Victorian Civil and Administrative Tribunal|2001-11-29

Woolworths Ltd v Mornington Peninsula SC [2001] VCAT 2284 (29 November 2001)

Section 77 Planning and Environment Act 1987 - refusal - Residential 1 zone Mornington Peninsula Planning Scheme - service station associated with supermarket - Clause 32.01 - site - Clause 52.12 - service station pad and tanker access - access through supermarket car park - Clause 22.12- Non residential use in Residential Zone - Clause 17.01 - Activity Centres Policy -accessibility - Clause 17.02 Business Policy - net community benefit - clause 63.05 - alterations to car park - Traffic management and safety - amenity impacts

1. The decision of the Responsible Authority dated 11 July 2000 is set aside.

2. The Responsible Authority is directed to issue a permit to use and develop (including all necessary variations to the requirements of clause 52.12 of the Planning Scheme) the land contained in certificate of title volume 6664 folio 668 and parts of the land contained in certificates of title volume 7200 folio 877 and volume 8831 folio 562 for the purposes of a service station and associated signage together with associated access over proposed right of way over parts of Eliza Square car park being parts of the land contained in certificates of title volume 8982 folio 118 volume 7257 folio 273 and volume 8831 folio 562 and consequential modification of such parts of the car park necessary for such access and further upgrading of the Eliza Square car park comprising modification of layout, car spaces and landscaping of parts of the car park contained in certificates of title volume 6758 folio 506 volume 9117 folio 640 volume 9138 folio 156 volume 7257 folio 273 volume 8831 folio 562 and volume 8982 folio 118 subject to the following conditions:

1. Before the use and development commences, 3 copies of amended plans drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority. When to the satisfaction of the Responsible Authority and approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with Flint Architects plans SK6C dated 3/7/01, SK7D dated 3/7/01, SK8A dated 17/5/01, Scott Carver Pty Ltd Revised Standard Drawings PP3/BB/AO1 3 dated 17/5/01, PP3/BB/AO2 4 dated 17/5/01 and PP3/BB/AO3 3 dated 17/5/01 and Revised Standard plans prepared by Dupree Partnership Pty Ltd Job No 235 Drawings Numbers 016, 020.2, 021, 034, 036, 046, 050 and 057, Grogan Richards plans 100085/T/06/P1 dated 17/5/01 and John Patrick Pty Ltd Landscape drawing No 00-029L-SD1a dated November 2000 but modified in accordance with the following conditions:

2. Before the commencement of the development hereby permitted a Car Park Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the Car Park Plan shall be endorsed and will then form part of this permit. The Car Park Plan must be generally in accordance with the endorsed plans and show:

(a) Dimensioned car park layout accurately indicating the supermarket

(b) Car parking space and access lane dimensions in compliance with the planning scheme;

(c) deletion of the 8 existing sub standard car spaces in front of the entrance to the supermarket in the north western corner;

(d) the provision of not less than 4 car spaces for the disabled in compliance with dimension requirements of the planning scheme and the Australian Standards to the satisfaction of the responsible authority.

(e) The provision of at least 3 of the 4 car spaces for the disabled in front of the entrance to the supermarket in the north western corner. Car spaces in this location to be parallel.

(f) The provision of any required additional car spaces for the disabled in a suitable location within the car park to the satisfaction of the responsible authority.

(g) the aisle in the north western corner to be 6.4 metres in width;

(h) the footway in front of the supermarket to be at least 1.8 metres in width;

(k) Adequate signs, pavement markings and traffic islands to direct and control the flow of traffic within the site, including the definition of permitted entry and exit crossovers;

(l) Concrete kerbs, or such other form of barrier as the responsible authority may approve, of sufficient height to prevent the passage of vehicles between landscape areas and areas provided for the parking or passage of vehicles;

(m) Concrete kerbs, or such other form of barrier as the responsible authority may approve, of sufficient height to prevent direct vehicle access to an adjoining road other than by a vehicle crossing.

The Car Park Plan must be drawn to scale with dimensions and three copies must be provided.

3. Before the commencement of the use hereby permitted areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the responsible authority be:

(b) Properly formed to such levels that they can be used in accordance with the plans;

(e) Line-marked to indicate each car space and all access lanes;

(f) measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.

4. Construction details for all parking areas, access lanes, and drainage must be approved in writing by the responsible authority prior to the start of such works.

5. All road works and/or internal traffic measures for the internal access ways and the permitted points of ingress and egress must be designed and constructed in accordance with the endorsed Car Park Plan to the satisfaction of the responsible authority, at the expense of the permit holder.

6. Before the commencement of the use hereby permitted all disused vehicle crossings shall be removed and the area reinstated to kerb and channel and landscaped to the satisfaction of the responsible authority.

7. After the commencement of the use hereby permitted access to the land must only be at the nominated crossings shown on the endorsed plan. The crossings and road pavement works are to be constructed to the satisfaction of the responsible authority, at the expense of the permit holder.

8. After the commencement of the use hereby permitted parking areas and lanes must be maintained in accordance with the endorsed Car Park Plan in good order and to the satisfaction of the responsible authority and kept for these purposes at all times.

9. Before the commencement of the development hereby permitted a Landscape Plan to the satisfaction of the responsible authority, but omitting the acoustic fence along Clarkestown Avenue, must be submitted to and approved by the responsible authority. When approved, the Landscape Plan shall be endorsed and will then form part of this permit. The Landscape Plan must be generally in accordance with the endorsed plans and show:

(a) The provision of trees, shrubs, creepers and ground cover plants to a width of at least three metres along the road reserve abutting the southern boundary of No. 75 Canadian Bay Road and the car park at the expense of the permit holder;

(b) All trees to be removed clearly indicated and species nominated;

(c) A schedule of all proposed trees, shrubs and ground cover, including the location and size at maturity of all plants, the botanical names of such plants and location of all areas to be covered by grass, lawn, paving or other surface materials specified;

(d) Native indigenous plants of local provenance that will supplement existing landscaping in the locality and contribute to the precinct character.

The Landscape Plan must be drawn to scale with dimensions and three copies must be provided.

11. Before the commencement of the use hereby permitted all landscaping works as shown on the endorsed Landscape Plan must be completed to the satisfaction of the responsible authority, and must thereafter be maintained in accordance with the endorsed plans to the satisfaction of the responsible authority.

12. Before the commencement of the development hereby permitted a Site Management [Construction] Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the Site Management [Construction] Plan shall be endorsed and will then form part of this permit. The Site Management [Construction] Plan must include:

(a) A proposed time line and sequence of construction;

(b) Location of worker site accommodation and facilities;

(e) Location and duration of works in and affecting Canadian Bay Road.

The Site Management [Construction] Plan must be drawn to scale with dimensions and three copies must be provided.

13. The development hereby permitted must be carried out in accordance with the Site Management [Construction] Plan to the satisfaction of the responsible authority.

14. Before the commencement of the development hereby permitted a Site Management [Complaints] Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the Site Management [Complaints] Plan shall be endorsed and will then form part of this permit. The Site Management [Complaints] Plan must include procedures for the handling and resolution of complaints received in relation to the use of the land hereby permitted and in particular with respect to the management of complaints with respect to odour, noise and the delivery and supplying of petrol and LP gas.

15. The use hereby permitted must be carried out in accordance with the Site Management [Complaints] Plan to the satisfaction of the responsible authority.

16. The development [including its layout, construction materials, size and type of proposed buildings, signage and works] shown on the endorsed plans and the matters contained therein must not be altered without the prior written consent of the Responsible Authority.

17 The location and details of signs shown on the endorsed plans must not be altered without the written consent of the responsible authority.

18. All areas of the development must be drained to the existing stormwater system via an underground drainage system or other approved method of stormwater drainage to the satisfaction of the responsible authority. This drainage system must include permanent siltation control measures which shall be used during construction.

19. The amenity of the area must not be detrimentally affected by the use or development through the: -

(a) Transport of petrol, LP gas, materials, goods and commodities to and from the land;

(b) Appearance of any building, works or materials;

(c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, fuel, waste water, waste products, grit, oil;

20. Petrol/gas delivery vehicles must not use Clarkestown Avenue or the east section of Davies Avenue.

21. Vehicles under the control of the operator of the use or the operator's staff must not be parked in Canadian Bay Road or Clarkestown Avenue.

22. The filling of underground tanks, the fuelling and service of vehicles, the - loading and unloading of goods and the standing of vehicles whilst awaiting service or collection shall be carried out entirely on the site.

23. Except with the prior written consent of the responsible authority the sale and supply of petrol and LP gas must take place only between the following hours:

Except with the prior written consent of the responsible authority Tanker deliveries of fuel must only occur between 7.00am and 10.00pm.

24. Signs must not contain any flashing light or restrict sight distance for motorists to pedestrians or vehicles in Canadian Bay Road.

25. All signs must be designed, constructed and maintained to the satisfaction of the responsible authority.

26. All signs must be located wholly within the boundaries of the land, and must not be located on any road reserve. This includes any sign attached to a vehicle where it is being used as an advertising sign.

27. Outdoor lighting must be baffled and located to prevent light causing detriment to the locality.

28. Disposal of rubbish and location of rubbish receptacles must be to the

29. The standard of operation for maintenance (not including noise) must be consistent with EPA information bulletin -`Waste control at motor vehicle repair and service premises - Best practice environmental management.

30. Petroleum storage tanks must be designed, installed and operated in accordance with the "Code of practice for the design installation and operation of underground petroleum storage systems (UPSS)" published by the Institute of Energy.

31. The use and development hereby permitted must comply with the relevant requirements of the Dangerous Goods Act and its subordinate legislation, particularly the Dangerous Goods (storage and handling) Regulations 1989.

32. Noise emitted from the premises must not exceed the requirements set out in the State Environment Protection Policy (Control of noise from commerce, industry and trade) No. N- 1.

33. No external sound amplification equipment or loudspeakers shall be used for the purpose of announcements, broadcasts, playing of music or similar purposes.

34. No external refrigeration or air-conditioning units shall be installed and the location of intake and exhaust grilles shall be located unless to the satisfaction of the responsible authority.

35. The use and development hereby permitted shall not be commenced until a right of way [easement ] generally in accordance with the endorsed plans over the land contained in Certificates of Title Vol 8831 Fol 562, Vol 8982 Fol 118, Vol 7257 Fol 273 for the benefit of the land contained in Certificate of Title Vol 6664 Fol 668 has been created and registered at the Office of Titles.

36. This permit will expire if one of the following applies,

A. Development is not started within two years of the date of this permit; or

B. Development is not completed within four years of the date this of this permit.

The responsible authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

37. The part of this permit relating to advertising signs shall lapse fifteen years after the date it is issued.

38. The approved use shall not be commenced before the completion of the development required under this permit. Any staging of the development shall be subject to the responsible authority's prior written consent.

________________________ ___________________

For the Applicant for Review: Mr R Osborn QC of Counsel and Mr I Murray, Mallesons Stephen Jaques, Solicitors

For the Responsible Authority: Mr A Hooper QC of Counsel instructed by Deacons Lawyers

For the Respondent/Objectors: Mr M Bartley, Phillips Fox, Solicitors on behalf of Mr & Mrs R Bray

1. This is an application for review of a decision of the Responsible Authority to refuse to grant a permit for a petrol filling station at 73-75 Canadian Bay Road, Mount Eliza.

2. The application for review was previously before the Tribunal in October and November 2000 and a determination was given dated 12 February 2001.

3. The matter was taken on review to the Supreme Court and the Applicant consented to judgment on the basis that there had been an error of law. The matter has now been remitted to the Tribunal. Any matters of law arising in this application have been dealt with by the presiding member who is a qualified legal practitioner.

The part of the subject land zoned Residential 1 is situated on the corner of Canadian Bay Road and Clarkestown Avenue. It is comprised of two lots, with the service station primarily to be located on the lot closest to the Safeway supermarket. This lot was formerly used as a medical centre. The lots have recently been cleared. ...

The subject land is located on the northern side of Canadian Bay Road adjoining the Eliza Square retail complex and the Safeway 185 space car park. Eliza Square includes a small arcade of specialty shops. There is one-way access to the car park from Canadian Bay Road and two-way access from Davies Avenue. Right turns are prohibited from this exit. The car park extends to Davies Avenue behind the subject land.

Canadian Bay Road is a collector road that passes the secondary college through the commercial centre, It commences at Port Phillip Bay and terminates at the Moorooduc Regional Park. It has a pavement width 12.8 metres. There are footpaths in front of the site. Other non-residential uses in the locality include medical centres, church and fire station. The traffic report accompanying the application claims that the road carries almost 500 vehicles in Friday peak hour during summer with 80% of the traffic entering and exiting the car park from Canadian Bay Road. Inspections indicate that the car park spaces close to Eliza Square entry are near capacity occupancy. However, there are generally surplus car parking spaces in the part of the car park closer to Davies Avenue.

5. The proposal is for a 3 bowser "Safeway + Plus Petrol" service station to be integrated with the Eliza Square complex and car park. What is described as the service station pad is to include the bowsers with a canopy over and a sales kiosk (25m²) to be located at the rear of the Safeway Supermarket and is to occupy 73 Canadian Bay Road as well as a 2.2m strip of 71 Canadian Bay Road on the northern boundary and a 1.0m strip of 75 Canadian Bay Road on the southern boundary. The service station is to have a 24.6m frontage to Canadian Bay Road with the Kiosk set back 31m from Canadian Bay Road. It is proposed that fuel tankers access the service station from Davies Avenue to the east of the site via the supermarket car park and exit onto Canadian Bay Road. As well cars are to access the service station from the supermarket car park and exit onto Canadian Bay Road. The hours of operation are to be Monday to Friday 7.00am to 12.00 midnight and Saturday/Sunday 7.00am to 9.00pm.

6. As well as the consequential alterations to the supermarket car park to allow the tankers access there are also proposed alterations to the configuration of the car park including landscaping as well as proposed advertising signs.

7. The land on which the service station is proposed to be located is within a Residential 1 zone (clause 32.01) pursuant to the Mornington Peninsula Planning Scheme. To the north of the land is part of the supermarket car park which is located within a Business 1 zone (clause 34.01) as is the Supermarket. The remainder of the car park which extends from the rear of the proposed site is bordered by Davies Avenue to the east and Clarkestown Avenue to the south is located within the Residential 1 zone as is the land at 75 Canadian Bay Road. Both areas of land are subject to a Vegetation Protection Overlay 1 - Township Vegetation (clause 43.02) and Design and Development Overlay - Township Design (clause 43.04).

8. Within the Residential 1 zone a permit is required for a service station provided the conditions opposite the use are met, these are:

* Adjoin, or have access to, a road in a Road zone.

* 3600 square metres if it adjoins on two boundaries a road in a Road zone.

9. Clause 52.12 relating to service stations under the particular provisions within the Mornington Planning Scheme also applies. In particular clause 52.12 applies if the site adjoins a residential zone which this site does. Under clause 52.12 land may only be used for a service station if the requirements set out in the clause under various headings are met. A permit may however "be granted to vary the requirements, if the responsible authority considers a better design solution will result".

10. Clause 52.12, as does the condition for a service station in a Residential 1 zone, sets out site area and dimensions:

The frontage must be at least 36 metres (30 metres if the site is on a corner) and a depth at least 30 metres.

11. In the present matter under the provisions of both clauses the site "must not exceed 3000 square metres" in the residential zone and must be at least 1,080 square metres under the particular provisions for service stations

12. It was accepted by all parties that the area on which the actual service station pad was to be located was approximately 850 square metres. This area would not quite meet the provisions of clause 52.12-1 although there is provision to vary this requirement. This area certainly does not exceed the maximum 3000 square metres referred to in clause 32.01-1.

13. Mr Osborn QC submitted that four views have been suggested as to what constitutes the site for the service station: the service station pad; the pad plus the area of the supermarket car park required for access; the pad plus the whole supermarket car park; the pad, the whole supermarket car park plus the supermarket.

14. Mr Bartley submitted that the pad plus the whole of the supermarket car park was the appropriate definition of the area of the site as the modifications required to the car park for tanker access, configuration of car spaces as well as the proposed landscaping and the intended provision of an acoustic fence were all elements consequential upon the use of the service station. Mr Bartley submitted that this resulted in the proposal being prohibited as it exceeded the maximum of 3000 square metres as required in clause 32.01-1. In this respect it was Mr Hansen's evidence that the total area including the service station pad and the whole supermarket car park is 6340.67 square metres.

15. Mr Hooper QC contended that the proposal as put by Mr Osborn QC that the concept of integrating a service station with an adjoining supermarket car park offering to customers of the supermarket the benefits of one destination convenience shopping resulted in a use when looking at the land covered by these uses that should appropriately be characterised as a "shopping facility/shopping centre".

16. Mr Hooper QC submitted, with reference to the six points referred to by Ashley J in A Cascone and Mario Vella v City of Whittlesea 11 AATR 175, that one is required to ask whether we are looking at the whole of the land, that is the land on which the service station is proposed, the car park and the relationship with the supermarket and shops and decide what is the real and substantial purpose of the land and the only conclusion that can be drawn in his view is that it is to be used as a combined shopping facility.

17. Mr Hooper QC contended that before any consideration of the proposal could be carried out, the proposed use of the land was required to be characterised, consideration was therefore required to be given as to whether the land is going to be used for one use or two uses. In his view the use of a shopping centre was an innominate use, whereas if it was concluded that the service station use was separate to the supermarket use then pursuant to clause 64 of the planning scheme both uses must comply with the planning scheme.

18. Mr Osborn QC submitted that the application as amended is premised on the area of the pad plus the area of car park required for access but would also fall within the first view of the service station pad only. The amended application was proposed as follows:

To use and develop (including all necessary variations to the requirements of clause 52.12 of the Planning Scheme) the land contained in certificate of title volume 6664 folio 668 and parts of the land contained in certificates of title volume 7200 folio 877 and volume 8831 folio 562 for the purposes of a service station and associated signage in accordance with Flint Architects plans SK6C dated 3/7/01, SK7D dated 3/7/01, SK8A dated 17/5/01 Scott Carver Pty Ltd Revised Standard Drawings PP3/BB/AO1 3 dated 17/5/01, PP3/BB/AO2 4 dated 17/5/01 and PP3/BB/AO3 3 dated 17/5/01 and Revised Standard plans prepared by Dupree Partnership Pty Ltd Job No 235 Drawings Numbers 016, 020.2, 021, 034, 036, 046, 050 and 057 together with associated access over proposed right of way over parts of Eliza Square car park being parts of the land contained in certificates of title volume 8982 folio 118 volume 7257 folio 273 and volume 8831 folio 562 and consequential modification of such parts of the car park necessary for such access in accordance with Grogan Richards plans 100085/T/06/P1 dated 17/5/01 and further upgrading of the Eliza Square car park comprising modification of layout, car spaces and landscaping of parts of the car park contained in certificates of title volume 6758 folio 506 volume 9117 folio 640 volume 9138 folio 156 volume 7257 folio 273 volume 8831 folio 562 and volume 8982 folio 118 in accordance with John Patrick Pty Ltd Landscape drawing No 00-029L-SD1a dated November 2000.

19. Mr Osborn QC submitted that the application seeks two things: permission for the service station and permission to alter the car park. The fact that the land referred to in the application includes both the site for the service station and the car park does not mean that the whole of the land is intended to be used for both, the purpose of service station and car park. The distinction in relation to the land to be used is maintained in the application, although the proposed alteration to the existing car park is consequential to and associated with the service station, it is not, he submitted a component of the service station. He further submitted that if the proposed upgrade to the car park is not dealt with at the same time as the service station application an inconsistency results between the existing layout of the car park and the access for the service station and the upgrade to the car park would not be permitted or tied to the current application.

20. Mr Osborn QC submitted that the service station and the associated access can be regarded as a single use because the service station would be unworkable without the access. As such it should be regarded as an integral part of the application in accordance with the view of Stephen J in Pioneer Concrete (Queensland) Pty Ltd v Brisbane City Council [1980] HCA 1; 44 LGRA 346 that "all land involved in the use must be the subject of the application", His Honour also said "it is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application."

21. Mr Milner, in support of the contention that the site included only the service station pad and access way, submitted the service station was not dependent on the car park or the supermarket for its use although it is to be located in close proximity to the supermarket to enable customers of the supermarket to use their discount for petrol purchases. In his view the site area of the service station pad and access ways fell within the requirements of clause 32.01-1 and clause 52.12-1 with a total area of 1867.6 square metres.

22. A number of earlier decisions by the Tribunal in relation to service stations located in the car park of an existing supermarket were referred to by the parties. In Flint Architects Pty Ltd v Mornington Peninsula Shire Council (1997/53990) the Tribunal concluded:

The petrol station relies on the large site in particular for the provision of connections to the local street system and accessways for circulating traffic, It is considered that for the purposes of this clause [4.16 in the then Mornington Peninsula Planning Scheme] the site is the entire site or at least that part of the site occupied by the "open air" car park and accessways.

23. As well in the decisions of Flint Architects Pty Ltd v Shire of Melton (1997/64613) and Flint Architects Pty Ltd v Warrnambool City Council (1997/90096) the Tribunal considered the site to be the whole of the land in the shopping centre.

24. Whilst the provision of a discount from the supermarket no doubt encourages shoppers to use +Plus Petrol service stations the use of the service station is not totally dependent on the supermarket nor is the supermarket so linked to the service station that it can be considered in this matter to be an integral part of the shopping facility. The proposal is to locate the service station in close proximity to the supermarket as well in this case to other similar uses to provide an element of convenience. The real and substantial purpose in this matter is the use of a service station.

25. A service station provides vehicles with petrol. To enable the proper use of the service station involves consideration of the entry and exit of vehicles an integral part of a service station. To ensure also that the service station can continue to provide vehicles with petrol the supplies must be replenished. In this respect consideration is also required as to access and egress by tankers. Access and the consideration of accessways is therefore an integral part of a service station.

26. Each application will have its own particular set of facts regarding access to and from the bowsers. In this particular matter access is proposed for motor vehicles from the adjoining supermarket car park. Vehicles can access this car park from either Canadian Bay Road or Davies Avenue as well as exit the car park onto either road. This is proposed to continue with vehicles who wish to attend the service station entering from the car park and exiting into Canadian Bay Road. Tanker access is more specifically defined in the proposal with access from Davies Avenue with a defined route through the supermarket car park to be created as a right of way over the car park land entering and exiting the service station at the same point as other vehicles.

27. Both clauses 32.01 and 52.12 refer to access. Under clause 32.01 the `site must either adjoin, or have access to a road in a Road zone". The site can also be larger "if it adjoins on two boundaries a road in a Road zone". The site adjoins and has access to a road in a Road zone being Canadian Bay Road.

28. Clause 52.12 states as its purpose "to ensure that amenity, site layout and design are considered when land is to be used for a service station, especially if the site adjoins a residential zone". Clause 52.12 specifically refers to access in relation to the number and size of crossovers in that "no more than two vehicle crossovers may service the site from a road".

29. Mr Bartley and to a certain extent Mr Hooper QC, sought to define the site in this matter in terms of the wider context in which the land is placed, thereby arguing that the use is either prohibited or a different and innominate use that should have different considerations. Mr Osborn QC however sought to confine the site to include the service station and the tanker access. It is a matter of fact in each application as to how the site is specifically defined in terms of area and dimensions, to enable the relevant provisions of the planning scheme applicable to the subject land, to be considered.

30. When both clause 32.01 and clause 52.12 are considered the site area specified in a residential zone must be no more than 3000 square metres. The area of the site is 850 square metres. It does not exceed the 3000 square metre limit and is therefore not prohibited in the residential zone. The area is however less than the area contemplated under clause 52.12 of 1080 square metres. If this area is considered in terms of what a service station can include as defined within the planning scheme, and taking into account the purpose of the clause to ensure the site layout and design, then it is clear why it is stated that the "site must be at least 1080 square metres". However when the circumstances of the present proposal are considered, what is proposed is not the all encompassing service station as defined within the planning scheme, but rather a small component, that is to sell motor vehicle fuel from bowsers. Service station as defined can also include selling of motor vehicle accessories or parts, selling of food, drinks and other convenience goods, hiring of trailers, servicing or washing of motor vehicles and installing of motor vehicle accessories or parts. It is therefore open under clause 52.12 when considering the site layout and design to consider that if this site at 850 square metres results in a better design solution then it is reasonable to consider the reduced site area and dimensions.

31. The Tribunal was advised that as the car park land is privately owned, but not by the applicant for permit, the owner of the car park was prepared to provided a right of way over portion of the car park to enable the access. As the tanker access in this matter is proposed to be through private property, albeit an existing car park, it is considered that the site for the purposes of clause 32.01 and 52.12 in this matter can reasonably include the accessways as well as the service station pad. It is accepted that the total area of the site being the service station pad and the access way is 1867.6 square metres.

32. Given that in this particular matter it is considered that the site area for the purposes of the application should also include the defined right of way through the supermarket car park, then the area of 1867.6 square metres is the site area in this matter and satisfies the provisions of both clause 32.01 and clause 52.12 in that the area does not exceed 3000 square metres and is at least 1080 square metres. The site area if merely confined to the land to be used for the service station would also comply with the site area requirements in both clauses 32.01 and 52.12.

33. The Responsible Authority refused the application for permit on 11 July 2000 on the following grounds:

1. The proposed development and use would be detrimental to the traffic management and safety in the locality.

2. The proposal is contrary to the purpose of the zone and the "non-residential uses in residential areas" policy.

3. The proposal would adversely affect the amenity and reasonable expectations of residents of Clarkestown Avenue.

4. The proposal will prejudice the orderly planning of the area.

34. The Tribunal has inspected the site and the surrounding area, has considered the submissions of the parties and the evidence of the expert witnesses and concludes that the grounds of refusal cannot be sustained. The Tribunal will deal separately with each of the issues raised by the Responsible Authority.

35. Whilst this service station is proposed to be located within a Residential 1 zone the planning scheme envisages non residential uses within the residential zone " in appropriate locations to allow ... a limited range of other non residential uses to serve local community needs". To this extent the planning scheme incorporates a policy to ensure that non residential uses protect the character and amenity of the residential area. At clause 22.12 of the planning scheme the objectives of the policy are:

* To ensure that non-residential uses are appropriately located having regard to:

- The intensity and hours of operation of the proposed activity.

- The siting and design of proposed buildings and works, including car parking areas and advertising signs and telecommunications facilities.

* To reduce the potential adverse impacts on the amenity of residential properties.

- In areas that are appropriate to the intensity and scale of the proposed use and that will have a minimal impact on the amenity of the local area and nearby residential properties. Major facilities serving catchments beyond the local level should be located in commercial areas or sited on roads which avoid the generation of additional through traffic on residential streets.

* The built form of development intended to accommodate non residential uses:

- Be of a scale and architectural style compatible with a residential area, including low key advertising signage.

- Include features to reduce the noise, loss of privacy and to enhance the appearance of the development, including landscaping, screening, acoustic fencing.

36. Given the history of the use of this area for non residential uses, the site having previously been used as a medical centre, the location of the service station more than 30m from the nearest residential property located in Clarkestown Avenue, the existing supermarket car park which already extends to Clarkestown Avenue and the separation of the service station from Clarkestown Avenue by 75 Canadian Bay Road, the site is considered to be more of a transitional site between the Business 1 zone and the Residential 1 zone and it is not considered that the service station is inappropriate in this location.

37. The distinct village atmosphere of the area will not be in any way compromised by the service station rather it is considered it will be a positive inclusion on the periphery of the commercial area and is supported by the Activity Centres Policy at clause 17.01 of the planning scheme, which is to provide a variety of land uses that are highly accessible to the community as well as encouraging multi purpose trip making . It will also provide a net community benefit supported by the Business Policy at clause 17.02 that recommends that commercial facilities should be located in existing activity centres providing accessibility for the community. In this respect it is noted that the only service station that currently exists in the vicinity of this shopping centre is that of the objectors the Brays located approximately 2km away on the Nepean Highway.

38. The location of a small service station within a car park associated with a supermarket has a number of benefits for the users of the supermarket facilitating one destination convenience shopping.

39. The Tribunal does not accept Mr Hansen's view that the service station will result in the loss of this land for residential use. It will enhance the function of the Mt Eliza activity centre. It is acknowledged that the service station will be used by a large number of shoppers attending the supermarket however it is not restricted to such persons and would no doubt be well used by other persons accessing other shops in and around the centre.

40. In relation to the supermarket car park it is accepted that it has existing use rights and any changes to the car park should be considered under clause 63.05 of the planning scheme. It is clear that changes to the car park regarding tanker access are necessary in relation to the use of the site as a service station. However the other changes to the car park as described by Mr Hunt being the widening of the aisles, realignment of the majority of car parking spaces to a length of 4.9 metres and width 2.6 metres and the introduction of planting through out the car park area is considered a separate application. The Tribunal agrees with Mr Osborn QC that such works should be carried out in conjunction with the service station development.

41. Eliza Square currently has a total capacity of 194 car spaces. Permit 217 in relation to the development of the supermarket provided for 53 car spaces although the scheme requirement at the time was for only 28. Permit 258 required 7 car spaces in conjunction with the development of first floor level offices. Currently under clause 52.06 of the planning scheme a shopping centre would require 8 car spaces per 100m² Based on the current leasable floor area of the shopping centre (2,559m²) the current provision rate is 7.6 car spaces per 100m². The consequential changes to the car park will result in the loss of 4 car spaces.

42. Mr Hunt advised that from surveys of the car park, peak demand was adequately accommodated with a utilisation of approximately 80% of the existing spaces. It is accepted that the parking demand for the proposal will only be two spaces. On the figures submitted by Mr Hunt the peak use would therefore be 152 car spaces with 181 spaces provided. It is considered that the loss of four spaces will be negligible.

43. Currently eight spaces including four spaces for the disabled are located adjacent to the entry to the Supermarket. These spaces are only 4.1 metres in length to a steel guard rail that protects a footway, 1.07 metres wide. It was suggested by Mr Fairlie that all spaces should conform to the minimum dimensional requirements under the Mornington Planning Scheme of 4.9 metres as well as the aisle width in this area being increased from the existing 6.0 metres to the required 6.4 metres and the spaces for the disabled to the required width of 3.2 metres. Mr Hunt provided an amended plan which showed an increase in the width of the footway to 1.4 metres, length of the car spaces to 4.2 metres and an increase to 6.4 metres of the aisle.

44. As the car park will adequately cater for peak demand it is considered that the area in front of the entrance to the supermarket could be improved by the deletion of the 8 existing sub standard car spaces and replacement with 3 or 4 parallel disabled car spaces in compliance with the requirements of the planning scheme and the Australian Standards. If only 3 disabled spaces can be provided another disabled space should be provided in a suitable location within the car park. It is also appropriate there be an increase in the width of the footway to at least 1.8m as well as an increase in the width of the aisle to at least 6.4 metres.

45. The proposed development will have an impact on current traffic movements into the supermarket car park as well as internally within the car park with vehicles already in the car park accessing the service station, as well as vehicles entering the car park to access the service station specifically.

46. Mr Hunt submitted that the service station would generate approximately 75 arrivals and 75 departures per hour during peak periods, with approximately 60% of these being shoppers at the supermarket as well, with the remaining 40% comprising new arrivals to the site. In this respect Mr Hunt submitted that the proposal would result in an increase of approximately 18% or 60 movements into and out of the supermarket car park and service station. Given that Canadian Bay Road has an average of 5000 vehicles per day he did not consider that the increase in traffic from this site would impact on Canadian Bay Road.

47. Mr Fairlie submitted that the location of a service station with direct access from a supermarket car park creates potential difficulties and hazards for traffic to the supermarket. In his view a service station should only have access and egress to and from a road. Whilst both clauses 32.01 and 52.12 refer to adjoining road and number of crossovers to a road there is nothing within either clause that indicates that access from a car park is prohibited. It is merely one of the factors that the Tribunal is required to take into account when considering each individual proposal.

48. It is not considered that the service station will result in a significant impact on vehicles entering the supermarket car park. There may at times be some queuing but given the service station is only providing petrol it is not considered that any queuing will result in unreasonable delays to vehicles entering or exiting the supermarket car park. The entry to the service station is not the only entry exit point for the car park.

49. Issues of safety were raised. Dr Briedahl referred to the number of more elderly residents in the near vicinity and expressed concern with regard to the safety of pedestrians near the proposed service station. Mr Wilson expressed concern regarding the possible conflict with the use of the car park by elderly drivers. The Tribunal understands the concerns of elderly persons however it is considered that clear sight lines will be established that will enable vehicles exiting the site into Canadian Bay Road to have a clear view of pedestrians in this area as well as the pedestrians having a clear view of the vehicles. This will ensure that the safety of pedestrians will not be compromised even if elderly.

50. Whilst it was clear even from the inspection by the Tribunal that shoppers preferred to park as close by as possible to the supermarket entrance, with spaces further away left vacant, it is not considered, as suggested by Mr Fairlie, that the changes to the car park will result in a reduction in customer safety and convenience merely because they may have to park a little further away than they have become accustomed to.

51. Mr Hunt indicated that tanker deliveries would be approximately three per week for fuel and three to four per week for LPG. The proposed right of way for the path of the tanker will enable the tanker to enter the site from the supermarket car park, be fully contained within the site whilst completing its delivery and exiting onto Canadian Bay Road, thus resulting in minimal conflict with other vehicles.

52. It is proposed that deliveries be permitted to occur between 7.00am and 9.00am and 7.00pm and 10.00pm. It was submitted by Mr Fairlie that deliveries were unlikely to be able to meet this type of schedule. The delivery times for tankers, it is considered, should be kept reasonably flexible whilst ensuring that tanker deliveries will not unreasonably impact on the amenity of the nearby residential area. Given the number of deliveries it is considered that any potential conflict with the use of the supermarket car park would be minimal. It is thought that a condition imposing tanker delivery times between 7.00am to 10.00pm will provide flexibility without unreasonable impact.

53. It is considered the upgrading of the car park will have an overall beneficial result not only improving circulation with the two way aisle adjacent to the service station but improving the car spaces and general amenity. Reference was made to the removal of one trolley bay as a result of the changes. Two existing trolley bays are to remain. It is however considered that an additional trolley bay should be provided within the car park.

54. It is not considered on the evidence presented to the Tribunal that the proposal will result in an adverse impact on the amenity of the area particularly in relation to the residents of Clarkestown Avenue. The service station is small scale in that it is only proposed to provide one component of what is defined as a service station within the planning scheme. This proposal is significantly confined, resulting in lesser potential for amenity impacts.

55. That the land on which the service station is to be located is zoned Residential 1, as well as part of the existing supermarket car park, results, in the Tribunal's view, in an anomalous situation. Clarkestown Avenue to the south separates the existing residential area from this area of land being part of the rear of the Eliza Square shops and car park. The site is considered to be transitional given the history of its previous commercial use. It is not to be located directly opposite the residential properties in Clarkestown Avenue but separated by a lot, which is currently vacant.

56. There is no proposed access to the service station either to or from Clarkestown Avenue. Therefore there is unlikely to be any impact from traffic in this residential street.

57. There is already an element of noise emissions from the existing car park. It is not considered that the vehicle traffic associated with the use of the service station will result in an increase in vehicle traffic noise impacting on the residential area. It is accepted that a large percentage of the vehicles using the service station are also customers of the supermarket, therefore there is unlikely to be a large increase in vehicles using the service station, compared to the current usage of the area.

58. The access to and egress from the service station are located well away from the residential properties in Clarkestown Avenue, tanker deliveries are proposed to be confined to reasonable hours and is not considered to result in any significant impact.

59. The proposed landscaping and upgrading of the car park will, it is considered, result in the residents of Clarkestown Avenue benefiting from the additional planting as a screen to the existing car park with a resultant improvement to the outlook from the residential properties. Given also the proposed small scale of the service station it is considered the built form is not imposing and will not impact on the residential properties.

60. The landscaping plan proposes planting along the northern side of Clarkestown Avenue and includes an acoustic fence to be located between the service station and the southern boundary of 75 Canadian Bay Road and to extend northwards along part of the eastern boundary of 75 Canadian Bay Road between the service station kiosk and the car park.

61. Under clause 52.12 if the site adjoins a residential zone:

* A landscape buffer strip at least 3 metres wide along the common boundary must be planted and maintained to the satisfaction of the responsible authority.

62. There is insufficient area to provide the 3 metre buffer of planting along the southern boundary of the site with 75 Canadian Bay Road, hence the recommendation that an acoustic fence be provided and the suggestion that planting occur in the reserve between the boundary of Clarkestown Avenue and 75 Canadian Bay Road. Many of the residences are set back on their individual lots and some have high fences as well as being separated by 75 Canadian Bay Road and Clarkestown Avenue.

63. Currently the residences are exposed to cars coming and going in the supermarket car park, although the area of the car park bordering Clarkestown Avenue does not appear to be heavily used, as well as some noise from traffic in Canadian Bay Road with approximately 5000 vehicles per day.

64. It is considered that the proposal for an acoustic fence is not necessary. Given that planting cannot occur on the common boundary it is considered that the proposed planting along the boundary of 75 Canadian Bay Road in the reserve would be appropriate adding to the amenity of the area and reducing the visual impact from the residences.

65. Landscaping to the whole of the car park, particularly the proposal to create denser planting along the edge of the car park along Clarkestown Avenue, will also add to the residents visual amenity.

66. The proposal does not comply in all respects with the provisions of clause 52.12 however variations can be made to the requirements. It is considered the present proposal is appropriate in this location and therefore the requirements under clause 52.12 that are not complied with should be varied.

67. In this respect it is not considered that the frontage of the site in this location being 24.6 metres is inappropriate, although it does not meet the requirement that the frontage be at least 36 metres. Given that the proposal is for only one component of a service station as defined, the smaller frontage is considered appropriate.

68. Whilst there is only one crossover from the site to Canadian Bay Road the proposed width was to be 8 metres to meet the requirements of tankers exiting the site instead of 7.7 metres. Mr Hunt's evidence was accepted that the width of the crossover could be reduced to 7.7 metres to comply with this provision with a roll over kerb to enable egress by tankers.

69. The provision for the landscape buffer strip at least 3 metres wide along the common boundary has been addressed in paragraph 58 above.

70. For the above reasons the Tribunal will set aside the decision of the Responsible Authority and direct that a permit issue subject to conditions.

________________________ __________________

Environment Act 1987

handling) Regulations 1989

Woolworths Ltd v Mornington Peninsula SC [2001] VCAT 2284

At a glance

Court

Decision date

Source

Judgment (169 paragraphs)

Woolworths Ltd v Mornington Peninsula SC [2001] VCAT 2284 (29 November 2001)

Parties

Legislation Cited (2)