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

Walker Corporation Pty Ltd v Wyndham CC [2007] VCAT 1396 - VCAT 2007 case summary — Zoe

[20]

In addressing the two grounds relied upon by the Applicant, we start with this question because it can be disposed of quite promptly.
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.
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.
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.
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.
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.
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).
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.
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.
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.

[26]

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.
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.
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.
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.
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.
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.

[27]

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.
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.
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.
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).
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.
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.
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.
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.
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:

[46]

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.
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.
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).
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.
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:

[56]

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.
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.
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.
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.
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.
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.
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.
The proposal before us involves a substantial entertainment/recreational uses and can be distinguished from that case in terms of both use and scale.
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.
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.

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Walker Corporation Pty Ltd v Wyndham CC [2007] VCAT 1396 (24 July 2007)

Parties

Legislation Cited (1)

Cases Cited (1)