Mr Bill Kusznirczuk, Planning Consultant. Mr Kusznirczuk called Mr John Henshall of Essential Economics as a witness.

1 This is the review of a decision to grant a permit for a market with associated building and works at 81 - 85 Henry Street, St Albans by Brimbank City Council.

2 This application originally included 82 Henry Street, St Albans. The site at 81 - 95 Henry Street is zoned Industrial 3 while 82 Henry Street is zoned Residential. The application was cast in the terms of a change of use from a reception centre to a market and associated buildings and works.

3 The Responsible Authority issued a Notice of Decision to Grant a Permit subject to conditions some six months after the application was made. Following an original aborted application for review the present applicant West of Melbourne Investments Pty Ltd, applied for review of a decision on a number of grounds. These grounds included:

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inappropriate location;

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proper and future planning of the area;

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adverse impact on existing and future retail opportunities in St Albans contrary to the LPPF and MSS policies.

4 At the hearing the application was amended by the deletion of the site at 82 Henry Street because being residential it cannot be used for the purpose of car parking for a use that is prohibited in that zone, being a market.

5 81 - 95 Henry Street is located on the south side of Henry Street and provides an interface between the Industrial and Residential Zones. It is 1.3km north of St Albans Railway Station and 1.2km north of the St Albans Shopping Centre. It has an area of 6,621m2 and is flat. It is occupied by a building that has been used over 20 years for a reception and convention centre. This also has a large parking area on either side of the building.

6 Henry Street is a local street that runs between two major streets the East Esplanade and Arthur Street and is intersected by Theodore Street that contains a bus route. There is a mixture of commercial, non-residential and industrial uses including a Church and a Club near the subject site. Opposite to the north are residential properties. Many of the industrial uses are junkyard and panel beating type uses.

7 The proposal is to create an opportunity for up to 40 stalls within the fabric of the existing building. The stalls will provide for produce such as fruit, vegetables, meat, clothing and other items. An outdoor eating area will also be situated in the external area of the site. Hours of operation are:

8 The land is zoned Industrial 3. To its south is more Industrial 3 Zone and to the north Residential 1 Zone. Under Clause 33.03-1 a permit is required for the use of the site as a market and under Clause 33.03-4 are for buildings and works. There are no Overlays over the site.

9 For the record the parties all tabled written submissions, photographs and other documents to which they spoke. These together with Mr Henshall's evidence statement are contained on the Tribunal's file.

10 West of Melbourne Investments Pty Ltd is the owner of the Big Sam's Market that is located in the core retail precinct of the St Albans Activity Centre. The Big Sam's is the main fresh produce market within the Greater St Albans area serving a wide catchment. If a permit is granted for this proposal on the subject site it would create a competitor for the market that is already under some threat from fresh food premises located in a number of major shopping centres that surround the St Albans area. Simplistically this review could be seen as purely a competitive and commercial one. However, there are a number of strategic, policy and issues of merit that were raised by Mr Kusznirczuk and Mr Henshall that I believe go to the heart of this review and some of which are bigger than the commercial competition issues to which I referred.

11 Strategic planning for retailing normally refers to a hierarchy of centres starting at CBD through major activity centres down to the local shop. This hierarchy is reinforced in Melbourne 2030 that discourages, in its document "Planning for Sustainable Growth, Out of Centre Developments". In fact it states:

Out-of-centre proposals will only be considered where it can be convincingly demonstrated that the proposed use or development is of net benefit to the community in the region served by the proposal (Melbourne 2030 - Planning for sustainable growth, Oct 202, p55).

Then at page 55 of the Department of Infrastructure's "Planning for Sustainable Growth" it is noted under the heading of 'Out of Centre Development':

New single/use retail, commercial and recreational facilities that are remote from other attractions and from public transport generate more car trips and longer journeys than similar facilities that are co located and more easily accessible. Where development takes place distant from an activity centre that is 'out of centre', it is harder to provide access to services and facilities for all the population.

This form of development does not contribute to a local sense of place, and encourages people to use their cars more, thus increasing the cost to the community. It can also divert the activity necessary to sustain a thriving and diverse range of accessible facilities to existing activity centres.

Proposals for development and expansion of activities remote from activity centres will be discouraged by giving preference to locations in or on the border of existing activity centres.

12 It is also referred to in the DOI document on Activity Centres part of which was tabled at the hearing.

13 In relation to Council policies Clause 17.01-1 of the SPPF has an objective. This is:

To encourage the concentration of major retail, commercial, administrative, entertainment and cultural developments into activity centres (including shops, strip shopping centres) which provide a variety of land uses and are highly accessible to the community.

Commercial facilities should be located in existing or planned activity centres unless they are:

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New freestanding commercial developments in residential areas which have extensive potential population growth. ...

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New convenience shopping facilities to provide for the needs of local population in new residential areas ...

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Outlets of trade-related goods or services.

None of these apply to this subject site.

15 Mr Kusznirczuk submitted that this area is one of Victoria's five most disadvantaged with the second highest unemployment level in the State. It has, as he stated, some of the region's most significant activity centres that provide and increase an important service sector employment generator. It seems that the existing suburban area of St Albans has little ability for a further population growth and that any growth would be mainly infill. Mr Henshall stated this in answer of the question from myself.

16 In the MSS Clause 21.05 the Council's vision for the future includes:

Sites in older industrial areas will be redeveloped for new types of industrial and business use.

17 This clause also is significant and that it categorises St Albans Shopping Centre as a middle order activity centre together with Deer Park and Keilor Downs.

18 The clause also refers to mixed use redevelopments and Mr Baulch submitted that the Council's strategic planning has the area in which the subject site is located as a future mixed use area that would support industry, retail, commercial, recreational and residential uses. This mixed use criterion was used as one of the Council's major arguments as to the suitability of this site for the purpose of the market. The problem is that the site is not zoned for mixed use now. It is clearly zoned Industrial 3, a buffer zone, and supports some uses that are not industrial in nature but that is the nature of an Industrial 3 buffer zone to residential zones.

19 Looking further at the retail and commercial policy in Clause 21.08 it states:

Council's Retail and Commercial Policy (Clause 21.08) has identified that, 'Brimbank is yet to realise its full potential as a location for shopping and commerce. The most effective way to build up the critical mass needed to sustain a vibrant retail and commercial sector is by concentrating these activities in major regional centres, supported by a network of other activity centres and neighbourhood centres.

20 Here again the Responsible Authority's own policies highlight the need for a hierarchy of centres for Brimbank to reach its full potential for shopping and commerce. The subject site answers none of these policies in a positive manner.

21 The Responsible Authority submits that there will not be "a significant impact on the viability of the St Albans Shopping Centre" because:

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the proposal is modest in terms of retail floor space proposed;

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it will provide a different form of retailing to that which is available in the St Albans shopping centre.

22 It states the location of a market on the review site in a proposed mixed use residential area would be consistent with this policy. This was supported by Mr De Giovanni who was critical of the effectiveness of the St Albans Activity Centre because of its fragmentation by the railway line and Main Road East/West. He indicated that this, together with a lack of parking opportunities and traffic issues, make St Albans Activity Centre less than ideal location for retailing. He also supported the Responsible Authority's contention that the "handful of non-food stalls at the proposed market will hardly compete with the over 7000m2 of non-food shopping space".

23 The Council has recently released an Urban Design Framework for the St Albans Centre developed in 2002 by David Lock Associates and worked on as a sub-consultant by Mr Henshall. This Framework allows for an extension of retail floor space within the current St Albans Activity Centre of some 1200m2. Mr Henshall was concerned that if this market on the subject site is permitted it will take up some 970m2 of that available space leaving only 230m2 for other premises within the centre. This allowance is to provide for additional floor space over the next five years until 2011. The Urban Design Framework also has an expectation that there will be redevelopment of sites within the centre that may allow for increase in floor space allocation.

24 It was put to Mr Henshall by Mr Baulch and Mr De Giovanni that he had relied heavily on the UDF in his analysis of the impact the proposal would have on the existing centre, in particular Sam's Market and because it was an unincorporated document it should be given lesser weight than incorporated documents or policies. Mr Henshall agreed that it was a reference document but believed that, because the Council has adopted it, it places more importance on it. However, he also indicated that he had used the planning scheme policies on economic development, retail and commercial activities that he believed were relevant. He was of the opinion that, if the market was on the periphery of the existing centre, then it would make more sense than for it being located well away from any activity centre. I agree with him.

25 In my view this proposed retail activity is well removed from any other retailing although there is a small neighbourhood centre several hundred metres up Theodore Street. It is as it were in the back blocks. While it does have some connectivity with a bus route on Theodore Street it is well removed from the railway station. The type of activity that goes on at a market such as proposed requires people to take produce away from it in bulk and, if one is a pedestrian, then there needs to be a regular transport connection within very close proximity. Examples of this are the Footscray Market where there is both train and tram activity close by, Victoria Market the same and Dandenong Market that has public transport nearby.

26 At the hearing I gave some examples of Saturday and Sunday markets that also had fresh produce in the Geelong region, Sydney and Canberra. However, I agree with Mr Henshall that these are somewhat different from this proposal that will operate 4 or 5 days a week. I find that this subject site is poorly located and well removed from any other commercial and retail node to have any relevance in the retail hierarchy. I am not about to grant permits for poorly located retail and commercial developments.

27 The site is not in a Mixed Use Zone at this stage and if this is a relevant criterion then perhaps the Responsible Authority should wait until the site is rezoned appropriately to further consider such matters.

28 Mr Kusznirczuk in his submission quoted several previous Tribunal decisions in relation to retail activity. He quoted Burnside Properties v Melton Shire Council (1999/103954) where the Deputy President, Mrs Bruce, stated at para 396:

In Burnside Properties v Melton Shire Council (1999/103954) Mrs Bruce, at paragraph 396 noted:

395. It becomes important, in considering whether the "edge" location could be justified with reference to its market driven desire to attract a high percentage of patrons from outside the Growth Area, to look at whether the location of this facility would detract from the orderly provision of accessible retailing and community services to serve the Growth Area.

396. The greatest risk to this orderly provision is that once the Activity Centre hierarchy is seen to be abandoned to suit a particular opportunistic use, it becomes more difficult to apply it. Erosion of the commercial base of the higher order centres is made easier. Mr Whitney was of the view that if you allow uses that are supposed to be located in the Activity Centre to locate elsewhere, you can lose the Activity Centre. Mr Biles pointed to the success of the former metropolitan (now State) Activity Centre policy, which has been firmly applied.

29 In conclusion, I find that the proposed change of use has no policy support, is inappropriately located away from any retail/commercial/community node and is poorly located. No permit will issue.