The use may operate 24 hours per day 7 days per week except that deliveries of goods, including petrol and collection of waste and rubbish shall only occur between the hours of 7.00am and 8.00pm (inclusive) unless with the prior written consent of the responsible authority.

1 This is an application for review by Woolworths Limited of two conditions, relating to hours of operation (5) and advertising signage (15(a)) contained in Permit 05/0443 issued by the Responsible Authority on 7 December 2005. The permit allows the use and development of land at 74-76 Geelong Road Torquay for a service station, the display of advertising signs and creation of access to a road in a Road Zone Category 1, in accordance with endorsed plans.

2 The land has a total area of 2178m². The site was previously used as a service station, although the site has been vacant for the past 13 years. Construction of the service station under the current permit has already commenced.

3 As well as the current permit 05/0443 there also exists another permit 01/0241 which was issued on 21 October 2002 and expires on 21 October 2006. This permit also allows for a service station on the subject land but allows for a larger and more intensive development than the development proposed under permit 05/0443. Of relevance to the current application for review the 2002 permit allows for 24 hour trading and an advertising sign with an overall height of 6m.

4 The land is located on the corner of Geelong Road and Bristol Road and is generally surrounded by residential properties to the north and east, opposite the site in Bristol Road and across the divided dual carriageway of Geelong Road otherwise known as the Surf Coast Highway.

5 The land is zoned Special Use Zone Schedule 5 (Tourism Development Precincts) and is covered by Design and Development Overlay Schedule 7 (Surf Coast Boulevard) and adjacent to a road in a Road Zone Category 1 under the Surf Coast Planning Scheme.

6 Under Schedule 5 the land is located within Precinct T2 - Surf City Precinct, Surf Coast Highway, Torquay; a service station is a section 2 use under the table to the schedule and the proposal complies with the specified conditions.

7 Clause 4 indicates that advertising signs under Schedule 5 are in Category 3 at clause 52.05. Clause 52.05-2 sets out a number of decision guidelines in relation to advertising signs. In the table at clause 52.05-8 signage in Category 3 relates to High Amenity areas. A permit is required for a business identification sign, internally illuminated sign and a promotion sign. The advertisement area of a promotion sign must not exceed 2m². Each of the signs referred to above are defined within the planning scheme at clause 73 Outdoor Advertising Terms.

8 Under the DDO7 the land is located within Precinct 4 - Transitional. The vision for this precinct is:

This precinct provides a transition zone between residential uses and the Surf City Precinct. The precinct itself comprises a mix of uses including residential, health and well being uses, tourist accommodation, leisure and recreational establishments at a medium level density of development. The diverse Surf Coast Style building design is complemented with high quality landscaping, integrated with the abutting highway landscape theme.

9 Clause 3 of the DDO7 sets out a number of performance criteria for advertising signs.

Before the display of any advertising signs, plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a)

The price sign reduced in size so that the price information (promotional) component of the sign does not exceed a total of 2 square metres. The 'Safeway' and 'Caltex' elements of the sign are to remain at the same size and the height of the sign should be reduced commensurate with the changes, other than the bottom of the sign raised off the ground so as to be above surrounding landscaping;

11 A number of signs are proposed on the building on the site. There is no issue with the majority of the signs proposed it is only the freestanding sign at the front of the site that is in issue. The permit applicant characterises this sign as the sole business identification sign for the site. Whereas the Responsible Authority is of the view the sign as proposed is not only a business identification sign but also a promotional sign hence the condition requiring compliance with the planning scheme.

12 The sign is to have a curved top said to be in compliance with the Surf Coast design theme and to be an overall height of between 4.75m and 5.25m, a width of 2.005m commencing 0.7m above ground level and to have a single sided area of 8.6m.The sign is also to incorporate a canvas sail cloth element beside the price sign.

13 The sign is to contain a Caltex logo and a Safeway logo, the price for unleaded petrol, the price for LPG, the slogan 'Save 4c Per Litre' and the words 'with your Safeway fuel discount docket'.

14 The following definitions contained within the planning scheme relating to particular signage is of relevance:

A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street, number of the business premises, the nature of the business, a business logo or other business identification information.

A sign illuminated by internal lighting or which contains lights or illuminated tubes arranged as an advertisement.

A sign of less than 18 square metres that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold of for hire on the land or in the building on which the sign is sited.

15 The sign is to contain what could be described as the standard information usual for a Safeway Petrol sign. It contains business logos in the form of 'Caltex' and 'Safeway', it identifies petrol brands 'unleaded' and 'LPG', it contains petrol prices and provides information regarding a discount. It is not relevant that the sign is significantly different to and significantly smaller than a standard Safeway Petrol sign which have a height of either 6m or 8.45m or that it has a curved top and sails attached.

16 The part of the sign containing the two logos clearly falls within the definition of a business identification sign.

17 The part of the sign containing the petrol brands, petrol prices and discount information clearly falls within the definition of a promotion sign. The sign promotes goods obtained from the site, that these goods form the core business of the petrol station and that it is unheard of that a petrol station not provide price information does not change the fact that this part of the signage is promotional. It indicates the type of goods provided on the site in the form of petrol and the price of such goods. It may be that the sign does not promote other goods that can be obtained on the site, this is a matter for the operator but this does not result in the sign being anything but a promotional sign.

18 Price information is recognised as of importance to the business of a petrol station. It changes from time to time and showing the price changes is part of the business of encouraging consumers to purchase from that particular service station. Showing the ever changing prices of petrol whilst part of the business of a service station is still a form of promotion to encourage customers to that particular service station. It also indicates that a discount can be obtained for the goods a further promotion to encourage a particular category of consumers to attend the site.

19 The nature of the sign as one structure whilst showing logos, petrol prices and discount information could be said to be an integral part of Safeway Petrol station signage in that it is used on all such petrol sites and consumers can identify such signage that however does not change the nature of the signage as defined under the planning scheme. Merely because part of the sign description falls within one defined category of signage does not mean it is excluded from another defined category.

20 The sign as proposed does not fall within the requirements of the Surf Coast Planning Scheme. It may be that it complies with the performance criteria in DDO7 or that it meets the decision guidelines for advertising in the Special Use 5 zone, although promotion signs are strongly discouraged, but these are general criteria to be considered when the specific criteria of the planning scheme is met and in this instance that specific criteria is not met.

21 Whilst the proposed sign may have a curved top, utilises a light green rather than the blue Caltex logo, incorporates a sail element and is lower than the usual Safeway Petrol signage it does not meet the specific requirements under clause 52.05-8 that the advertisement area of the part of the sign that falls within the defined description of a promotion sign must not exceed 2m². As it does not comply with this requirement it cannot be said to be appropriate for the site.

22 It may be that the required reduction in the size of the sign will result, as indicated by Mr Poulton, in a shorter distance for motorist to be able to read the information on the sign. He considered that a motorist travelling at 60km per hour under normal road conditions has approximately 100m to observe signage and decelerate to an acceptable site entry speed. Reading a sign with the petrol prices being approximately 245mm in height the motorist would be able to do so from a distance of 122.5m and would have approximately 7.3 seconds to decide to turn into the service station.

23 Reducing the size of the sign marginally reduces the distance and time in which to take such action. There are a number of decision making factors that a driver undertakes when deciding whether to turn into a particular service station, not only is it the petrol price itself. I am unable to conclude the reduction in the size of the petrol prices will be a limiting factor. It may be that there is a reduction of a second, however it is still expected that the information on the sign will be visible in excess of the required distance to decelerate in order to turn into the service station.

24 Condition 15(a) is considered appropriate and should remain.

The use may operate between 6.00am to 12.00 midnight seven days per week except that deliveries of goods, including petrol and collection of waste and rubbish shall only occur between the hours of 7.00am and 8.00pm (inclusive) unless with the prior written consent of the responsible authority.

26 The applicant seeks this condition to be amended to allow for 24 hour operation and delivery times to be in accordance with the required Environment Protection Authority (EPA) guidelines that is to say prior to 10pm and not before 6am. It is the applicant's view that there is no amenity reason to restrict the retail trading hours on the site, or to restrict delivery times beyond those in the EPA guidelines.

27 The Responsible Authority provided a number of examples of permits[1] for service stations with limited trading hours generally to midnight.

28 Clause 52.12 specifically relating to service stations in the planning scheme seeks to ensure that the amenity of the locality is not adversely affected by activity on the site and emissions from the premises. The Special Use 5 zone also seeks to ensure that residential amenity is protected from off-site impacts such as noise. Based on the figures provided by Mr Hunt it is expected the service station will generate 65 vehicles in the off peak period between 10.00pm and 6.00am.

29 The service station is to be located 1.2m from a dwelling to the north and 4m from a dwelling to the east. The endorsed plans indicate a 2.6m high acoustic fence is to be constructed along both these boundaries. On the site it is proposed to have three petrol bowsers and two LPG bowsers operating and a kiosk/pay point building with a total area of 198m² offering a range of convenience goods. This building is to be adjacent to the eastern boundary. 10 on-site car spaces are proposed with an additional space for patrons utilising the air and water facilities close to the northern boundary.

30 To assess whether there is likely to be any adverse noise impacts to the nearby residential properties as a result of this service station operating 24 hours it is necessary to consider what the area is like at present. The site is located on the Surf Coast Highway. Mr Hunt's figures indicate that the highway carries high volumes of traffic, varying slightly depending on whether it is during the week or at the weekend and whether it is during the summer period where volumes are expected to be at their highest. Based on an assessment of the Rye Safeway Petrol outlet which Mr Hunt considered was not dissimilar in size and location to this proposal he was of the view that in the period between 10.00pm and 6.00am during the off peak period the site will generate between 43 and 65 vehicles and during the peak period between 184 and 256 vehicles.

31 Although the site is located on the corner of Bristol Road there is to be no access to or from this road. Access and egress is to be only via the Surf Coast Highway. As a result there is not expected to be an increased volume of traffic using Bristol Road due to the location of the service station.

32 The resident objectors expressed the view based on comments from another service station operator that it was not viable to operate the service station after 10pm, Torquay being a destination point in its own right not a place as Rye enroute to somewhere else. It was also their view that the reduced operating hours would result in reduced vandalism.

33 It is more a matter for the particular operator as to whether trading for 24 hours is commercially viable or not, presumably if it is not then the service station operator may choose not operate for the full 24 hours. This however does not address the question of limiting impacts on the amenity of the area. It may also be true that not operating on a 24 hour basis could limit vandalism however there was no evidence provided to me that suggested that a service station of the size proposed with a small kiosk/convenience shop attracted vandalism. It could be that being open on a 24 hour basis may in fact curb any potential vandalism which often occurs when properties are unattended. I am therefore not able to conclude that either commercial viability or vandalism have any bearing on whether this service station should operate on a 24 hour basis.

34 The two deciding factors as to whether this service station will have an adverse impact on the nearby residential area relate to noise and light spill.

35 I accept Mr Burton's evidence that the acoustic fence along the northern and eastern boundaries of the site will reduce any direct noise impacts to the two adjoining properties. With the assistance of the acoustic fences, the location of the bowsers and the car parking spaces on the site with vehicle movements to and from the Surf Coast Highway to the west the noise levels of vehicles after 10.00pm and before 6.00am are unlikely to have any adverse impact on residential properties further to the east and west of the site.

36 Although I have accepted Mr Burton's evidence with respect to the noise impact of vehicles on adjoining dwellings during the 10.00pm to 6.00am period I do not consider that this should also be extended to delivery vehicles. At present the condition requires goods, including petrol and collection of waste and rubbish to only occur between the hours of 7.00am and 8.00pm (inclusive) unless with the prior written consent of the responsible authority. I am of the view that this part of condition 5 should remain even if the hours of operation are extended to 24 hours. Whilst I accept that vehicle movements to and from the site, car doors banging and vehicles starting up in the period after 10.00pm may not result in sleep disturbance to nearby residences the EPA guidelines indicate deliveries should be confined to being inaudible in a habitable room and I am unable to accept that this will be able to be complied with.

37 Mr Poulton's evidence was that the proposed lighting for the service station could meet the Australian Lighting Standard AS 4282 - 1997. I accept his evidence that any potential light spill from the site would not have an impact on the adjoining residential properties, there being no illuminated signs or security lights on the rear or sides of the kiosk building that can be directly viewed from the windows of these dwellings. It was his view the maximum illuminance at the northern site boundary is 4 lux and at the eastern site boundary 2 lux this being well within the limit of 4 lux of vertical illuminance at the plane of the windows of both adjoining dwellings.

38 I am of the view that in relation to condition 5 the hours of operation of the service station can be extended to 24 hour operation. In this respect I do not consider there will be any impact from noise or light spill to the adjoining residential properties or to the residential properties located further to the east and west of the site. In relation to deliveries of goods I consider there is a potential for impact on the residential properties and that this should remain limited to between 7.00am and 8.00pm.

39 Whilst it is expected the site will generate between 43 to 65 vehicles between the hours of 10.00pm and 6.00am I expect that a larger percentage of these vehicles will occur between the hours of 10.00pm to midnight and not in the period from midnight to 6.00am and in this respect I rely upon the evidence of Mr Hunt. As a result there is unlikely to be any impact on the amenity of the adjoining residential properties.

40 Condition 5 is amended to allow for the operation of the use for 24 hours per day 7 days per week whilst deliveries and waste collection etc will remain confined to between the hours of 7.00am to 8.00pm.

[1] Main St Mornington Pty Ltd v Mornington SC [2002] VCAT 188; Woolworths Limited v Greater Geelong CC [2005] VCAT 1135; Woolworths Limited v Campaspe SC [2004] VCAT 641