Mr Dominic Scally of Best Hooper Lawyers. Mr Scally called as expert witnesses:

Mr David Song, Consultant Planner of Aspect Planning P/L.

1 To the applicant, development of land on the corner of Ballarat Rd and Jamieson Avenue in Footscray represents an ideal site to meet the operational and marketing needs of a Dan Murphy's liquor store. It is a derelict site on a major road that presents to a target drive home commuter market. From Maribyrnong City Council's perspective, however, the proposal does not meet the intent of the planning provisions and presents strategic issues about "out-of-centre" retail development.

2 The central issue to this matter is one of land use policy objectives being met. Amenity, traffic and landscape issues are matters that in Mr Song's words "could be dealt with through conditions."

3 Both parties relied on expert planning evidence with the applicant submitting a number of reports in respect to landscape, traffic and economic planning. The Tribunal undertook an unaccompanied inspection of the site on the afternoon of 26 October 2006.

4 At the commencement of the hearing, we granted leave for the substitution of applicants name from Walsh Building Services Pty Ltd to Kilkenny Walsh Pty Ltd.

5 There being no objections the amended plans of 22 September 2006 circulated to all parties before the hearing were adopted for the purposes of this permit application.

6 The subject land of 3,860 sq m is located on the south-east corner of Ballarat Rd and Jamieson Avenue, Footscray. The site is bound by Ballarat Rd (north), Jamesion Avenue (west) and open space parkland (south and east). Further to the west is medium density residential development. North of Ballarat Rd is parkland, a car park, apartment building and hotel.

7 The application is for use of the land for a shop (more specifically a Dan Murphy's bottle shop) with associated display of advertising signs and on-site parking.

8 Both parties set out the relevant planning controls for this site. To summarise, these consisted of a Mixed Use zone (MUZ) with Design and Development Overlay (DDO-1) and a Land Subject to Inundation Overlay (LSIO).

9 The proposed use triggers the need for a permit, being a Section 2 use under the MUZ. Permits are also triggered for the development (buildings and works) under the zoning and both overlays. The proposal for advertising signs and a reduction in parking spaces[1] also trigger the need for a permit.

10 Applicable State policies to this matter that were drawn to our attention encompassed those relating to Activity Centre development (more particularly out of centre development), settlement patterns, economic development and design[2]. Relevant elements of the MSS include those addressing the pressures arising from changes in retail patterns, encouragement of commercial activity and development, including retail, through the Activity (Retail) Centre Framework plan[3].

11 At the local policy level, the provisions for Mixed Use zones, most particularly Clause 22.02-4 apply to this site.

12 We concur with Mr Song's comment that the fundamental matter before us is whether the proposal is supported by policy or rather, policy supports the proposal. The crux of the matter therefore comes down to:

•

The appropriateness of the application as an out-of-centre development and whether it meets the test of "net benefit to the community in the region served by the proposal[4]"; and

•

The appropriateness of the application having regard to MUZ Policy 4 that is applicable to the land.

13 Applicable state and local policies seek to discourage out of centre development of retail[5] activities except under circumstances of net community benefit. The Melbourne 2030 strategy requires that there are convincing net community benefits[6].

14 Mr Scally sought to demonstrate that the proposal met the net community benefits test through local employment and from discounted liquor being available to a market not yet being served by a Dan Murphy's outlet. These benefits are largely of an economic nature.

15 Clause 12.01 is silent on what constitute a net community benefit however, guidance can be gained from the Out of Centre Retail Activity Assessment Criteria[7] which summarises criteria to encompass:

16 We find that the economic benefits (employment and retail savings monetary value) are not sufficient to override the lack of support from consideration of the site's strategic and statutory policy context and local character (as discussed below).

17 The level of employment at the site, by the applicant's own submission will amount to a few fulltime staff positions and some part time employment. While it is arguable about the extent of retail (monetary) benefits that the development offers to the regional community, such a benefit can potentially be achieved from other locations within the region. Indeed, the applicant's plan of current store locations and patron post code surveys demonstrates an overlap in locations and catchments served in the northern and eastern suburbs. It would be unreasonable to expect the applicant will limit their expansion into the western suburbs to this one store and hence continue to provide the stated regional retail benefit. We therefore find that the stated regional economic benefit is not particularly tied to this site and could well be diluted by future developments.

18 We conclude that at the policy level the ability for this proposal to provide a net community benefit is overstated, unconvincing and on balance is not supportive of the development.

19 It was suggested by Mr Scally that the strategic level of MUZ Policy 4 was too general and insufficient in detail to guide us on the specifics of how this site may be used. It was also suggested that residential or mixed use would not be a good outcome given the isolated nature of the site. We disagree finding that applied to this site the MUZ-Policy 4 demonstrates an intention to integrate the site into the residential land use that predominates on the south side of Ballarat Rd.

20 It is useful to reflect on the history of this site and on other MUZ locations within the area to provide some further context to this matter.

21 As noted by all parties the site was formerly a (petrol) service station. We are aware that this use was established prior to the residential development of the former industrial land to the west of the site. Thus the two former land uses can in some way be considered to have had a complimentary setting, i.e. industrial and commercial land uses. However, with the redevelopment of the industrial land to residential use, the commercial use fell into a somewhat isolated position.

22 It seems to us that while the mixed use zone is at first glance, at odds with the context of surrounding land uses, the site's history provides an understanding of how it came about and why integration into the residential use would be the main objective.

23 Other locations that are currently zoned MUZ include larger parcels of land that fall within three policy precincts and smaller parcels that fall within Policy 4. The three policy precinct areas are specifically nominated as areas where mixed commercial use and / or residential use are specifically encouraged to address site issues and policy objectives. Policy 4 was prepared to address "...either very small former local business zones with declining retail functions or small, isolated former light industrial zones (one or two blocks) in otherwise continuous residential areas with good amenity..."across a range of various sites.[8] While we accept that this site is not strictly within a continuous residential area, as put by Mr Scally, we find it lies at the commencement of such an area that extends for a considerable distance along the south side of Ballarat Road. It follows that this policy and its objectives are applicable in this context.

24 Our inspection of a sample of the smaller MUZ parcels also confirms land uses are typically former local shops now being converted to dwellings or are local convenience strip shops that are integrated into the surrounding residential setting.

25 Mr Song informed us, and we accept given the site's land use history, that the site was zoned as Mixed Use (Schedule 4) in anticipation of it eventually being available for redevelopment[9]. Council contends that such development should have a residential focus in line with the policy objectives of Cl 22.02-4 and the site's context. The applicant's submissions suggest that such development may not be viable or produce a substantive outcome for residential dwelling supply, and by way of an alternative, the retail use is a more suitable and realistic development.

26 We find that despite the assertions to the contrary, there remains a possibility of extending the adjoining medium density patterns and building layouts onto this site and produce a more orderly and integrated planning outcome. Our inspection identified that the site is well screened from the eastern approaches by existing vegetation with a back drop of the medium density residential dwellings. The use of the site for residential dwellings would have a more harmonious integration both visually and from a land use perspective than a single retail development.

27 It follows that we can find no support or benefit for a single use retail development over the stated intentions of council's policy, the zoning or the site's context.

28 The above discussion presents the formative matters of our reasons. However a number of other points were raised by Mr Scally in support of this proposal which we have not yet addressed. For the sake of completeness we have addressed a number of the more substantive points.

The site's context with other out-of-centre developments

29 We have found that the site's context is one that presents as part of a residential area adjoining open space / park land. Not only is the zoning not supportive of the development, it seems to us that the location of the proposed building would not sit well within this context. Numerous examples of other Dan Murphy developments cited to us, while being out-of-centre, are located in urbanised landscapes, and more particularly in commercial areas. Similarly, approval of out-of-centre retail developments cited during this hearing were not in or adjoining parkland[10] and were based in part on their compatibility with other surrounding commercial and / or retail land uses.

30 A single use, stand alone retail development of the scale proposed would, however it was dressed up by design and landscaping, sit at odds with the predominant land uses of residential dwellings and open space. To our minds such an outcome will not sit well with the concept of orderly planning and an equitable outcome for surrounding residents and users of the parkland.

31 Mr Scally highlighted that the mode of market capture for Dan Murphy operations is based to a large extent on passing commuter traffic, particularly the end of week evening traffic. As such the operations are not highly dependant on public transport networks and hence out-of-centre activity could be supported by this market targeting.

32 We note from Mr Beal's evidence that the Ascot Vale site survey indicated a substantial proportion of patronage in the Saturday afternoon to early evening period. This corresponded to similar activity for the company's state averages. Thus while Mr Scally suggested that the lack of connection with a major public transport network was to a large extent negated by commuter shopping, the Saturday activity also suggests a reasonable proportion of purposeful vehicle trips to the site can be expected. Thus while we accept the commercial aspect of capturing an existing passing trade, the development would nevertheless generate some single car use trips, the opposite of state policy and the objectives of activity centre and near centre development policy.

33 Mr Henshall suggested that there were no suitable sites within or near to the Footscray activity centre, a matter that was subject to some discussion. Regardless of the argument about a lack of suitable sites and hence the default to this site, this line of logic holds little weight when considering the planning merits for the subject site's development. As put by Mr Song succinctly at the start of his presentation "Council would welcome a Dan Murphy's outlet...but not at this site." We agree. The lack of suitably zoned sites is not a reason to override orderly planning outcomes.

34 For the reasons we have outlined, this proposal fails at the strategic and statutory policy levels. The development of an out-of-centre, stand alone retail outlet is not supported at this site under State or local policy and is inconsistent with the site's zoning and surrounding land use.

35 The decision of the Maribyrnong City Council is upheld and no permit should be issued for the development.

[1] The applicant applied for a lessor rate than that under of Clause 52.06-5.

[2] More particularly Clauses 12.01-2, 14.01-1, 17.02 and 19.03.

[3] Clauses 21.02, 21.04-4 and 21.04-6.

[4] Clause 12.01-2.

[5] Clauses 12.01-2, 21.04-4 and 21.04-6.,

[6] Page 10, (Draft) Melbourne 2030 Implementation Plan 4: Activity Centres.

[7] Prepared by Ratio Consultants for the Department of Sustainability and Environment, January 2005.

[8] Clause 22.02-4, Policy Basis.

[9] We note that a residential zoning of this land during its use as a service station would not have been appropriate as it is in excess of the size limits under the discretionary use provisions found at Table 2 of Cl 32.01-1.

[10] Cases cited included Greater Dandenong CC v Casey CC [2005] VCAT 466 (18 March 2005); Western Gateway Centre Pty ltd v Maribyrong CC [2003] VCAT 1382 (2 October 2003) and Omni Property Group v Port Phillip CC [2006] VCAT 907 (18 May 2006).