Margaret Hancock in person and on behalf of Phillip Island Conservation Society Inc with Terry Nott, Architect.

Maurice Schinkel on behalf of Friends of the Koalas Inc.

Anne Davie in person and on behalf of Friends of Thompson Avenue Golden Cypress.

There was no appearance by Richard Fitzgerald, Elizabeth Davie, or the Rotary Club of Phillip Island and San Remo Inc.

1 Wilbow Corporation Pty Ltd sought approval from Bass Coast Shire Council to develop a new supermarket, speciality shops and ten dwellings above some of the shops on the Boomerang Caravan Park at 119-125 Thompson Avenue in Cowes.

2 Bass Coast Shire Council issued a notice of decision to grant a permit with various conditions in November 2005.

3 This matter now involves two applications for review.

Application P3111/2005[1]

Wilbow Corporation is seeking a review of various conditions which require:

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A 5 metre building setback from the Thompson Avenue frontage

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Provision of disabled access to the dwellings

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Relocation of staff amenities

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Deletion of reference to trees on an abutting site

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Replacement vegetation

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Variation to an acoustic treatment at the rear of the site

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A car parking cash contribution of $36,000 for three car parking spaces removed from the Thompson Avenue road reserve

4 This is an application by various objectors against the decision of Bass Coast Shire Council to grant approval for the supermarket, retail and residential use and development.

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Use and development of a supermarket with a floor area measuring 2800 square metres (plus a 200 square metre mezzanine floor area),

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Speciality shops, including a kiosk, with a combined floor area of 1436 square metres,

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Ten 2 bedroom residential apartments situated above some speciality shops which front Thompson Avenue,

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203 car parking spaces associated with the retail component,

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12 car parking spaces for the residential component,

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A public toilet,

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Creation of two new vehicular accessways to the subject site from Thompson Avenue (one serving the supermarket and the other the dwellings), together with line marking in Thompson Avenue to create right turn lanes into the supermarket car park and into Hollydeen Court opposite.

•

Removal of a number of native trees from the subject land and removal of limbs of a number of Golden Cypress trees located in the Thompson Avenue roadway to allow for sufficient space for high vehicles to enter and exit the site.

•

Removal of a three angled vehicle parking spaces in the Thompson Avenue road reserve.

6 The subject site is located on the eastern side of Thompson Avenue about 60 metres south of Church Street in Cowes. The site is known as 119-135 Thompson Avenue. The subject site is currently part of the Boomerang Caravan Park. Although a section of land to the south measuring 43 metres wide by 46 metres deep is not included in the site, it has been identified on the plans as "Future Development Site".

7 The land has a frontage of 97 metres to Thompson Avenue and a depth of 100.58 metres. The subject site would be an inverted L shape with the future development site cut out of it. Land area is about 12,000 square metres.

8 Land to the south is the Islander Tourist Park. Land to the east is the Bushy Park Tourist Park having a frontage to Church Street. Land to the north at 117 Thompson Avenue comprises an old dairy which is built up to the street frontage. This building is currently used as a shop. On the other side of Thompson Avenue land uses comprise a mix of residential and commercial and include a petrol filling station.

9 This section of Cowes Township between Church Street and Settlement Road is zoned Mixed Use and currently comprises a number of large sites (more particularly on the eastern side) with various setbacks and is used for various businesses. The main retail precinct of Cowes is located further to the north. More particularly it is to the north of Chapel Street and extends to The Esplanade.

10 Thompson Avenue is the primary arterial road for Cowes that runs north south. It is the major thoroughfare of Cowes. It contains an avenue of established Golden Cypress trees commencing at the intersection of the Phillip Island Tourist Road, the Cowes Rhyll Road and Ventnor Road. We were told this avenue of trees is listed under the register of the National Trust of Australia and classified as a matter of regional significance.

11 Cowes is situated about 2 hours drive south east of Melbourne and is the principal township on Phillip Island. Cowes is the main activity centre on the island and provides a range of retail, business, accommodation and community services to serve the resident population and visitors.

12 The subject site and land immediately to the north, south and opposite are zoned Mixed Use under the Bass Coast Planning Scheme. The relevant purposes of the zone are:

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To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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To provide for a range of residential, commercial, industrial and other uses which complement the mixed use function of the locality.

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To encourage residential development that respects the neighbourhood character.

13 In this zone a shop is a Section 2 (Permit Required) use subject to clause 32.04-1. A permit is also required to construct two or more dwellings on a lot and to construct a building or to construct a building or carry out works associated with the section 2 use under clause 32.04-7. Permission is also required for reduced car parking provision pursuant to clause 52.06-1, for access to a road zone under clause 52.29 and to erect signage pursuant to clause 52.05.

14 The site is not affected by any overlay controls.

15 There are various planning controls and policies of relevance in this application including:

• Clause 11.03 Principles of Land Use and Development Planning.

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Clause 14.01 Planning for Urban Settlement.

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Clause 15.01 Coastal Area

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Clause 15.09 Conservation of Native Flora and Fauna.

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Clause 15.12 Energy Efficiency

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Clause 16.02 Medium Density Housing

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Clause 17.01 Activity Centres

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Clause 18.02 Car Parking and Public Transport Access

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Clause 18.03 Bicycle Transport

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Clause 19.03 Design and Built Form

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Clause 21.04 The Vision

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Clause 21.05-1 Settlement

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Clause 21.05-4 Economic Development

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Clause 22.04 Cowes Commercial Area

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Clause 52.34 Bicycle Parking

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Clause 55 ResCode

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Clause 65 Decision Guidelines

16 At the review hearing each party made oral and or written submissions. The Tribunal was provided with locality plans, photos of the subject site and locality, aerial photographs, expert witness reports, copies of the Phillip Island and San Remo Design Framework (2003) and extracts of Local planning policy documents. All witnesses were available for cross examination.

17 At the commencement of the hearing Mr Pitt sought leave to substitute the plans in the application. There was no objection and these plans were duly substituted[3]. As there was some debate about the detail of the entrance to the development we afforded objectors an opportunity to make further submissions on this altered detail.

18 At the commencement of the hearing a number of parties sought leave to be parties in both matters. Mr Pitt raised no objection to various parties making submissions concerning both applications for review. We note however that some of these late parties did not appear at the hearing.

19 After the hearing we received further submissions from Pauline Taylor and the Friends of the Koalas Inc. A responding submission was received on behalf of the Applicant. We have taken those submissions into account.

20 The site and surround, and the Cowes Township, were inspected after the hearing.

21 We do not propose to outline all the various submissions received in this application but rather to focus on a number of the main issues raised in this review. These can broadly be identified under the following:

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Is this an appropriate location for a supermarket and retail outlet with a residential component?

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The adequacy of car parking for the retail activity.

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Traffic management.

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The adequacy of the setbacks from the Thompson Avenue property frontage and other urban design issues.

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Protection of the Golden Cypress Avenue.

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Native vegetation issues.

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The residential component of the development.

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Off site amenity issues.

22 Clause 11 of the Planning Scheme seeks to provide for the fair, orderly, economic and sustainable use and development of land. Planning authorities and responsible authorities are responsible for the effective planning and management of land use and development in their districts for the broad interest of the community, through the preparation of strategic plans, statutory plans, development and conservation plans, development contributions plans, and other relevant plans to achieve the objectives of the Act. Planning authorities and responsible authorities must take into account and give effect to both general principles and the specific policies applicable to issues before them to ensure integrated decision making.

23 We have difficulty accepting that there is strategic justification for the supermarket and related retail development on the site. We consider the Responsible Authority has made an ad hoc decision which may pre-empt the future shape and form of the Cowes Township. We consider the placement of a supermarket and related speciality shops has not been justified and will potentially lead to adverse or largely unplanned commercial development along the southern artery to the Cowes Township.

24 Our principle concerns with this proposal are that:

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It introduces a large retail development outside the main commercial/retail core of the township.

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Its relative separation from the Business 1 zone for Cowes.

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It is not specifically supported by the purposes of the Mixed Use zone.

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The site's mid block position does not have convenient vehicular access.

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There is a need to create a de-facto traffic intersection mid block to deal with all vehicle movements to and from the site.

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Some of the vehicle access treatments are tight and seem to rely on changing the fundamental street configuration in order to accommodate turning movements.

25 We acknowledge there is substantial pressure on the Cowes Activity Centre for a further supermarket. Given the flurry of recent activity in supermarket applications in the locality, we have little doubt that a site for a supermarket and related shops totalling nearly 4,500 square metres can be found to complement the Cowes retailing area.

26 During the review hearing we were advised of another planning application for a supermarket plus a future development site on the remainder of the caravan park site. In addition various parties referred to inconsistent council decisions on commercial development in recent years. These decisions included different approaches to building setbacks along Thompson Avenue and different car parking ratios.

27 We were alerted to the Phillip Island and San Remo Design Framework, a document which was prepared and adopted by the Council in 2003. However it really has no statutory force because it has not been incorporated into the planning scheme. Indeed, in the planning scheme there is little policy guidance for this type of use. Clause 22.04 - The Cowes Commercial Area only relates to land between Chapel Street and The Esplanade, which is well north of this site, and therefore gives no assistance.

28 The Business 1 zone is usually the zone that you would expect to see identified for the primary retailing and business section of an activity centre, unless there is clear strategic and policy reasons to do otherwise. In this case the site is remote from the Business 1 zone and the current retail core of Cowes. We remark that even if the Business 1 zone does not fully correspond to the primary or core retail area in Cowes, the subject site is nearly a full block removed from it.

29 Clause 21.05-4 is relevant to the issue of whether there is strategic justification for the proposal. This clause "encourages retail activities to locate within the Cowes Business Centre". We are not sure whether that means the Cowes Commercial Area as identified in the map to Clause 22.04 or some larger area.

30 We also note that one of the strategies in Clause 21.05-4 is:

To facilitate the establishment and further development of new enterprise in the Shire, particularly those that generate new employment opportunities. Council will also engender an atmosphere of certainty for the establishment of such enterprises.

31 We do not see this strategy as sufficient justification for placing a large retail complex in a Mixed Use zone which is relatively remote from the main Business 1 zone.

32 We acknowledge Ms Heggen's analysis of the components of the town including the various mixed use precincts. She referred to this section of Cowes as a "transitional precinct" and also claimed it is inevitable there will be retail in this area. She claimed the "Oceania", a mixed use development on the opposite side of the street, represents the "next step" in the retail development of the town. We are not so sure this is the outcome derived from the Mixed Use zone or the current policies in the planning scheme. Rather it may be representative of what will happen if there is little guidance about the future size, shape and location of the retail/ commercial core. Whilst it is true retailing is a vital ingredient in this section of the mixed use zone, it is not necessarily the dominant outcome sought. Rather the MSS and Design Framework are trying to promote dwellings above shops.

33 Ms Heggan provided a detailed analysis of the precincts of the town and amongst other things she identified the following:

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There is already retail/commercial south of Church Street.

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The proposal would extend retail activity but not change the focus of activity at the north, especially for tourists.

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It is appropriate to have day-to-day shopping further to the south.

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The Design Framework sees this area to the south as potentially higher (3 storeys).

34 Ms Heggan conceded that it would be of assistance if the Council described how this area should develop. However, she did not see the absence of any specific guidelines as a barrier to approval of the proposal, given the MSS and her analysis. Whilst we found Ms Heggen's analysis coherent it does not represent current policy.

35 The best guidance we could find was in the Design Framework. It states:

If there is demand for another supermarket in Cowes, encourage its siting within the primary commercial centre north of Church Street (if sufficient land is available).

36 The Design Framework acknowledges that it may be difficult to consolidate a large site in the Business 1 zone. However we had no evidence that all possible sites had been examined. Realistically this matter should be examined by the Council in a strategic planning exercise

37 We examined the Design Framework and whilst it suggests a number of relatively predictable urban design outcomes there is nothing in the Framework to suggest that a relatively large retail facility is anticipated in this section of Thompson Avenue. If anything the Design Framework relies on the current planning boundaries to identify or distinguish different roles / precincts of the Cowes activity centre.

38 We think the responses and submissions by various parties and interest groups is also a reflection of the lack of certainty and strategic planning for the Cowes activity centre. In this case there was open disagreement between different objectors, some of whom had their own vested interest or view of how Cowes should develop. We acknowledge that various individuals and groups have their own "vision" for Cowes but much of these are usually of a single dimension and reflective of their own personal preferences or interests.

39 Whilst we were advised that the Council had embarked on a car parking precinct plan in recent years, which was later abandoned, we think that this probably reflects a lack of coordinated approach to strategic planning for a township like Cowes. We think this situation is unfortunate but the net result of such lack of guidance and certainty is that the Council is being exposed to various ad hoc planning proposals. In many respects these projects may not be totally inappropriate in themselves but collectively they add up to a discordant approach to planning and land development.

40 After the Council had made a decision on this application there was an election. We found ourselves confronted with the unusual circumstance of the Responsible Authority having instructed its lawyers "not to defend the planning decision but only to defend the conditions". Whether this is politically motivated or not it is just another reflection of ad hoc planning decisions on the run.

41 We note with interest that in the week preceding the review hearing the Council had refused an application for a supermarket on land diagonally opposite (on the corner of Church Street and Thompson Avenue) on the basis of inadequate car parking. We were told that car parking was at a similar car parking rate to the ratio provided on this development. We have no difficulty with the quantum of parking provision proposed for this development.

42 These scenarios point to some glaring inconsistencies in planning decisions. Unless the Council embarks on a much more coordinated approach to strategic and statutory planning decisions it will continue to be confronted with ad hoc planning development proposals. It is also likely to be confronted with objectors who raise old planning standards in an effort to clutch at the only indicators of planning controls to demonstrate their concerns.

43 We suggest that the Council may wish, belatedly, to embark on some coordinated strategic planning work for the Cowes activity centre. We suggest that, at the very least, it should embark on a comprehensive car parking, traffic management, town planning and urban design strategy to examine the future of the town. The Council should not try to address one issue separately, as has been attempted, and apparently failed in the past.

44 Ms Piskuric argued that the Council considers that a 5 metre building setback from Thompson Avenue will respect the existing setbacks of nearby buildings and will promote a reasonable precedent for future development in the area. She claimed that a setback of 5 metres will also encourage a positive interaction between the uses proposed on the subject land and will greatly reduce any potential threats to the Golden Cypress trees.

45 Ms Piskuric put forward a number of justifications for a 5 metre setback. They can be summarised as follows:

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An informal study of the surrounding developments on Thompson Avenue determined that the average setback was approximately 5 metres.

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The primary reason for the setback requirement is to maintain the existing streetscape character of Thompson Avenue between Church Street and Settlement Road.

•

This section has a boulevard characteristic which differs from the section of Thompson Avenue between Chapel Street and The Esplanade. The latter is characterised by small buildings with zero setbacks and has a character of the main tourist shopping strip due, largely to the fact that the development is predominantly food oriented and the strong association between the street and the businesses is essential to attract customers given that there is so much choice.

•

While it may be argued that speciality shops forming part of the proposal have a similar street frontage to those on Thompson Avenue between Chapel Street and The Esplanade, the need for an on street presence does not apply equally to them.

•

It is likely the speciality shops will draw customers from the supermarket a short distance around the corner and that people are likely to make a planned trip to the supermarket centre, park their cars and then walk around the corner to the speciality shops to purchase additional items. Accordingly, there is less need for immediate contact between the street and the businesses.

46 Various objectors supported the Council's submission. They referred to setbacks on their own buildings, such as those opposite in Thompson Avenue, or to a requirement in the earlier Phillip Island Planning Scheme.

47 In the Design Framework the directions found under Thompson Avenue - General Action include:

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Maximise street frontage opportunities by ensuring that corner site developments actively address both streets.

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Establish a high level of interaction between indoors and outdoors by encouraging commercial developments such as cafes and convenience retail at ground floor along Thompson Avenue.

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Encourage active retail and entertainment uses at street level to create a vibrant pedestrian environment.

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Encourage shop top dwellings at level three or higher within the commercial areas to activate the street at night time.

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Concentrate all new retail development within the existing retail area of Cowes.

48 Under Thompson Avenue - from Church Street to Settlement Road the directions include:

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Encourage the development of high quality accommodation with commercial activity at the street level and first floor.

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Establish a high level of interaction between indoors and outdoors by providing commercial development such as cafes and convenience retail on the ground level.

•

Maintain existing streetscape character by positioning buildings with setbacks reflecting existing buildings.

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Maintain existing on street car parking arrangements.

49 In her evidence Ms Heggen claimed there is no unifying form, appearance or setback to buildings along Thompson Avenue. She observed that where buildings are setback from the front boundary, "A" frame signage boards are used to promote business names and services and goods and materials that are generally displayed in the setback area in order to attract shop attention and patronage. She claimed that the only reason to have a setback would be if protection of the trees required it. She considered that a hard edge is appropriate and that over time more buildings will have that hard treatment, including any building on the Future Development Site.

50 Ms Heggen considered the avenue of Golden Cypress trees which grace both sides of Thompson Avenue to be the single unifying feature of the street. She also claimed that a 5 metre building setback will have a negative impact on the design of the development and the street environs. She was unable to source any strategic justification for a 5 metre building metre setback along Thompson Avenue with the exception that the Council officer report to the Ordinary Council meeting referred to it.

51 Similarly, Mr Tyblewich considered that the critical urban design objectives informing site redevelopment are achieved without the 5 metre frontage setback. His evidence included the following:

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There is no consistent 5m setback along the street and thus no contextual rationale for a 5m setback.

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A footpath of 3m is wide enough where there is an "active frontage" and it can accommodate "high trafficked footpath".

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The Design Framework seeks to maintain existing streetscape character with setbacks reflecting existing building but in this case there are no buildings to set appropriate setback.

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This is an area of change.

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The design creates a "corner" by the building location (a likely café) and the car park entry opening.

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The proposal would vastly improve the streetscape experience by creating activity.

52 We accept that if the site was to be developed with a major retail facility then a zero setback would be appropriate. Accordingly, we agree with the conclusion of both Mr Tyblewich and Ms Heggen about the inappropriateness of a 5 metre setback along this section of this street.

53 We acknowledge that the objectors who were owners and developers referred to a 6 metre setback in the redundant Phillip Island Planning Scheme which was replaced in 1999 by the current planning scheme, but it has little relevance to the current planning framework. A requirement for a 6 metre, or even a 5 metre, setback is not contained in any planning policy in the Bass Coast Planning Scheme now. There is no strategic justification for it.

54 Similarly, the Phillip Island and San Remo Design Framework, which has no statutory status, only seeks to maintain existing streetscape character by positioning buildings which reflect existing buildings.

55 In this particular streetscape context there are virtually no buildings along the eastern side of this section of Thompson Street because the two largest sites are caravan parks. The property to the north contains an old dairy building and it has no setback. It is just about the only building which could be referenced in this area. Some objectors say it is atypical of the setbacks and whilst they are correct it appears to be the oldest building in this streetscape. Whilst there are buildings with a 5 metre set back on the western side of Thompson Street, there are also exceptions. From our reading of the Design Framework there is little to say what the setbacks should be. This may be acceptable if we were dealing with an isolated infill development application. However, on a site with a frontage of 97 metres to Thompson Avenue, set amongst a collection of sites that could be redeveloped in the near future, there really is a lack of specific detail on building setbacks.

56 Various objectors raised strong objection to the apparent lack of car parking for the proposed supermarket and shops. Some objectors referred to a study undertaken for the Shire in the preparation of a precinct parking plan which was later abandoned by the Council. That parking plan recommended a car parking rate of 6 car parking spaces per 100 square metres of floor area. There was also reference to a previous parking provision in the former Phillip Island Planning Scheme.

57 Mr Pitt argued that car parking for retail shops within the Cowes Activity Centre is predominantly provided on a centre wide basis. He referred to a previous decision of the Tribunal in C and K Investments Pty Ltd v Glen Eira City and ors P1583/2005 and also to an extract from a Supreme Court decision by Mandie J which supported a global or centre based approach to the provision of parking in larger activity centres.[4]

58 Mr Pitt also argued that condition 4(d) of the Notice of Decision, requiring a cash contribution of $36,000, was inappropriate and was invalid having regard to the operation of section 62(6) of the Planning and Environment Act. He considered that the condition could be reworded if need be. We agree with his argument and if the application was to be approved we would have addressed this matter accordingly.

59 Mr Pitt relied on the evidence of Mr Andrew O'Brien, Traffic Engineer, whose summary of evidence was:

•

The provision for 203 parking spaces for the supermarket and retail component of the development will meet all but the peak parking demand of this component of the development.

•

The parking demand for the site may increase during the summer months due to an increase in population.

•

The likely overflow parking demand at peak times can be accommodated in either the on-street parking available in the vicinity of the site or in the proposed public off-street car park accessible from Church Street.

60 We accept the evidence of Mr O'Brien that the car parking supply for the supermarket and retail outlets will generally be met on site for most times of the year. It was agreed that probably the only times it would not meet those demands were at the peak trading period in the weeks following the Christmas holidays and possibly when there are particular tourist related events on Phillip Island. We consider that Mr O'Brien's evidence is based on well researched parking habits of shoppers in both metropolitan and non metropolitan/tourist areas.

61 If there are problems in major peak times these can be taken up in the streets surrounding the site or on Council land nearby. There is a relatively large car park to the rear of the Council offices/heritage centre which is unlikely to be operating at the same time as peak supermarket trading times.

62 However we would like to remark on the comments by Mr Pitt and, in particular, the comments of Justice Mandy concerning a centre wide parking approach. Justice Mandy referred to the centre wide approach to activity centres and he claimed that instead of applying a site by site approach the land use mix in a centre should arise from a combination of strategic planning and economic forces at work in the centre. We do not consider there has been much strategic planning for this mixed use area of Cowes and our comments above should have made that clear. Whilst the Council has identified some common parking areas for the activity centre in Clause 22.04, the areas nominated on the relevant map are remote from the subject site and abut the central core in the northern section of the Cowes activity centre.

63 In this case the Applicants are proposing the largest retail outlet in Cowes with related speciality shops in a midblock location which is separated from the primary retailing activity centre of Cowes. It is much harder to coordinate or apply a "centre wide" or global based approach to the provision of parking when there are various ad hoc retailing proposals in a relatively small township like Cowes.

64 We do not consider it appropriate to reject this application on the basis of the quantum of parking provision. However, the placement of the supermarket car park, including its single entrance, is a pointer to an uncoordinated, ad hoc planning approach to this township.

65 A number of objectors raised concerns about the proposed road treatment and entry point to the car park for the supermarket and shops. This involves reconfiguring the lanes and painting chevrons and other line markings to create a right turn entrance into this site for vehicles travelling north. This variation to the road configuration also provides a right turn lane into Hollydeen Court which is opposite the site.

66 We were told that VicRoads had supported this road treatment, although VicRoads were not a party to the proceedings and made no submissions to us. We were also advised that VicRoads required an independent road safety audit. The plans which VicRoads support were forwarded to the Responsible Authority in October 2005 but objectors were unaware of these requirements and it wasn't until they were incorporated into the plans which formed part of the substituted plans that various objectors were alerted to this change in road configuration.

67 Some of objectors claimed the road treatment would adversely impact on entry and exit arrangements to their own properties opposite. Others claimed it would have a flow-on effect to the Cypress trees. Some claimed it may reduce bicycle lane widths and that there would be difficulties for vehicles such as large trucks and buses passing turning trucks when they attempted to enter the car park.

68 Mr O'Brien advised that the swept path analysis demonstrates that large trucks can ingress and egress the site in normal turning movements. He also advised that the recommended Thompson Avenue cross section will comprise 2.7 metre and 3 metre wide lanes, and there is no need to have lanes greater than 3m.He claimed that the proposed cross section is not substandard. He believed that the revised cross section can be achieved by shifting lanes 0.85m closer to the trees. He was also of the view that vehicles can turn across the turning lane to enter businesses opposite and that this access will act as normal intersection.

69 Mr Frank advised there was a need for a 3.6m footpath clearance and a 5.6m road clearance, but that not all trees have such clearance now. He advised that it was the Council's responsibility to maintain the required clearance. He recommended investigation by an arborist about the form of crossover. He also recommended supervision during road works and suggested there was merit in having kerb barriers for trees.

70 We consider that the right turn lane treatment is technically acceptable. However, we have some doubt about the ability of a great number of trucks and high vehicles to be accommodated in the Thompson Avenue road reserve itself due to the presence of the overhanging Golden Cypress trees. We also have some reservation about the entry arrangement because we are concerned that large/high vehicles entering, or more particularly exiting, the site will damage branches of the trees outside the site.

71 Most parties acknowledged that the Golden Cypress trees are probably an inappropriate species for a high trafficked commercial road. Nevertheless they are highly valued. Both Mr Tyblewich and Ms Heggen emphasised that the Golden Cypress trees are the single unifying feature of the street. We are concerned that these important trees will be put under added pressure due to this relatively tight entrance/egress arrangement. We are not aware of whether VicRoads appreciated the access difficulties related to these trees. It appears to us that VicRoads has made a decision purely in terms of traffic management, rather than the visual amenity of the road. These issues could not be canvassed because VicRoads was not a party to the proceeding.

72 We are also concerned that the new access arrangement to the site will create a de-facto intersection in a mid block location along this important avenue. The new arrangement involves multiple turning movements and relatively convoluted vehicle movements.

73 Various objectors raised concern about the likelihood that large trucks or buses may damage trees, particularly if the vehicles were forced to the edge of the road pavement. We were told that the Council's arborist requires a 5.6 metre high clearance for such vehicles. In evidence Mr Frank was of the view that some branches were overextended and various pruning could be undertaken to up to 20% of the threshold of the affected tree(s). He advised that trees will require various protection measures during construction, including tree protection zones, fencing and the incorporation of permeable paving in the vicinity of the trees.

74 With regard to the potential impact from the apartments Mr Frank claimed the proposal will affect 3 trees over balconies but this can be addressed by minor pruning. We are satisfied with that evidence. Any concerns could have been addressed by conditions on a permit.

75 We accept that the trees can be protected through careful pruning and contemporary construction practices in around the roots. However, we doubt that over time the trees would escape damage from large vehicles turning out of the site. They would certainly be at greater risk of damage.

76 Mr Schinkel on behalf of the Friends of the Koalas Incorporated, expressed concern about the methods of calculating net gain when dealing with native vegetation removal on the site.

77 Mr Pitt advised that since the date of the Council's decision there has been an amendment to the State Planning provisions and no permit is required to remove native vegetation where it involves the construction of any building, including utility services or vehicle accessways which are ancillary to the building and which are within 10 metres of that building.

78 The changes to the scheme also require greater input from the Department of Sustainability and Environment. We are satisfied, having regard to this urban zone and the location that the Applicant has met the thrust of the Net Gain policy. We consider that the amount of vegetation to be removed is a minimum and that any offsets could be achieved on land nearby through a suitably worded condition. This matter could have been dealt with as a secondary consent with the Department of Sustainability and Environment having the application referred to it.

79 Various objectors raised concerns about the residential component of the development. Their submissions included claims about inadequate setbacks, inadequate open space facilities, the lack of access for the disabled and conflict between residential and commercial uses.

80 We consider the proposed built form, including the setbacks as shown in the revised plan, is an acceptable treatment for a Mixed Use zone. We acknowledge this would not be a conventional residential development for Cowes but that is not to say that it is an inappropriate form of residential development. This is a mixed use area in terms of zoning and land use functions where persons are more likely to accept different standards of amenity simply because of the opportunity to be close to a busy activity centre.

81 We are also satisfied that the dwellings are adequately incorporated into the overall design of the mixed use development. If anything, the residential component is the most conforming part of the mixed use component of the development. It is consistent with both the local planning policy direction and the purposes of the Mixed Use zone.

82 We also consider there is no necessity to have ground level open space or private secluded open space given the type of residential development and the likelihood it will be marketed to tourists. We doubt that people will come to this particular development with a mind for a quiet retiring holiday.

83 The criticisms about the lack of rear doors, air circulation, toilet facilities, amenities and ground level access for the disabled are issues addressed under the Building Act. They are not necessarily indicators of a deficient development. Accordingly, there is no need for conditions to address these matters. We consider that some of the modifications required by the Council, such as relocation of the staff amenities and disabled access to the residential units, focus on minor issues rather than the bigger picture.

84 We note that the proposed loading zone and truck manoeuvring space to the loading zone is located to the rear, close to a Residential 1 zone interface. At present that area is occupied by a caravan park and probably there is no great amenity impact provided there is a 4 metre high acoustic barrier.

85 Mr Pitt argued that the State Environment Protection Policy - N1 still applies to the site irrespective of the requirements in the condition. Whilst the Council sought to extend the length of the acoustic fence, further south into the site, no other party raised issue with this matter and it was not a determinative issue. Nevertheless, we question whether adequate attention has been given to the location of a loading bay immediately abutting a residential interface, particularly if that land is likely to be redeveloped for residential purposes in the future.

86 Condition 1(n) required notation showing that trees nos. 60-76 be retained. These trees are on the adjoining "Future Development Site" which is annotated as being subject to a separate planning application.

87 We agree with Mr Pitt that reference to this site, whether by permit condition or on the plans, should be omitted. However, we also remark that the manner in which some information has been shown on this site only highlights some of our reservations about the way ad-hoc planning application and decisions are being made along Thompson Avenue in Cowes.

88 During the hearing questions were raised about future parking and access issues for the adjoining site and a number of witnesses suggested that access and car parking areas could be shared with this site. Unfortunately there is no indication one way or another that the access or parking will be co-ordinated. If a separate development is proposed which does not utilize the car park and access there may be pressure on the Council and VicRoads to provide additional access to that particular site from Thompson Avenue.

89 We consider that the proposal lacks the strategic support that is necessary for a large retail/anchor-style development outside the primary business zone of Cowes. To place such a relatively large retail focus outside the business zone could have a number of undesirable flow-on effects in Thompson Avenue. As Mr Matthews succinctly put it, "We have got to get this right". If not, there could be a poor planning legacy.

90 For the above mentioned reasons the responsible authority's decision is set aside. No permit shall issue for the supermarket, retail and residential development.

[1] Application under section 80 of the Planning and Environment Act 1987

[2] Application under section 82 of the Planning and Environment Act 1987

[3] Pursuant to section 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998

[4] Sansmark Pty Ltd and Ors v City of Boroondara and Ors [1998] 22AATR 103.