Walker Corporation Pty Ltd v Wyndham CC [2007] VCAT 1396

In permit application no. WYP0859/06, the decision of the Responsible Authority is set aside. A permit is not granted and no permit is to be issued.

Mr C Canavan QC and Mr P Chiappi of counsel instructed by Arnold Bloch Liebler solicitors. Evidence was called from:

• Mr A Biasci, town planner.
• Mr J Ganly, economic analyst.

For Respondent in P780/2007 (Applicant in P1241/2007)

Mr M Dreyfus QC and Mr P O'Farrell of counsel instructed by Minter Ellison lawyers. Evidence was called from:

• Mr R Milner, town planner.
• Mr A Cook, town planner.

Statements of evidence from the following witnesses were filed. None of these experts were called as no party sought to cross-examine them:

• Mr R Burton, acoustic engineer.
• Mr A Wyatt, landscape architect.
• Mr S Hunt, traffic engineer.

1. Tiplane Pty Ltd proposes a large hotel and reception centre (including gaming facilities) on land within the Western Gardens Light Industrial Area. The proposal has received Council support. The Walker Corporation and Cedar Wood Pty Ltd[1] have sought review of the Council's decision to determine to grant a permit. Their grounds are that:
   • the proposal is an inappropriate out-of-centre development that will undermine the viability of the nearby Point Cook Town Centre and Williams Landing Major Activity Centre.
   • the siting of the proposed development is contrary to state and local policy as the facility should be located within or at the periphery of an activity centre and no net community benefit is achieved.
2. At the same time, Tiplane Pty Ltd has sought review a number of conditions upon which the Council has determined to grant it a permit.[2]
3. In deciding whether a permit should be granted and, if so, what conditions should apply, we have considered all written and oral submissions as well as all expert evidence. That has been assisted by our inspection of the site, the locality of the Point Cook Town Centre and Williams Landing, some hotels referred to by the parties, and wider area.
4. We conclude that the proposal for a substantial hotel and reception centre is not appropriate in terms of the orderly planning of activity centres having regard to the location of the review site and applicable planning context. Our reasons follow.

1. The vacant review site is 1.97 hectares in area and is located at the eastern end of the Western Gardens Light Industrial Area. This Light Industrial Area is directly to the south of the Westgate Freeway and Geelong rail line. A number of businesses have established in the Area including warehousing and trade supplies.[3]
2. The review site fronts Wallace Avenue, east of Forsyth Road. The land also abuts Skelton Creek to the south and the alignment of the Palmers Road overpass extension (under construction) to the east.
3. To the south of the Western Gardens Light Industrial Area and Creek reserve is the developing Point Cook residential area. The closest residential area to the review site is around 180 metres.
4. The Point Cook Town Centre is located on the north-east corner of Boardwalk Boulevard and Dunnings Road, around 1.5 kilometres from the review site. The Town Centre is around 13.8 hectares in area and zoned Business 1/Mixed Use. Construction of around 22,000 square metres of retail and commercial floor area is due for completion in late 2007.[4] Recently, a permit application was lodged for a hotel with around 1,800 square metres floor area in the Town Centre.
5. To the north of the review site, over the Westgate Freeway and Geelong rail line, is the former Laverton RAAF base. This large, 275 hectares, area is to be redeveloped as the Williams Landing activity/employment centre comprising four residential neighbourhoods, town centre, railway station and open spaces/wetlands.[5] It is in a Priority Development Zone.[6]

1. Approval is sought to use and develop the review site for a hotel (with liquor licence) and reception centre. The double storey hotel would have a floor area of 1,057 square metres and include 50 gaming machines. Function spaces, bars, TAB and related facilities are proposed in addition to a drive-through bottle shop (375 square metres). The reception centre would have a floor area of 820 square metres with two function rooms. An at-grade car park with 471 spaces would wrap around the site with the hotel and reception centre centrally positioned. Access to the parking areas would be from an internal road to the north and Wallace Avenue to the east.
2. The patron capacity would be 1,550 persons. The hotel would provide for 15 full-time staff and 60 part-time places while the reception centre would provide six full-time and 60 part-time jobs. Hours of operation sought for the hotel are 7am - 3am the following day and 9am - 1am the following day for the reception centre.

1. Pursuant to the Industrial 3 Zone of the Wyndham Planning Scheme a permit is required to use and develop the land for a hotel and reception centre.[8] A permit is required for the licensed area[9] and a reduction in car parking. [10] No permit is required for gaming machines under Clause 52.28.
2. A permit requirement for buildings and works is triggered by each of the Environmental Significance Overlay (Schedule 1 - Waterway Corridors), Design & Development Overlay (Schedule 2 - Western Gardens Light Industrial Area), Land Subject to Inundation Overlay that affects part of the site, and Public Acquisition Overlay.[11]

1. A "given" is the site's approval for 50 gaming machines by the Victorian Commission of Gambling Regulation.[12] No planning permit is required for this aspect of the proposal. Gaming is relied upon by the proponent as integral to the proposed hotel/reception centre complex. We have proceeded on the basis that gaming is a significant component of the proposal and relevant to our assessment in that context.[13] We have been mindful of the Commission's findings as to the site's suitability for gaming.
2. Matters relating to the layout of the site, adequacy of car parking and loading facilities, relationship to the Creek reserve, and detailed design are not in dispute in these proceedings. Given our findings in relation to the contested issues, we have not sought to analyse these detailed matters in terms of the DDO2 and other controls and policies that apply.
3. We have not addressed conditions contained in the Notice of Decision in this review given our findings on the merits of the permit application and mindful that agreement had been reached with the Council and proponent on the conditions in dispute.

Would the proposal adversely affect the economic viability of the approved/ developing activity centres at Point Cook & Williams Landing?

1. In addressing the two grounds relied upon by the Applicant, we start with this question because it can be disposed of quite promptly.
2. Mr Canavan QC submitted the proposal would undermine the development and viability of the Point Cook Town Centre and Williams Landing activity centre. He relied on Mr Ganly's evidence - cited as an economic assessment of the proposed Point Cook Hotel. Mr Canavan said that evidence assesses the capacity of the region to support hotels and finds the region can support two hotels. He submitted the evidence demonstrates that, if allowed to proceed, the proposal would either delay or block the development of like facilities within the two activity centres. In addition, Mr Canavan relied on comments in the Council officer's report that some impact would be expected on the potential for other sites in the activity centres to be used for the same purpose.
3. The Council's submission was that the proposal would not be expected to adversely affect the viability of activity centres, or their role, but instead contribute to a diversity of services for the community. Ms Smith submitted the proposal would not affect the potential for other sites within activity centres to be used for a similar purpose. However, she also submitted the proposal would have an economic impact on like-uses in the two activity centres.[14] As no economic analysis was provided with the permit application, or undertaken by the Council (as far as we were made aware), the basis for the Council's conclusion is unclear. We were also advised through Mr Cook's evidence that the Council had identified a need for a large reception function facility to service Wyndham.
4. Mr Dreyfus QC challenged the Applicant's submissions on the basis that Mr Ganly's evidence was of no assistance to the Tribunal and that the Applicant had not demonstrated that the viability of these large activity centres would be prejudiced by approval of the proposal. He questioned the relevance of this question given his submission that the objections to the proposal are made by potential commercial competitors; competition is not a matter relevant to the Tribunal's consideration Mr Dreyfus said.
5. We agree with Mr Dreyfus on a number of points, specifically:
   • the Wyndham Planning Scheme and Section 60 of the Planning and Environment Act 1987 do not regard commercial competition as a relevant town planning consideration.[15] Having said that, if an objection to a proposal is made by a possible competitor, the objection is not necessarily invalid because it has an element of commercial advantage - a commercial competitor can have legitimate concerns about the planning merits of a proposal.[16]
   • the ability to assess the proposal's impact on the viability of the Point Cook Town Centre and, particularly in the case of the more embryonic Williams Landing, is affected by the fact that neither centre is operational; in the case of the latter there is no information about specific end-users within the cited floor limits.
   • the Applicant's submissions and evidence on this economic question do not persuade us that:
     • the proposal would affect the ability of either centre to perform its nominated function alone or in the activity centre hierarchy[17];
     • the proposal would affect the viability of either centre as a whole;
     • approval of the proposal would preclude entirely a hotel and/or reception centre of some size being located in one or both activity centres, or that there is only room for two hotels in the area.
6. It is influential to our conclusions that we do not have sound evidence upon which we can find any magnitude or extent of impact, albeit we accept that there would potentially be an economic consequence from this large entertainment complex even given the size of the proposed activity centres.
7. In this respect, Mr Ganly's analysis has not been of great assistance to the Tribunal albeit his conclusions about the potential for delays caused to other developments may be correct (as conceded by Mr Cook). Determining a per capita ratio of hotels in growth areas as set out in Mr Ganly's evidence may be of interest for comparative purposes. But on that analysis we find:
   • no basis to accept the proposition that a per capita provision of hotels in other regions is a "benchmark" to apply to Wyndham and surrounds. Other locations may be argued to be oversupplied or undersupplied, a question upon which we have no analysis.
   • the "benchmark" is problematic for its intended purpose because:
     • it relies on an assessment of premises with general licenses and does not include club licenses (we agree with Mr Cook that many clubs operate like a hotel of the type proposed);
     • it does not analyse the role of hotels with/without gaming;
     • it does not consider the size of the premises (patron capacity) that may influence the level and type of service available users;
     • it has not considered other premises such as restaurants and cafes that (in Mr Ganly's evidence) now take up a sizeable proportion of spending on licensed facilities;
     • it does not consider any proposal for additional venues in the areas;
     • catchments for the regions are arbitrary and open to debate, such facilities on the edge of the nominated regions that are excluded but whose inclusion would influence the "benchmark" ratio.
   • the analysis is a snapshot at a particular point in time and occurs in a context of growth areas where the provision of services and facilities can lag behind residential development; that is again why adopting the ratio as a benchmark is inappropriate as it is not necessarily an indicator of what is an appropriate or desirable level of provision for planning purposes (and possibly business investment purposes).
8. Mr Ganly's analysis does, however, indicate there is a gap in the market at present, which we accept. We also accept the likelihood that the catchments for hotels/reception centres in the activity centres could overlap with that of an additional hotel/reception centre at the review site given the few kilometres that separate Point Cook, Williams Landing and the review site. The degree of impact would be dependent upon many factors relating to possible facilities at Point Cook and Williams Landing (the latter upon which we have limited information). Factors include the size of a hotel and reception centre and whether gaming facilities would be included.
9. On the last point, we record that we have not been drawn into speculation as to the likely success of the current planing permit application for a hotel at the proposed site in the Point Cook Town Centre - that is a decision for another day by the responsible authority or Tribunal on review. Nor will we speculate on any separate application for gaming in that proposed venue that would be a decision of the Victorian Commission for Gambling Regulation or Tribunal on review.
10. In conclusion, the Applicant has not persuaded us that approval of the permit application before us would undermine the economic viability of either the Point Cook Town Centre or Williams Landing to such an extent that warrants rejection of the permit application.

Is the proposal contrary to activity centre policies?

1. The other arm of the Applicant's case is that the proposal is contrary to state and local policy as it should be located within, or at the periphery of, an activity centre. No net community benefit is achieved, Mr Canavan argued, to warrant support for the proposed out-of-centre development.

Is the proposal acceptable in terms of the Industrial 3 Zone and related policies?

1. First we consider the proposal in the context of its zoning and applicable policies in that respect.
2. The review site is within an Industrial 3 Zone that has as its purposes:
   • To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.
   • To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.
   • To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.
3. The policies relating to this area include Clause 21.05-4 Availability of Local and Regional Employment. That is an indicator of the rationale for of the application of the Industrial 3 Zone:
   • Exploit the strategic locational advantages of Wyndham's employment areas, which are generally adjacent to the Princes Freeway and Western Ring Road, and in proximity to Melbourne Airport, Avalon and Point Cook airfields, and the two major seaports.
   • Discourage the location of industry with potential off-site impacts along Wyndham's gateways, such as the Princes Freeway (see Clause 21.05-10).[18]
4. Map 6 shows the existing industrial corridors on either side of the Freeway, with Skelton Creek providing a southern boundary.[19] Clause 22.01 pursues the same theme in the strategic framework for Point Cook with Map 3 showing the review site and abutting land earmarked for employment.
5. Clause 21.05-5 "Accessible and Attractive Activity Centres" includes a strategy to "promote office uses in industrial areas and adjacent to activity centres". It also includes the following action[20]:

Ensure development in the Western Gardens Light Industrial Area enhances the visual character of the Princes Freeway and the visual and environmental qualities of Skeleton Creek in accordance with Schedule 2 of the Design and Development Overlay ....

1. The loss of industrial land is not a ground pressed by Mr Canavan at the hearing (even though it was arguably alluded to in the grounds filed by the Applicant). We do not consider this is a critical or determinative point.
2. We have some difficulty accepting the Council's submission that the site's zoning "is not conducive to its [the Zone's] intended purpose in the first instance". Our reading of the intended purpose of this area abutting the Freeway is clear in the Scheme. Although we see some problems for Clause 21.05-5 given office floor limits apply in industrial zones, the sensitivity of the location relative to the Creek, residential areas and Freeway gives some logic to the application of the Industrial 3 Zone. Land east of Palmers Road is shown as subject to further investigation at Map 3 to Clause 22.01. We were advised that no such investigation has occurred and there is no evidence of any review of the industrial zoning in this area more generally.
3. We agree with Mr Milner that the construction of Palmers Road and other development that has/may occur will enhance the attractiveness of land in these industrial areas - this is one of the locational advantages that local policy seeks to exploit. It will, however, be a matter for the Council as to whether it wishes to amend the Scheme to facilitate more offices or pursue employment opportunities abutting the Freeway corridor in another way.
4. Even though the uses proposed in this application are neither encouraged or discouraged by the Local Planning Policy Framework, an important point is the desired policy outcome - employment. The proposed complex would provide 21 full-time and around 120 part-time jobs. Thus, it can make a positive contribution to local employment opportunities. In that respect, it can be said to give effect to local policies for the area established by the Scheme as consistent with state employment policies.
5. Even though we tend to agree with Mr Biasci that a very large people-generating commercial activity of the type proposed in this permit application is not a comfortable fit with the types of uses usually found in the Industrial 3 Zone, we are mindful of situations where function centres and hotels have been found to be acceptable in industrial locations. Thus, we do not consider this a "knock-out" point.
6. It follows from the above that, in relation to specific policies for the review included in the LPPF, we do not consider the proposal is contrary to the parts of the State and Local Planning Policy Frameworks relating to employment and industry policy.

1. Next, we review whether the proposal would give effect to the purposes of the applicable provisions set by the Scheme to implement other aspects of the State Planning Policy Framework.[21] The heart of the dispute is whether the proposal is contrary to state policy relating to activity centres, a policy reflected in local policies.
2. We find no need to recite the broad aims of activity centre policy that are clearly set out in the Scheme and related documents such as Melbourne 2030. New activity centres such as Williams Landing and Point Cook are to provide a focus for a wide range of facilities.
3. The debate before us focuses on the strategies for activity centres and specifically two strategies at Clause 12.01-2 addressing "out-of-centre development".[22] These strategies are as follows:
   • Ensuring that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.
   • Ensuring that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.
4. Prior to all planning evidence being heard and tested through cross-examination, the Tribunal thought the position of the planning witnesses would be as summarised by Mr Dreyfus in his opening submission - the proposal is an "out-of-centre" development because it was not located on the border of an activity centre.[23] In addition, it appeared to the Tribunal to be common ground when reading the planning evidence before the hearing that the second of the above-cited points was most relevant to the assessment of the proposal, rather than the first point. That was because the experts regarded the proposal as of the type that should be in/on the border of an activity centre (whether or not described as a single use facility).
5. Prior to the Council's submission at the hearing, we were unaware how the Responsible Authority might regard these Clause 12.01-2 provisions as the officer report to the Council did not expressly address the Clause.
6. During the course of the hearing it emerged that:
   • the Council regarded the proposal as a "stand alone, self-sufficient use" and "not within a designated activity centre" but "at the periphery of a nominated activity centre at Williams Landing".[24]
   • Mr Cook and Mr Biasci assessed the proposal as an "out-of-centre" development in relation to both the Williams Landing and Point Cook activity centres. They relied on an assessment of the proposal's net benefit to the community.
   • Mr Milner relied upon his written evidence that the review site is "proximate" to Williams Landing but the not Point Cook Town Centre[25]. When pressed on the relationship of the site to Williams Landing during cross-examination by Mr Canavan, Mr Milner referred to the "fuzzy" nature of activity centre boundaries, the site's position "close to the edge of an activity centre" and the proximity to an activity centre so that the proposal can "enjoy the benefits of activity centre policy" particularly in relation to a high level of accessibility. He said it was debateable as to whether a proposal that entails two discrete uses from two separate land use groups in separate buildings could constitute a "single-use recreation facility". In adopting "a cautionary approach", Mr Milner also assessed the proposal against the test of net benefit to the community.
7. We will not examine whether the proposal is a "single recreational [or entertainment] use" because we find the first strategy of Clause 12.02-1 cited above is not applicable. That is because it is common ground between the parties that the review site is not on the border of the Point Cook Town Centre and we prefer the evidence of Messrs Cook & Biasci that the review site is not on "in or the border of" the Williams Landing activity centre. Thus, we accept their evidence the proposal is not in a location preferred by that Clause 12 strategy. We prefer Messrs Cook & Biasci evidence because:
   • the review site is not shown in the Scheme, the incorporated plan for the Laverton Employment node, or the Growth Areas Framework Plans 2006 as within the designated Williams Landing Activity Centre; the latter two show the boundary to be north of the Freeway.
   • the site is separated from the boundary of Williams Landing by a freeway and developed/developing land south of the Freeway.
   • the entry to the proposed facility would be around 500 metres walking distance from a possible location for a Williams Landing railway station with the balance of the activity centre at a greater distance.
8. Whether we adopt a narrow or wide interpretation of what a border or edge may comprise or represent, we reach the same conclusion in this case given the physical barriers, distance and lack of supporting documentation.
9. The parties and witnesses did not refer to the Western Gardens Light Industrial Area in the context of Clause 21.05-5 as cited at paragraph 32 above. We can infer that the parties and witnesses did not consider the specific policy to have relevance to the activity centre debate before the Tribunal. It may have been arguable that the reference lends weight to the review site being part of an activity centre hierarchy. But, the accompanying map and reference material upon which the map is based does not make such a link. Clause 21.05-5 does, nonetheless, refer to the potential for an activity centre at Laverton:

Identify and support the development of a transit-based activity centre and employment node on the former Laverton RAAF Airfield site focusing on the development of retail, industrial, business and commercial uses and the achievement of the highest practical proportion of non-retail jobs on the land.

1. We think the reference to the Western Gardens Light Industrial Area in Clause 21.05-5 is most relevant to design rather than land use outcomes (outcomes we have discussed above).
2. The attractiveness of the industrial area will be enhanced in time by the construction of the Palmers Road overpass and development of Williams Landing (including a railway station) - the sphere of influence from these major projects would be expected to go beyond the currently defined centre. But it is a strategic decision for the Council if it wishes to take up Mr Milner's suggestion that the industrial land be included as part of the activity centre, with Skelton Creek forming the boundary. That type of decision should be the subject of proper analysis through other processes.
3. In summary, we find the first policy in Clause 12.01-2 relating to out-of-centre development is not met. That is because the proposed development would not be in the preferred location of being in or on the border or edge of an activity centre and instead it is proposed on land that is outside of a designated activity centre where a recreational/entertainment facility or complex of the type proposed is discouraged. Consequently, we consider the second policy set out in Clause 12.01-2 is most relevant to this permit application, informed by the balance of the State Planning Policy Framework and applicable parts of Clauses 21 and 22 that seek to give effect to state policy.

Would the proposal result in a net community benefit?

1. The policy seeks to ensure that out-of-centre proposals are only considered where the proposed use or development is of "net benefit to the community in the region served by the proposal".
2. There are no guidelines or criteria to inform such an assessment, although it is common ground between Messrs Canavan and Dreyfus that we can be assisted by the following:

Clause 11.01 - The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

Clause 11.02 - The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

1. Our attention was also drawn to a number of cases referring to the concept of net community benefit.[26] The concept requires balancing a proposal's positive and negative benefits in relation to applicable policies. That may be done in both broad and narrow geographical contexts and in terms of direct and indirect impacts.
2. Mr Dreyfus submitted that an assessment of new community benefit should not consider alternative sites or existing permissions on a comparative basis. We have performed an assessment without such comparisons having regard to the existing situation of the land. However, it is useful to review contended benefits having regard to the outcomes of a live planning permit for the same land as we briefly discuss later in these reasons.[27]
3. The Scheme's policy of considering net community benefit and sustainable development is not the same assessment required of the Gaming Commission. The Commission must not grant approval for gaming unless it is satisfied (among a range of matters) that the "net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located". As observed by his Honour Justice Morris in Branbeau[28]:

the test does not require the Commission (or, on review, the tribunal) to be satisfied that there will be a net positive economic and social impact of approval; it is sufficient that the Commission (or, on review, the tribunal) be satisfied that the net economic and social impact of approval will be either neutral or positive.

1. In our consideration of net community benefit and sustainable development, it is unnecessary to recite the policy outcomes sought by activity centre policies, environmental policies, employment policies, economic policies and social policies contained in the state and local policies of the Scheme. These are well known and non-contentious in this proceeding as to their intent. They work together to achieve the outcomes sought by the state and local policies.
2. We will, however, briefly address contentions of an inconsistency between activity centre policy and the state-wide approach to gaming reflected in the provisions of Clause 52.28. The Council's submission contends separation of gaming from activity centres is supported by "gaming guidelines". More analytically, Mr Milner's evidence addressed the concepts of "destination gaming" and "convenience gaming". He referred to a shift toward more destination gaming venues being investigated by the State Government[29]. On the basis of prohibitions in Clause 52.28 for the siting of gaming facilities in shopping complexes and specified strip shopping centres, Mr Milner expressed concern about the location of a combined hotel and gaming facility in Williams Landing or the Point Cook Town Centre. Thus, Mr Milner's evidence and Mr Dreyfus' submission were that the review site offers a location that is a destination in its own right and out of an activity centre[30]. We were also referred to comments made by the Commission in its decision approving gaming machines on the review site[31]:

During the inquiry some evidence was given as to a suggestion that hotels should now be located within activity centres. The proposed site is not within such a centre, but we find it somewhat incongruous that such a proposal should be made when, at the same time, there is a considerable body of opinion which suggests that gaming venues should not be located in retail shopping areas, bearing in mind that retail activity in the heart of most activity centres.

1. In Wyndham, Clause 52.28 prohibits gaming machines in the Werribee Plaza, Werribee Village, Hopper Crossing shopping complexes and all strip shopping centres (defined by Clause 52.28-4). Gaming venues cannot locate in these retail-focussed places. But activity centres are not uniform and state policy makes clear that a wide range of functions is integral to the concept, not just retailing.[32] In Wyndham, activity centres associated with growth areas are allocated large tracts of land to accommodate multiple and complementary land uses that can enjoy synergies and share infrastructure. In large planned activity centres, sound strategic planning can separate potentially incompatible uses, such as gaming venues and retail functions. That is much more difficult when proposing new hotels/gaming machines in existing centres where there may often not be the same planning opportunities or spare land capacity to create "buffers".
2. Thus, in the circumstances of the review site and activity centres being discussed in this proceeding, we do not find there to be a fundamental conflict between policies. Instead, we must balance the policy outcomes achieved, or not achieved, by the proposal in deciding whether there is a net community benefit in allowing the proposal to proceed.
3. Our "ledger" of benefits and disbenefits includes the points made in submissions and evidence. We have included topic sub-headings for ease but the theme of sustainability flows through them.

• Site will be accessible for communities to the south and, with the completion of the Palmers Road overpass, from the north.
• Patrons may drive shorter distances compared with distances to existing venues that may be further away.
• Provides large reception centre and hotel for which a demand is said to exist.
• Places gaming at a site away from retailing in either activity centre.
• May not prevent other hotels/reception facilities being established.
• Potential for access to the site with bus services on Palmers Road and railway station in Williams Landing.

• Car-based proposal that will generate a high level of trips given the size of the facility with limited reliance expected on public transport.
• Disperses major land use and people-generating activities outside nominated activity centres.
• Scale of activity (1,550 patrons) involves an activity serving a regional catchment (specifically reception centre[33]) outside of the activity centres.
• No potential for multi-purpose trips given isolated site context.
• No opportunity for synergies with other activities (eg. hotel/motel accommodation) given separation from activity centres and industrial zoning of surrounding land.
• No opportunity to share infrastructure with other uses, such as car parking.
• May affect ability to locate hotel and/or reception centre of comparable scale in activity centre(s).

• Creates 21 full-time and 120 part-time jobs to provide increased employment in the hospitality industry.
• Employment created during construction.
• Provides employment in a location sought by local policy.
• May not prevent like facilities elsewhere in the area including activity centres.

• Loss of industrial land to a non-industrial use.

• Can contribute to landscape improvements to the Skelton Creek.
• Re-use of stormwater runoff proposed on-site.
• Management of run-off to improve quality of inflows to the Creek.

• Does not advance wider sustainability outcomes given car-based nature of operation and lack of potential synergies with nearby activities.

• Residential amenity impacts likely to be controlled given separation.
• Design outcomes sought can be met.
• Uses can physically be accommodated on the land.

1. The proposal advances policy outcomes sought by the Scheme in economic and some environmental terms. Disbenefits are primarily related to the failure to meet outcomes sought by activity centre policy including sustainability goals that are one foundation of that policy. The ledger does not weight benefits and disbenefits but such weighting can be significant in deciding whether a proposal achieves a net community benefit.
2. This proposal is not a core retail function - it is common ground between the parties that it is entertainment/recreation focussed. It is also common ground between the three planning experts that the hotel and reception centre proposed in this case are the types of uses sought by the Scheme to be located in an activity centre (Mr Milner being the only witness doubting the ability to so because of the proposal's gaming component - as discussed above). Thus, the decision before us differs from other "out-of-centre cases" that have involved major retailing facilities such as a supermarket[34], market[35] or large retail facility.[36] In those cases, the Tribunal found against the siting of key retailing uses outside an activity centre.
3. We agree with the Respondent that the proposal would have benefits to the region, such as through the provision of a hotel and reception centre facility. However, in balancing all policies we are not persuaded the outcome of this proposal has a net community benefit. Rather, we accept the Applicant's submissions and evidence that the proposal would potentially undermine the orderly planning of the nearby activity centre(s).
4. The planning for this growth area has a long history. We agree with Mr Biasci that the fruits of that long process are now emerging with the construction of the first stage of the Point Cook Town Centre and the implementation of a Priority Development Zone over Williams Landing.
5. It is not a situation where the implementation of the planning strategies has stalled. In this context, we rely on the Tribunal's comments in Dalglen Nominees Pty Ltd referring to benefits derived by the community who live, work and conduct business in a growth area from the planned approach to its development. While the facts differ from those before us, the principle relied on by (then) Member Liston is apposite:

The Tribunal understand the attractiveness of this site to the applicant, they own the land, they do not have the difficulty of having to reach agreement with another landowner to implement their plans, the land is on a prominent and visible position on a main road, and presumably the land was less expensive than land in a business zone. ...

Nevertheless, the Tribunal is of the view that it is of vital importance to give significant weight to comprehensive strategic plans when they have been implemented. A planned approach to the development of townships such as Sunbury enables the efficient and convenient use of land, the economic provision of infrastructure, and ultimately a substantially more attractive physical and social environment for the people who live and work and conduct business with in the township.

Of equal importance is the fact that at this early stage in the development of the township, a large number of people such as the residents who invest in land as a place to live or such as the Wilbow Corporation who invest in commercially zoned land, make these economic decisions on the basis of the plan, it would be highly irresponsible of a planning authority to encourage people to make vital life time and economic decisions on the basis of a comprehensively thought out plan and then to allow poorly thought out ad hoc decisions which significantly alter the basis on which such investment decisions were made. [37]

1. In addition, the scale of the proposal is highly relevant. This is not a small suburban pub or reception centre. The permit application seeks approval for up to 1,550 patrons. On any view, this must be regarded as a substantial facility and, as accepted by Mr Milner, would have a regional draw. Thus, in a planned growth area, the uses within the proposal could be important anchors or attractors for an activity centre in addition to, for example, major retail facilities.
2. Moreover, there is not certainty in relation to the site's accessibility to the principal public transport network in terms of bus or rail services and, even if we accept that such services will be available in time, the proposal is clearly car-based as demonstrated through the evidence of Mr Hunt.
3. Mr Dreyfus urged us to apply policy "in an intelligent and flexible way...". That approach is oft-cited from SMA Projects and the quotation continues "having regard to the entire strategic and policy framework affecting the future use of land while at the same time avoiding unfortunate outcomes in individual permit applications".[38]
4. That recognises that one must step back from too literal an interpretation of the Scheme's wording to understand and apply the outcomes sought by the Scheme as a whole.
5. Here, we have found the proposal to be unacceptable in terms of giving effect to important components of state policy. As the Tribunal said in Burnside Properties[39]:

... there is no conflict as to the policy ... but merely argument about the application of the policy. The commercial opportunity has arisen to make use of an available site, and the appropriateness of it has to be judged against the policies to which all the parties have referred. In the absence of conflict between policies, full weight can be given to the relevant policy. [Emphasis not in original]

1. We are also mindful of Burns Bridges, where his Honour Osborn J said:

The notion of "orderly planning" which is referred to as a relevant consideration in the planning scheme, necessarily embraces some consideration of the effect on use of the sequence of development....

It was satisfied ..., because of strategic planning considerations, the determination of the application should be regarded as premature.

Such cases may be thought to involve the application of an underlying notion of the balance of convenience. If the determination of a permit application under the current controls has the potential to materially impact upon the implementation of a relevant strategic plan or seriously entertained planning proposal then it may be refused as premature. It may not be in the public interest to grant the permit if the granting of the particular application has the capacity to materially impact upon the satisfactory implementation of a plan of broader strategic significance.[40] [Emphasis not in original]

1. In the current proceeding, the "opportunistic" timing of the proposal at a critical stage in the implementation of the nearby activity centres was contended by the Applicant. We consider his Honour's observation is relevant on that point; that is, whether the grant of a permit would materially impact in the implementation of activity centre policies and the implementation of plans for Point Cook and Williams Landing. We find that it would for reasons already given.
2. We also refer to our findings on the first ground of appeal in light of his Honour's reference that such an impact must be "material". Our conclusion on the first ground was that there was insufficient evidence to find that approval of the permit application before us would undermine the economic viability of either the Point Cook Town Centre or Williams Landing to such an extent that warrants rejection of the permit application. We did, however, agree that there could be some impact, as agreed by all of the planning witnesses. Economic factors are one of a series of activity centre policy drivers.
3. Taking into account the broader range of goals for such centres, we are persuaded that the proposal would materially impact upon the satisfactory implementation of the Point Cook and/or Williams Landing activity centres. There is no net community benefit to warrant the grant of a permit for such a substantial development outside of an activity centre. Our conclusion has given weight to potential issues with the gaming component of the proposed hotel but, in the circumstances of this case, we have not found these to produce a fundamental conflict or over-riding argument to allow the proposal on the review site contrary to the directions of Clause 12.01-2.
4. We do not depart from our conclusions when comparing the expected outcomes of the proposal with any continued implementation of the approved permit for use and development of the review site. Besides the gaming argument, the other main ground relied upon by the Respondent before the Council was that the proposal would achieve significant employment benefits. We have accepted there would be employment benefits. But Mr Cook's evidence was that the numbers of persons expected to be employed if the current permit was continued to be acted upon would be around the same as the proposal while Mr Milner said the numbers associated with the proposal would be equivalent or perhaps greater than achieved under stages 5 - 8 of Permit WYP0061/05.02. Therefore, when contrasted with continued development of the Light Industrial Area under that permit, there would not be a significant numerical employment benefit and no identifiable over-riding benefit.
5. Similarly, although it was argued in evidence for the Respondent that the proposal is a superior design outcome compared with the approved permit, we do not consider either design is necessarily superior - both have their advantages and disadvantages.
6. Finally, we believe our conclusion is consistent with Tribunal decisions that differ in their factual circumstances but uphold this critical element of state policy. There are multiple several Tribunal decisions where proposals involving substantial facilities (including major retail projects) described as out-of-centre developments have been refused on strategic grounds relating to the application of activity centre policy and orderly planning. We have cited some of them in paragraph 62 above. Next we refer to two cases where proposals with more limited impacts have been found by the Tribunal to be acceptable in terms of activity centre policy, applicable local policies and their own facts.
7. In Greater Dandenong CC the Tribunal considered an application by one Council to overturn the decision of another Council. That involved a proposal for a residential hotel for 160 persons outside an activity centre. In deciding to grant a permit, the Tribunal had regard to the scale of the proposal and the residential-based nature of the use (as compared with a retail use).[41] That decision was also in the context of a favourable report by an independent panel for a residential hotel on the subject land.
8. The proposal before us involves a substantial entertainment/recreational uses and can be distinguished from that case in terms of both use and scale.
9. In Omni Property Group[42], the Tribunal allowed an Aldi store in a location outside a designated activity centre. That was in inner Melbourne involving a building that had approval for retail floorspace in an area found by the Tribunal to have characteristics of an activity centre. The Tribunal found there to be a net community benefit achieved having regard to these considerations and, inter alia, the modest size of the facility. Thus, we consider the circumstances are again distinguishable from the current proceeding where the review site's setting in Point Cook is not akin to an activity centre and a very sizeable hotel and reception centre are proposed.
10. In conclusion, for the above reasons, we have not been persuaded that a substantial out of centre development of the type proposal here would produce a net community benefit that warrants permit approval.

1. We will set aside the decision made by the Council and order that no permit be issued. We find the proposal would not produce an acceptable outcome in terms of the directions of state policy in relation to the orderly planning and development of activity centres.

[1] Plus related holding company Galaway Holdings Pty Ltd.

[2] Agreement was been reached between the Council and permit applicant on these matters.

[3] Permit WYP0061/05.02 with the review site being Stages 5 - 8 in that Permit.

[5] Based on the Laverton Employment Node and Major Activity Centre Incorporated Plan, July 2006.

[6] Introduced following the report of the Priority Development Panel "Response to Referral or Advice from the Minister for Planning in relation to Laverton RAAF Base", Reference PDP05/17, July 2006.

[7] Based on plans that we substituted at the hearing without objection by any party.

[8] Decision guidelines at Clause 33.03 have been considered by the Tribunal. In assessing the proposal against all of the permit triggers we have considered Clauses 11, 12, 15.05, 15.10, 17.01, 17.02, 17.04, 18.01, 18.02, 19.03 of the State Planning Policy Framework; Clauses 21, 22.01 (Werribee West, Wyndham North and Point Cook Growth Area Planning Policy) of the Local Planning Policy Framework; and the decision guidelines at Clause 65. We have had regard to a series of reference documents cited in these Clauses including the Point Cook Concept Plan 2000 cited in Clause 22.01.

[9] Clause 52.27. No decision guidelines are included in this Clause.

[10] Clause 52.06. Decision guidelines included in this Clause have been considered by the Tribunal.

[11] We have considered the applicable Clauses relating to the Overlays and their Schedules as relevant.

[12] Victorian Commission for Gambling Regulation decision dated 16 May 2007.

[13] The Commission's approval for gaming on the site is under the Gambling Regulation Act 2003 and is not subject to our review.

[14] Both submissions are found on page 7 of the Council's submission.

[15] Kentucky Fried Chicken Pty Ltd v Gantidis and Anor [1979] HCA 20; (1979) 140 CLR 675 at 687.

[16] Drawn from Collins v Shire of Nillumbik & Hak, an unreported decision of the Administrative Appeals Tribunal No. 1995/23263 cited in Ram v Whitehorse City Council (1997) 19 AATR 281, Leonora Group (Wonthaggi) Pty Ltd v Bass Coast SC [2003] VCAT 233 and Austwide Trading Pty Ltd v Moonee Valley CC [2007] VCAT 386.

[17] As cited in Melbourne 2030 and, in relation to local policy, at Clause 21.05-5.

[18] Clause 21.05-10 deals with enhancement of image and appearance.

[19] DSE's Growth Area Framework Plans 2006 similarly show these areas as proposed employment (map after page 24) with the plan stating that new employment opportunities along the Princes Highway will be encouraged. This is a reference document at Clause 12 of the Scheme.

[20] We return to this strategy later in relation to the designation of activity centres.

[21] A purpose of the Industrial 3 Zone and a decision guideline at Clause 65.01.

[22] It is common ground that the proposal cannot be described as being of metropolitan or greater significance and thus the third part of the strategy is not argued by any party as being relevant.

[23] Mr Dreyfus' opening submission at paragraph 12, page 4.

[24] Extracts from pages 4 and 7 of the Council's submission.

[25] Although the site was described by him as being "out of centre" on, for example, page 17, when referencing gaming.

[26] For example, Knox CC v Tulcany & Ors (2004) 18 VPR 299 at 235.

[27] The relevance of the existing situation is referred to in Davids Distribution Pty Ltd v Maribyrnong CC (1997/38010).

[28] Branbeau PL v Victorian Commission of Gambling Regulation (Occupational and Business) [2005] VCAT 2606 at paragraph 49.

[29] Relying on Taking Action on Problem Gambling (2006) and The Final Report of the Regional Electronic Gaming Machine Caps Review.

[30] We have referred above to the position adopted in evidence as to proximity to the activity centre.

[31] Victorian Commission for Gambling Regulation decision dated 16 May 2007, at page 24.

1. [32] Refer Clause 12.01-2 as to desired activities and a strategy "Broadening the base of activity in centres that are currently dominated by shopping to include a wider range of services over longer hours".

[33] Mr Milner referred to the reception centre as a regional facility and the family-style hotel as a local facility.

[34] For example Morgan and Griffin PL v Bass Coast SC [2006] VCAT 1961 relating to a supermarket in a Mixed Use Zone.

[35] West of Melbourne Investments Pty Ltd v Brimbank CC [2005] VCAT 1865 - a market proposed in an Industrial 3 Zone.

[36] Walsh v Maribyrnong CC [2006] VCAT 2282 relating to a Dan Murphy's liquor store in a Mixed Use Zone. Azzure Investments Pty Ltd v Port Phillip City Council [2004] VCAT 2027 considers a supermarket in a Mixed Use Zone.

[37] Dalglen Nominees Pty Ltd v City of Hume (AAT Appeal no. 95/16204, unreported) at paragraph 12 cited with authority in Appeal 1996/09831 Prudential Projects P/L v Shire of Melton and Anor (unreported).

[38] Citing SMA Projects v Port Phillip CC [1999] VCAT 1312.

[39] Burnside Properties Pty Ltd v Melton CC [2000] VCAT 2326 at paragraph 403.

[40] Burns Bridges Services Pty Ltd v Greater Bendigo City Council & Ors [2005] VSC 422 at paragraphs 40 - 42.

[41] Greater Dandenong CC v Casey CC [2005] VCAT 466 at paragraphs 24 and 25.

[42] Omni Property Group v Port Phillip CC [2006] VCAT 907.