "service centres" are proposed on highways or roads other than freeways and they do not meet all the requirements (apart from access) set out in Clause 52.30. For example they may include fewer services and facilities or may include prohibited features. They will need to be dealt with on their own merits. The term "service centre" is a loose descriptive term gaining currency as applying generally to outlets selling fuel and convenience goods and including a convenience restaurant. I have limited the term "service centre" to mean a use that complies with Clause 52.30 in all respects other than the access elements. I conclude that such a use is a separate innominate use.

43 The planing permit application includes as one of the things applied for, "to create access to a Road Zone, Category 2". No permission for this is required under the Macedon Ranges Planning Scheme.

44 Vic Roads control access to freeways and have stringent requirements for granting new access. Vic Roads is a referral authority for freeway service centres.

45 In the current case, the proposed use is not a freeway service centre and access will be off Couangalt Road, which is in a Road Zone Category 2. Thus Vic Roads will not be a referral authority as such. However the proximity of the service centre to the freeway off ramp and the orientation of the service centre to attract freeway travellers is such that considerable weight will need to be given to the views of Vic Roads. For this reason I have directed that Vic Roads and the applicant's traffic engineers meet prior to the hearing to resolve, so far as possible, traffic and access related issues. They should prepare a statement of agreed facts and identify any outstanding issues of dispute in accordance with Practice Direction.