1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

1. The decision of the Responsible Authority is set aside.
2. In planning permit application No. 16/0125, a permit is granted and directed to be issued for the land at 1160 Horseshoe Bend Road, Torquay, in accordance with the endorsed plans and on the conditions set out in the Appendix to this decision. The permit shall allow:
   • The use and development of a service station, construct and display business identification signage, variation of loading bay requirements (Clause 52.07) and variation to the requirements of Clause 52.12.

Ms Juliet Forsyth of Counsel, instructed by Allens Linklaters lawyers. Ms Forsyth called the following expert evidence:

• Mr Andrew Biasci (planning)
• Mr Henry Turnbull (traffic engineering)
• Mr Darren Tardio (acoustic)

The use and development of a service station, construct and display business identification signage and the variation of the loading bay requirements/the requirements of Clause 52.12.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit

Design and Development Overlay Schedule 23 (DDO23)

Clauses 34.01-1 & 34.01-4 - both 'use' and 'buildings and works' approval is needed for a service station on land zoned C1Z

Clause 43.04 - pursuant to the DPO8, a permit is required for 'buildings and works' and any such permit must be 'generally in accordance with' the relevant approved Development Plan and any conditions or requirements of the DPO Schedule

Clause 52.05-9 - requires planning permission for the proposed signage

Clause 52.07-9 - requires that planning permission be obtained to vary the 'loading bay' requirements that would otherwise apply

Clause 52.12 - is the special provision requiring 'land use' permission for 'service stations'

Clause 45.09 - the PO3 imposes 'numbers' and 'design' requirements

The subject land is located in northern Torquay. This northern region is gradually being developed for greenfields housing - this is the main area of Torquay earmarked for residential growth. The land on which the service station would be located is currently vacant and forms part of a much larger title area which has already been mostly built-out, so as to create the neighbourhood shopping centre (NAC) known as 'The Dunes Village'.

The site lies on the south-eastern corner of Fischer Street (which runs roughly north-south) and the newly-constructed Falcon Drive which extends further to the east. Fischer Street has the status of a local collector road and a carriageway width of 9.8 metres, whereas Falcon Drive is a lower order and narrower local street. This NAC notably features a Woolworths store but also includes a gym, café, bakery and various other specialty stores plus a considerable at-grade car park. The broader area mainly features very new housing and areas earmarked for housing but still vacant.

Currently the closest service stations are located more in the centre of Torquay some distance away, although a planning permit has been granted for another service station on a different site somewhat closer to central Torquay.

The Tribunal inspected the site and surrounds after the hearing.

1. The site at 1160 Horseshoe Bend Road in Torquay is part of an interesting location, being a nominated growth area of a coastal town. The broader locality is a neighbourhood activity centre (NAC) known as 'The Dunes Village' featuring a very new Woolworths store as the 'anchor store', plus a gym, bakery, cafe and associated at-grade car parking and speciality shops. Around the NAC are either very new dwellings or nearby areas set aside for housing but where the dwellings have not yet been built. This balance area outside of the NAC is zoned General Residential Zone Schedule 1. Otherwise, the main features of the relevant planning framework are already set out further above.
2. In the situation where The Dunes Village has otherwise recently been constructed on a very large square shaped title area, the north-west corner of same is still vacant and is the subject of this proceeding. In this regard, Woolworths Ltd has sought planning permission to develop this corner area (which I shall refer to as 'the subject land' or 'the review site') as follows:

Use and development of a service station, construct and display business identification signage, variation of loading bay requirements (clause 52.07) and variation to requirements (Clause 52.12).

1. To the south of the subject land (on the opposite side of an internal road) is the shopping centre building. To the east is the considerable at-grade shopping centre car parking. To the west is Fischer Street (a local collector road) and to the north is the recently constructed Falcon Drive.
2. The subject land is zoned Commercial 1 Zone Schedule 1 (CZ1) and also affected by the following overlay controls - a Development Plan Overlay Schedule 8 (DPO8), a Parking Overlay and a Design and Development Overlay Schedule 23 (DDO23). The Parking Overlay has played no significant role in this proceeding.
3. Council does not support the proposal and has issued a Notice of Refusal to Grant a Permit. As a starting point, Council considers that a planning permit cannot be granted per se, because the proposal fails to be 'generally in accordance with' the endorsed Development Plan pursuant to the DPO8. In the alternative, Council believes that the proposal would be a fatally poor planning outcome, notably in terms of being inconsistent with the relevant policy framework, being a poor neighbourhood character outcome, causing unreasonable pedestrian safety risks, in causing unreasonable amenity impacts and in failing to meet the requirements of the main specialist planning scheme provision dealing with service stations (Clause 52.12).
4. The hearing of this matter came before me on 13-14 June 2017. Given the role of the DPO8, there were just the two parties before me and I heard submissions from Mr Tobin for Council and from Ms Forsyth for Woolworths Ltd. She called the expert witnesses listed above. At the beginning of the hearing, by consent, I allowed the substitution of the revised application plans dated 24 April 2017. Although I do not need to repeat same here, there is a useful summary of the main changes made by these updated plans at [18] of the Council written submission.
5. I inspected the site and surrounds after the hearing.
6. There was a follow up process which I allowed for at the end of the hearing, to seek to resolve some uncertainty regarding the status of the proposed six metre tall pricing sign. In due course I received a detailed written submission on same from Mr Tobin, indicating that this was a 'live issue'. However I then received a letter dated 28 June 2017 from the instructing solicitors for Woolworths Ltd (Allens Linklaters). The gist of this letter is that Woolworths Ltd are content to restrict the advertising area on each side of the proposed tall sign to no more than 10 sqm on each side, plus that part of the sign featuring the words "save 4c" can be no more than 2sqm.
7. On this basis, Allens Linklaters advised that they had spoken to Mr Tobin and that there is now a consent position on this 'signage' issue as follows - there is no longer a dispute here provided that certain further changes are made to the draft permit condition 34 dealing with 'Advertising signs'. Attached to this Allens Linklaters letter is a track-changed version of condition 34, showing the relevant changes.
8. I can indicate that I am content both with this process and with the proposed resolution of the issue by way of the intended track-changed amendments to condition 34.
9. The key issues to be resolved in this proceeding are:
   • Whether or not the proposal is 'generally in accordance with' the endorsed Development Plan, pursuant to the DPO8.
   • The degree of strategic support for the proposal.
   • Whether the proposal would cause any unreasonable amenity impacts on the other nearby neighbours or other commercial uses.
   • Whether the proposal would be an acceptable traffic and parking outcome.
   • Whether the proposal is consistent with the requirements of Clause 52.12.
10. My overall findings are that this 'generally in accordance with' test has been met and that the most recent version of the proposal and updated draft permit conditions constitute an acceptable planning outcome. Hence I have made orders above that a permit issue for the proposal.
11. My reasons follow.

1. It is useful at this point to set out the proposal in more detail, as follows. I quote from [13 to 17] of the Council written submission.
   1. The permit applicant seeks approval for the use and development of a Caltex and Woolworth service station.
   2. The permit application proposed 24 hour operations. The applicant has subsequently notified that:
      • 14.1 Hours of operation will be limited to 6.00am to 11 pm 7 days per week;
      • 14.2 Fuel tanker deliveries will occur between:

1. 7am and 6pm Monday - Friday; 2. 7am and 1pm Saturday;

1. No deliveries on a Sunday. 3. Key attributers of the proposed service station are stated in the Permit Application materials to be:

15.1 a kiosk of approximately 120 sqm including a pay point and retail for a range of convenience goods.

15.3 three underground fuel tanks and one underground LPG tank;

15.4 10 car parking spaces[2] including one disabled space and one air and water space;

15.6 signage comprising of both business and identification signage and promotional material.

1. The Permit Application materials noted that the development would be constructed from rendered blockwork, a steel framework and CFC sheet fascias and finished in a standard Caltex and Woolworths external paint colour scheme.
2. The Permit Application materials also note other key features of the site including landscaping, turning circles and access paths to allow for fuel deliveries, site layout and access paths to ensure one-way flow of traffic and sufficient space for fuel tankers to be located within the site while completing deliveries.

IS THE PROPOSAL 'GENERALLY IN ACCORDANCE WITH' THE ENDORSED DEVELOPMENT PLAN?

1. Clause 43.04-1 provides that any permit granted for land with a relevant Development Plan Overlay area must be 'generally in accordance with' the relevant endorsed Development Plan. Clause 43.04-3 provides (amongst other things) that the development plan put forward for endorsement must describe "The proposed use and development of each part of the land".
2. In relation to the Schedule 8, its Clause 3.0 states:

The Development Plan must provide for and describe:

- The location of a neighbourhood shopping centre to accommodate up to 5,000 square metres of retail floor area.

1. Excluding any footnotes for convenience, there is a helpful summary of two key cases at [99-100] of the Council written submission as follows.

General principles were outlined in Canet v Brimbank CC where the Tribunal stated that:

1. General accordance is a question of fact to be judged on the facts and circumstances of each case; and
2. The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase 'generally in accordance with".

More recently Member Cook surmised in TAG-Doreen Pty Ltd v Whittlesea:

• general accordance is a question of fact to be determined in the circumstances of each case. The term itself contemplates some flexibility of application;
• for a proposed development to be generally in accordance with the relevant plan, it need not be identical to that described in the development or incorporated plan;
• The less detail and precision there is in the primary document/s, the more flexibility can be accorded to the term. The converse may also apply and this is a central issue in the proceeding;
• It is appropriate to consider the incorporated plan and development plan as a whole when making this assessment, including its language and intent. The assessment should not involve a 'spot the difference examination' rather, it is a question of whether the departures are 'sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the 'approved plan/s].

1. Returning to the facts here, the endorsed Development Plan with a Council stamp dated 3 May 2016 takes the form of a one page A3 sheet diagram. It is coloured up to show the intended form of future development of The Dunes Village NAC and nearby relevant residential areas. In relation to that area immediately to the north of the NAC, this A3 sheet shows (on the other side of Falcon Drive) areas set aside for 'Mix Use', 'Child Care' and 'Aged Care', plus the desired level of density of the considerable residential development spreading out to the east of the NAC.
2. I turn now to the square-shaped area where The Dunes Village NAC itself is shown on the endorsed Development Plan. In the southern area of the NAC, the western two-thirds or so of this area is shown on the A3 sheet as featuring a 'N.A.C. Retail Floor Area 5,000 sqm (max)', whereas the balance area to the east is shown as being for two 'Non retail' areas.
3. In the northern section of the NAC, the area in the very north-western corner is labelled 'Non retail' - this is the location where it is proposed to use and build the service station. The balance area across the north is shown as being for car parking and the word 'Cars' is included as well.
4. The endorsed Development Plan includes a form of 'legend' in the bottom left corner, including an explanation of what the various colours represent. Where the plan shows the whole of NAC square shaped area as coloured in light blue, the equivalent information in the legend shows this blue colour to represent "Retail - 5000 sqm Floorspace".
5. In summary, the key single feature of the A3 endorsed Development Plan for our purposes is that it shows that area in the north-west corner of the NAC (where it is now proposed to use and develop a service station) as being used for 'Non retail'.

1. In the Victorian Planning Provisions, Clause 72 sets out what is described as 'General Terms', with the first sentence under that heading reading "The following table lists general terms which may be used in this planning scheme". Clause 74 lists what is described as 'Land Use Terms', with the first sentence under that heading reading "The following table lists terms which may be used in this planning scheme in relation to the use of land". The 'nesting system' for relevant defined terms is set out at Clause 75, which includes diagrams.
2. The definition of 'Retail' from Clause 72 is "The sale of good or materials, in any quantity or manner, other than by wholesale".
3. 'Retail premises' is defined at Clause 74 to be:

1. sell goods by retail, or by retail and wholesale;
2. sell services; or

1. This clause also states that 'retail premises' includes:

Land used to sell motor vehicle fuel from bowsers, and lubricants. It may include the:

b) selling of food, drinks and other convenience goods;

e) installing of motor vehicle accessories or parts.

1. Where Clause 75 deals with the 'nesting' system, it is notable that the use of 'service station' does not fall within the 'nested' range of defined terms coming within 'retail premises'. This is consistent with the Clause 74 definition of 'Retail premises' which is set out two and three paragraphs above. Indeed, where Clause 75.17 nominates a list of defined uses which are overtly confirmed as being outside of the scope of the 'nesting' system, a 'Service station' is one such use.

1. By way of background, it is not disputed in itself that there was an earlier draft version of this Development Plan showing in this north-western corner the outline of a service station and the word 'fuel'. However when this was presented to the relevant Council meeting on 24 March 2015, the relevant Council officer report recommended various changes, some of which were actually taken up in the relevant Council resolution.
2. In relation to this north-west corner area, the Officer recommendation was to make a change "Recognising that the area identified as a service station could be used for non-retail commercial use if not used as a service station". However the key words in the actual alternative resolution passed by the Councillors were "Removing reference to a service station being present and allowing for another non-retail commercial use instead".

1. At [115] of the Council written submission there is the following helpful commentary on the potential use of extrinsic materials in this type of interpretation dispute, as previously set out in a number of cases on point including Vestey and Ors v Warrnambool CC (Red Dot) [2008] VCAT 963:

The principles regarding the use of extrinsic materials to interpret the planning scheme may be summarised as follows:

115.1 Extrinsic materials may only be used where there is some uncertainty or ambiguity regarding what is intended by the legislative instrument that cannot be answered from the instrument itself;

115.2 Extrinsic materials must not be used to create the ambiguity, only to solve it.

115.3 Information gleaned from the extrinsic materials must be objectively ascertained - that is the ambiguity must be resolved by considering what the materials indicate, rather than what the parties say was intended.

Key issue to be resolved and position of the parties

1. In the context set out above, the key issue here is whether this proposal for the use and development of a service station etc is 'generally in accordance with' this notation in the endorsed Development Plan that the north-western area of the NAC be used for 'Non-retail'.
2. In simple terms, Council argues that a proposed service station should be considered as a 'retail' use as defined in Clause 72, for the purposes of the endorsed Development Plan. Following this line of thinking, the proposal fails to be 'generally in accordance with' the notation in the A3 sheet that this north-western corner of the NAC be used for 'Non retail'. Council relies on the fact that the definition of 'Retail' refers to the sale of goods or materials "...other than by wholesale". On this basis, Council's case is that the sale of petrol to the public is not a type of 'wholesale' activity - rather the petrol is being sold direct to the public. Hence Council argues that it is reasonable to view the operation of a petrol station as being coming within the definition of 'Retail'.
3. In the alternative, Council argued that if it is appropriate to look at extrinsic materials, it counts against the proposal that the earlier version of the Development Plan expressly showed the north-western corner of the NAC as used for a service station, but where this was changed by the relevant Council resolution to the current 'Non retail'.
4. By contrast, the applicant's case at its highest is that the debate here is about what form of use is allowed in the north-western corner of the NAC. Following this approach, it is appropriate to utilise the definition of 'Retail premises' rather than the definition of 'Retail', because only the former has a 'use' flavour to it.
5. In the alternative, if extrinsic materials are to be referred to, the applicant highlighted the role of the Torquay/Jan Juc Retail Strategy October 2011, being a Reference Document. Section 2 of this document features the heading "Retailing in Torquay/Jan Juc and District", with the text underneath including text coloured blue. Other than the final paragraph, this blue text sets out those type of activities considered to be "retail activity". Other than as mentioned in the following sentence, there is no reference to a service station in this blue text. However very relevantly for our purposes, the first sentence of the final paragraph of this blue text (with my highlighting) reads "For the purposes of the analysis presented here, retailing excludes selling of motor vehicles, auto accessories and fuel".
6. In relation to the relevant Council resolution which I have quoted further above, the applicant argued that it is telling for our purposes here that the key Council resolution words are "...and allowing for another non-retail commercial use instead". In other words, the applicant urged the Tribunal to find that it is important and goes against Council here that this text uses the words 'another non-retail commercial use', rather than 'a non-retail commercial use'. The applicant's case here is that the choice of the word 'another' is effectively an admission by Council that a service station is a form of non-retail use.
7. Both written submissions spent some pages presenting various case law and submissions on this issue. This is not worth repeating here - suffice to say that I have taken same into account in my findings below.

1. Starting at a very general level, firstly, I note the High Court authority of Master Education Services Pty Ltd v Ketchell [2008] HCA 38 that:

Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context....

1. Secondly, I agree with the comment at [47] of the applicant's written submission that what we are exploring here is how this north-west corner of the NAC will be used ie it is a form of 'use-debate'. Following this line of thinking, I endorse the point made at this [47] that "whether the proposal would constitute the use of the land for non-retail" is what needs to be focused on. I also agree that whether or not the proposal meets the requirement that the north-western corner of the NAC be used for a non-retail use is a different issue to whether or not the average person might regard the operation of a service station as constituting retail or non-retail sales.
2. Thirdly, it seems appropriate that the Tribunal approach the interpretation of terms of 'retail' and 'non retail' with some regard to how those terms have been commonly applied over a relatively long period in the planning and property industry in Victoria. In other words, how a professional person in the Victorian property and planning industry might interpret the words 'retail' or 'non-retail' may differ to how the proverbial 'ordinary person on the street' would carry out this exercise.
3. The appropriateness of factoring in some 'relevant industry knowledge' is reinforced by the Victorian Court of Appeal decision of Urban Renewal Authority Victoria v Obeid [2013] VSCA 371 where it was stated at [29] that:

The question of construction is not to be approached by reference to the knowledge or understanding of an ordinary member of the public. Rather, the task is to ascertain the meaning conveyed by the words actually used. Technical language, such as "as Registered Proprietor", must be given its technical meaning, ascertained by reference to the relevant body of knowledge - in this case, the legislation (the TLA) which establishes the Register and defines the scope and limits of a registered interest in land. The Notice in the present case clearly identified the interest being acquired. The nature and extent of that interest could readily be established by reference to the Register and applicable legislation.

1. Firstly, where there is hot dispute here between the parties about how to interpret the words 'Non-retail', it makes sense and is appropriate that the Tribunal look to the relevant defined terms in the Victorian Planning Provisions to gain guidance on same. Although there is no definition of 'Non-retail', the terms 'Retail' and 'Retail premises' are certainly related and are defined as set out further above.
2. That it is preferable to be able to utilise the relevant defined term in the Planning Scheme is reinforced by the following relevant case law. In Reubens Hots Dogs Pty Ltd v City of Melbourne (1990) 5 AATR 263, there was a dispute regarding the range of allowable uses where the relevant permit preamble approved the use of 'shop'. In resolving this dispute, the Tribunal relied on the defined use of 'take away premises', which was seen as the defined use in the planning scheme that was on point and appropriate to utilise. The Tribunal at page 267 made the point that it is not the subjective intention of the Council and permit holder that needed to be ascertained, but rather precisely what the permit itself had authorised. It then stated that:

I do not think this principle is any less applicable in this case just because a person would need to look at the meaning of 'shop' within the definition clause of the Planning Scheme, in order to see "precisely what it is which has been authorised".

1. In all the circumstances, I am satisfied that these defined terms of 'Retail' and 'Retail premises' are closely enough related to 'Non retail' that my primary task here is to ascertain which of these two definitions is the correct one to apply and then carry out that exercise. I find unconvincing the suggestion that I need to utilise extrinsic materials to be able to properly make my 'generally in accordance with' finding. In other words, following the Vestey principles quoted above about the potential utilisation of extrinsic materials, I am unconvinced that there is sufficient uncertainty or ambiguity in this interpretation exercise so as to make it necessary that I refer to extrinsic materials.
2. As to whether the Tribunal should utilise the VPP definition of 'Retail' compared to 'Retail premises', I accept that the correct and appropriate defined term to apply here is 'Retail premises'. Because the definition of 'Retail premises' does not include a 'Service station' and with this situation being reinforced by the 'nesting' system in Clause 75, I am satisfied that:
   • The proposal here for a 'service station' use constitutes a 'Non retail' use that is 'generally in accordance' with the endorsed Development Plan dated 3 May 2016.
   • Accordingly the proposal is compliant with the DPO8 and the DPO8 does not pose any bar to the potential granting of planning merits approval of the proposal.
3. As alluded to above, this 'generally in accordance with' dispute is an arm-wrestle between the applicant and Council about whether or not the proposed form of use of the north-western corner of the NAC complies with the DPO8 or not. In other words, it is very much a 'use-flavoured' debate.
4. With this emphasis on 'use', I agree with the applicant's submission that 'Retail premises' is the appropriate defined term to utilise. The definition of 'Retail premises' opens with the words 'Land used to:..." - ie right from the start, this definition is all about 'use', so as to fit snugly with the dispute before me being very use-flavoured.
5. The suitability of applying the defined term of 'Retail premises' is further reinforced by Clause 74 dealing with 'Land Use Terms', with the opening sentence of this clause reading (with my emphasis) "The following table lists terms which may be used in this planning scheme in relation to the use of land". Putting it another way, I endorse the logic of the following text from [47] of the Woolworths written submission:

But clause 72 is the wrong clause. It does not tell you whether or not a use of land is for retail purposes. It does not refer to the way land is used, but rather how good are sold. Clause 74 tells you when, in planning terms, land will be considered to be used for retail purposes ie Clause 74 relates to the use of land.

1. Applying the defined term of 'Retail premises' to the dispute here, it is compelling that where this definition expressly lists a number of uses as coming within its scope, a 'Service station' is not mentioned. This is reinforced by the 'nesting' system in the VPPs:
   • Showing those uses which are 'nested' as falling within the scope of a 'Retail premises', with no mention of 'Service station'.
   • Listing a 'Service station' at Clause 75.17 as one of a number of uses which are overtly confirmed to be outside of the nesting system.
2. I note that Council sought to make much of the fact that the definition of 'Retail premises' in sub-clause (a) includes the word 'retail' where it reads - "sell goods by retail, or by retail and wholesale". However in the particular circumstances here, I see little turning on this, given that:
   • The definition of 'Retail premises' needs to be read as a whole, rather than by simply highlighting favourable individual aspects. Whilst acknowledging that (read in isolation) the use of the words "...or by retail and wholesale" have a very broad scope, one needs to then go on to read the list of uses listed in the balance of the definition as being examples of 'Retail premises' - this list does not include 'Service station'.
   • Guidance is also provided by the relevant Clause 75 'nesting' diagram which shows those uses which fall within the 'umbrella' use of 'Retail premises' - these 'nested' uses do not include 'Service station'.
   • Further guidance is provided by the fact that a 'Service station' is one of the uses which Clause 75.17 expressly nominates as falling outside of the 'nesting' system.
3. In summary, these various factors provide a convincing case that the proposed 'Service station' use is a form of 'Non retail' use for the purposes of the endorsed Development Plan, such that the proposal is consistent with the DPO8 that applies here.
4. Whilst being more in the nature of 'an addendum to my main finding above', the following factor reinforces my main finding. On the strength of Urban Renewal Authority Victoria v Obeid being authority that it is appropriate to apply terms with a particular technical or industry meaning in such a way as to acknowledge that more specialist meaning, I consider that in the property and planning industry in Victoria, the term 'retail' has a well known and commonly applied meaning, flowing from the fact that suburban shopping centres in Melbourne have historically frequently had a cap applied to their permissible 'retail floor space'. In this particular context, my view is that the term 'retail' is commonly associated with the core tenants which one typically expects to see in activity centres. Following this approach, it seems fair to say that across Melbourne, one does not walk around the various suburban activity centres and see service stations featuring as a core tenant.
5. In this regard, I see real merit in the following text from [44] of the expert planning report by Mr Biasci, being a very experienced expert planning witness with considerable involvement in the development of Melbourne suburban shopping centres[3]:

'Service station' is acknowledged as one of a number of land use terms that are not nested under (sic) Clause 74 of the Planning Scheme. Secondly, I do not regard 'service station' as a 'retail' use and certainly not one which might otherwise be categorised as 'retail premises' or 'shop' under the Planning Scheme. I am satisfied that 'service station' as a land use falls within a broad range of 'non-retail' uses that typically complement the mix of uses found in an activity centre. In this particular case, I would not expect the floor area of the 'service station' to be included within the maximum 5,000 sqm of retail floor area allowed for by the approved Development Plan in the NAC. I expect that the 'service station' to be simply characterised as a separate and distinct 'non-retail' land use.

1. The final key aspect to this 'generally in accordance with' dispute is as follows. If I was held to have erred in finding that I do not need to refer to extrinsic materials to resolve the 'generally in accordance with' issue, I can indicate that that I see the key extrinsic materials as favouring the applicant. I agree with the applicant that it is very favourable for their case that:
   • The definition of 'retail activity' at section 2 of the Torquay/Jan Juc Retail Strategy October 2011 (being a Reference Document) expressly excludes the sale of (amongst other items) 'fuel'[4]. That is, the express exclusion of 'fuel' in this definition strongly points to a 'service station' being a form of non-retail use.
   • The final part of the relevant Council resolution uses following text - "...and allowing for another non-retail commercial use instead". I agree with Ms Forsyth that the choice of the word 'another' rather than 'a' (on an objective reading[5]) is effectively a concession that a 'service station' is a form of non-retail use.
2. Where previous Divisions of the Tribunal have similarly considered whether or not a service station constitutes a 'retail' form of use, at [139] of the Council submission these previous decisions are described as inconsistent'[6] and this was not in itself disputed by the applicant at the hearing. On this basis, I do not see these previous decisions as playing any decisive role, but I note that the decision of Woolworths Ltd v Wodonga Rural CC [2006] VCAT 2034 (which is favourable here for the applicant) was decided by a Senior Member. In that decision SM Baird stated at [17] that "There is a strong basis to the case that a service station is not a retail use in terms set out by the Scheme because it is not nested with another use".

THE DEGREE OF STRATEGIC SUPPORT FOR THE PROPOSAL

1. Relying on what I consider to be the credible expert planning evidence of Mr Biasci, I accept that there is significant strategic support for the proposal. Similarly I find that the proposal is consistent with the applicable planning controls and relevant State and local planning policies.
2. It is significant that the primary zoning here is not a form of residential zoning but Commercial 1, where more intensive activity and more robust built form (with the right design) is anticipated. I consider a commercial use like a service station (located more at the edge of this NAC) to be consistent with the purposes of this zone.
3. The Torquay and Jan Juc Structure Plan (2007), as a Reference Document under the Planning Scheme, sets out certain objectives at its pages 7-8. Where those objectives include acknowledging that this location is a nominated population growth area and promoting opportunities for economic growth, I accept that the provision of a service station in this location is complimentary to same. Where the objectives seek the maintaining and enhancing of the "...distinct identity and coastal character of Torquay/Jan Juc", with one proviso, I accept that the substituted plans are consistent with same in having a greater use of timber cladding, a curved roof and an illustration of a wave. A noticeable effort has been made with the updated plans for the proposed kiosk to be more sympathetic to the coastal character of this location. The proviso is that there seems greater potential for the choice of colours to be more sympathetic to the coastal setting.
4. I am conscious that the DDO23 includes various relevant design objectives, 'requirements' and decision guidelines set out at Schedule 23. To avoid duplication, I refer to the discussion of same at pages 32-35 of the Council written submission. For two key reasons, I am satisfied that the proposal is consistent with these various features of DDO23.
5. I consider it reasonable to take the view that where the proposal in question is a service station rather than say a form of shops, some of the design objectives are less relevant and carry less weight. Notably, where such objectives include to "facilitate the development of a 'main street' type activity centre with shops fronting directly on to Merrijig Drive and Fischer Street...", to "...provide an active frontage to Fischer Street and Merrijig Drive", and to "...promote development that is designed to cater for retail at ground level and office spaces or other professional use types and dwellings on upper levels", I consider it appropriate to apply these objectives as applicable on a common sense basis, rather than as mandatory features which any form of proposed development must achieve.
6. I also endorse the point made by Mr Biasci that these objectives are more relevant and carry more weight where the endorsed Development Plan has nominated any one part of the NAC for 'retail' uses, and vice-versa for this north-western corner of the NAC where the mandated use is 'non retail'. In other words, 'the bar is set lower' where the endorsed Development Plan requires a 'non retail' use in this corner location, facing towards Fischer Street and Falcon Drive.
7. I make the same findings about the 'Requirements' set out at page 2 of Schedule 23 and the decision guidelines at pages 4-5 ie it is unrealistic to expect all of these various provisions to automatically apply to all potential forms of new development. Rather, they need to be applied more selectively and as-applicable, using a common sense approach, with some regard to whether the endorsed Development Plan has nominated the particular area of the NAC in question as a 'retail' or a 'non retail' use.
8. To the extent that these design objectives/requirements/decision guidelines are on a common sense basis appropriate to apply to a service centre proposal, I consider that the substituted plans have made a real and positive effort to respond to these design objectives.
9. For example, I accept that the updated design has a more 'coastal' character to it, that the design response involves a significant landscaping element, that the on-site car parking provision will not detract from the amenity of the area and that the proposed signage is generally appropriate for a service centre proposal. I acknowledge that at a glance the proposal does not meet a number of the 'Requirements' set out at page 2 of Schedule 23, but I accept that many of these Requirements have limited relevance to a service centre proposal (and hence carry minimal weight).
10. Similarly I find that some of the decision guidelines at pages 4-5 have little role for a service station proposal. Where others do carry weight here, I am satisfied that the updated proposal suitably responds to same eg the updated design having more of a 'coastal' feel, respectful signage (subject to the revised permit condition for the proposed new tall sign) and a good level of landscaping. I also agree with Mr Biasci that inherently a service station use leaves the land in question with a real degree of flexibility for other future uses - the degree of new built form is limited and much of the site stays open. Witness the substantial number of former service station sites across Victoria that have been converted into other uses.
11. Again to avoid duplication, I refer to the helpful discussion at pages 35-41 of the Council written submission of the relevant State and local policy framework. I am satisfied that the proposal is compatible with this framework. Whilst recognising that this framework recognises the highly valued coastal character of this location and the need for new development to respond to same, I am satisfied the substituted design 'tips its hat' to this coastal aspect and it needs to be said that it is a relatively common situation across Victoria for there to be a service station on the edge of an activity centre.
12. Having a service station lying within a nominated growth area has the inherent advantages of providing new residents with easy/convenient access to fuel and allowing for multi-purpose trips to The Dunes Village ie where a patron might both do their shopping and also refuel their vehicle. This is particularly the case where currently the nearest service station is some distance to the south, in the centre of Torquay. Being located more at the edge of a NAC rather than in a residential hinterland location, I consider this aspect of the proposal to be consistent with Council's 'activity centres' local policy at Clause 21.02-2. For many people filling up their car with petrol is a weekly activity and the proposed service station will provide the local residents with a convenient opportunity to do so.
13. Where Clause 21.08 deals with the 'Torquay-Jan Juc Strategy', the opening paragraphs on page 1 recognise the anticipated rapidly growing population in this location - having a local service station will offer convenience to these new residents (particularly if their most common vehicle commuting is to the north towards Geelong, rather than to the south). Where at page 5 under the heading 'Economic Development' there is reference to encouraging the establishment of The Dunes Village "providing a range of shopping and commercial services", it is very arguable that a service station can be seen as within this range of possible new services. Otherwise many of the provisions in Clause 21.08 are more of a high-level nature, rather than being specifically applicable and helpful here.

WOULD THE PROPOSAL CAUSE ANY UNREASONABLE AMENITY IMPACTS ON THE OTHER NEARBY NEIGHBOURS OR OTHER COMMERCIAL USES?

1. With the benefit of:
   • Mr Biasci's credible expert planning evidence on this issue; and
   • Mr Tardio's credible expert acoustic evidence in this regard

I accept that the proposal would not cause any unreasonable amenity impacts.

1. I expect that many other nearby commercial traders in The Dunes would regard a service station as a positive/complementary form of use that potentially brings in more customers to the centre. Bearing in mind my positive findings below about the 'traffic and parking' aspects of the proposal, I am struggling to see how the proposal will cause any meaningful negative impacts on the operation of these other traders.
2. The more relevant question seems whether the proposal would cause any fatal amenity impacts on the nearest residential properties to the west, on the opposite side of Fischer Street.
3. At a basic level, with these nearest properties lying in a transition area right next to land zoned Commercial 1, the occupants of these properties need to accept that their 'reasonable amenity expectations' have to be tempered, compared to dwellings more in a 'residential hinterland' location.
4. In this more 'tempered situation', I find that the proposal will not cause any unreasonable amenity impacts on the closest residential properties to the west, relying on the following points:
   • There is no direct residential abuttal here - the closest dwellings lie on the opposite side of Fischer Street, with this street having a carriageway width of almost 10 metres. A corner site such as this on the edge of the NAC inherently reduces the residential interfaces involved.
   • A number of these nearest dwellings are themselves fairly visually prominent buildings.
   • From both a 'noise' and a 'visual bulk' perspective, it is a positive feature of the proposal that the kiosk will be set a large distance back from the western boundary.
   • The proposal includes considerable landscaping, which will soften views into the site.
   • The proposed permit conditions are comprehensive and provide a real level of assurance that (if a permit issues) the new use must very much operate in a suitably controlled manner. Notably, whereas '24 hours a day' operation was originally proposed, it is now accepted by the applicant that the operating hours should be between 6 am and 11pm 7 days a week. There are also proposed conditions dealing with 'general amenity and nuisance' issues, lighting, construction management issues and waste & loading operations.
   • I consider the proposed additional traffic/traffic noise generated by the proposal to be limited and acceptable, bearing in mind that it seems reasonable to assume that many potential patrons will be doing multi-purpose trips and may well have come to The Dunes Village anyway.
   • Likewise I see the proposed arrangements for a tanker truck to periodically refill the underground fuel storage tanks to be reasonable. These re-fuelling visits will be fairly modest in frequency[7] and the applicant has volunteered that the allowable hours for this refuelling can be limited to 7 am to 6 pm Monday to Friday and 7 am to 1 pm on Saturdays, with no such access allowed on Sundays. Having these more restricted hours avoids re-fuelling occurring at more noise-sensitive times when nearby residents will be seeking to sleep.
5. I am satisfied with the expert acoustic evidence of Mr Tardio that the noise implications of the proposal are within acceptable parameters vis-à-vis the nearest residential properties. It needs to be said that these properties are sited next to a NAC and that there are already aspects of the operation of The Dunes Village where there is after-hours activity and presumably noise. I refer here to the Woolworths store apparently being able to operate 7.00 am to 10.00 pm and the gym I am told having maximum operating hours of 5.00 am to 8.00 pm.
6. It also seems fair to say that the proposal will have an amenity benefit for these closest residential neighbours, in that a service station in this location will allow the local neighbours to buy convenience items like milk or bread until 11 pm, whether or not the main Woolworths store or any specialty stores are open. Likewise these neighbours will not have to leave this locality to re-fuel their vehicle.

WOULD THE PROPOSAL BE AN ACCEPTABLE TRAFFIC AND PARKING OUTCOME?

1. I find the expert traffic evidence of Mr Turnbull (who is a very experienced traffic engineer) to have satisfied me that the proposed 'traffic and car parking' aspects of the proposal are acceptable. I see the major positive factors here to be that the location is near the edge of a NAC and that Fischer Street has the status of a local collector road.
2. The design provides for vehicles to enter the service station from the south and exit to the west, which I accept is sensible and appropriate. I endorse the position that the existing internal road entry point to the south of the subject land is adequate for the purposes of potential service centre customers driving in off Fischer Street and then turning left into the service station. Alternatively, a driver already in The Dunes Village car park might approach the service centre entry point from the car park area. I am satisfied that Fischer Street can adequately deal with some degree of additional traffic movement exiting from the service station - Fischer Street is a local collector road, this is a greenfields location and there is no suggestion that Fischer Street is even close to its maximum traffic capacity.
3. Whilst recognising that the arrangements for a 19 metre tanker truck to move in and out of the service centre area are somewhat tight, I accept Mr Turnbull's evidence that the substituted plans provide adequate space for both the 'in' and the 'out' movements - his turning circle diagrams are helpful here.
4. Where the proposal involves the provision of a handful of parking spaces right in front of the kiosk, this is appropriate for those patrons who do not need petrol but rather might want to buy other convenience items such as milk or bread.
5. Where concerns were raised about possible undue risks to pedestrians and/or cyclists posed by customers of the service station exiting onto Fischer Street, in my view these concerns are exaggerated. I expect drivers exiting the service station to do so cautiously and slowly in this NAC location, and that likewise pedestrians and cyclists would exercise care and common sense.
6. I am also satisfied with the evidence of Mr Turnbull that with the layout of the proposed service station, there should be no undue queuing, and that the proposed loading arrangements are in order.

IS THE PROPOSAL CONSISTENT WITH THE REQUIREMENTS OF CLAUSE 52.12?

1. Clause 52.12 is the particular provision dealing with the planning assessment of proposed service station uses. Paragraph 220 of the Council written submission usefully notes that:

Clause 52.12 is an unusual clause. It begins by prohibiting the use of land for the purposes of a service station unless certain requirements are met. It then provides that a permit may be granted to vary those requirements if 'the responsible authority considers a better design solution will result'.

1. Council's written submission at pages 41-43 acknowledges that three such variations are sought and urged the Tribunal to find that no such 'better design solution' will result, making this a fatal problem for the proposal. To quote from [215] of this written submission:

215.1 Proposed crossover to the internal road opposite the NAC is greater than 7.7 metres.

215.2 Site depth of at least 30 metres is not met (though it is acknowledged that the differential is in the order of 1 metre).

215.3 Requirement that the 'wall of a building must be at least 9 metres from a road' is not met.

1. Without needing to repeat it here, I refer to the helpful discussion at page 42 of the Council written submission of the relevant aspects of Azzurre Sapphire Pty Ltd v Kingston CC [2006] VCAT 2381. This discussion also notes that the decision maker must both be satisfied of the 'better design solution' merits of the proposed variations, plus be satisfied overall that there will be an acceptable outcome. At [223.3] there is an explanation of how the Azzure Sapphire decision indicates the issue of 'better design solution' should be approached, which I have taken into account here.
2. Relying on the following factors, I consider that:
   • It would be a 'better design solution' for the three necessary variations to Clause 52.12 to be granted.
   • There would be an overall acceptable outcome here, when assessed against Clause 52.12.
3. First, it needs to be said that there are a substantial number of points of reference to be considered under Clause 52.12 and the proposal meets most of them. In other words, the three points where a variation is sought needs to be seen in context. Where the Turnbull written report at pages 16-17 sets out 14 relevant Clause 52.12 criteria, the table confirms 11 of the 14 as being met by the proposal.
4. Second, where the 'site depth of at least 30 metres' criteria is not met, I consider the non-compliance to be of little consequence because the depth involved is 29 metres rather than 30. This one metre extent of non-compliance seems of little consequence, along the same lines of the legal principle of de minimis non curat lex (the law does not concern itself with trifles[8]). In other words, I consider it to be a better design solution to work with the current design with this 29 metre depth, rather than insist on a 30 metre depth which might then throw out other aspects of the design.
5. Third, I am satisfied it is an appropriate and better design solution that the crossover to the internal road has been widened beyond 7.7 metres to 10.7 metres - it was the expert traffic engineering evidence of Mr Turnbull that this extra width is necessary for a tanker truck to be able to swing into the site, so as to refuel the underground fuel tanks. Turning circle diagrams demonstrating this formed part of his evidence. This seems a common sense type of alteration, keeping in mind that it is an internal not an external road affected.
6. I find it a bit unreal that Council's arguments on this issue at [225] of the Council written submission seem to assume that it is not a legitimate consideration to have regard to 'tanker truck access'. I do not see any particular pedestrian safety concerns here - such trucks will only need to access the site with a modest level of frequency, would presumably drive slowly and I expect pedestrians would also show appropriate caution if moving around nearby.
7. Fourth, I accept that it is a better design solution that the proposed kiosk is set back 9 metres from the Fischer Street western boundary but relatively close (3 metres) to the Falcon Drive northern boundary. That is, I see this as preferable to the kiosk theoretically being located roughly in the middle of the service station area so as to be set back 9 metres from both the western and the northern boundaries. The obvious point here is that I agree with the applicant that it would be functionally a very compromised (if not unworkable) layout for the kiosk to be roughly in the middle of what is a decent sized but not huge development area.
8. Beyond that, I accept the position being put forward by Mr Biasci and Ms Forsyth that it is a better design outcome to have the kiosk at least 9 metres back from the more sensitive Fischer Street interface to the existing dwellings on the opposite (western) side of that street. I agree that the northern interface is much less sensitive - the adjacent land to the north is not nominated for residential lots under the endorsed Development Plan dated 3 May 2016 but rather anticipates 'Mixed Use' and 'Child Care' for the land to the north, plus 'Aged Care' for the land to the north-east.
9. This northern interface will be assisted by the fact that the design of the northern edge of the development area includes landscaping and a proposed form of artwork. Whilst acknowledging that the view of the rear of the kiosk will be somewhat robust, over time the landscaping should considerably soften this view, plus there will be the artwork.
10. Fifth, if one considers both the design of the proposal and the proposed permit conditions, I am satisfied that the proposal has had suitable regard to the Clause 52.12 purposes of considering the "amenity, site layout and design" of the proposal on this site next to a residential zone, and also the purpose of "To ensure that the use of land for a service station does not impair traffic flow or road safety".
11. Similarly I accept that the proposal is consistent with the following 'Amenity requirements' Clause 52.12 provision:

The amenity of the locality must not be adversely affected by activity on the site, the appearance of any building, works or materials, emissions from the premises or in any other way.

1. I acknowledge that a poor design response and/or inadequate permit conditions might fall foul of this aspect of Clause 52.12. For example, it may well have been difficult to accept that the theoretical '24 hours a day' operation of the proposal could be consistent with this provision. However here I am satisfied that this is a good design, that the proposed permit conditions are comprehensive and that the proposed hours of operation of 6 am to 11 pm are suitably tempered.
2. Finally, to the extent that the assessment against Clause 52.12 throws up traffic, acoustic and/or planning issues, I rely on the credible expert evidence of the three expert witnesses called by the applicant - their evidence did not waver in any significant way through the questioning process.

1. In relation to the basic nature of the proposed built form and the proposed use of materials, colours and finishes, I have already commented that I accept the main features of the new built form to be appropriate, although I also support Council's proposed permit condition requiring more muted colours. Allowing for same, I see the scale, height and design of the kiosk, canopies and various improvements as reasonable in this NAC context.
2. Where permission is required for signage pursuant to Clause 52.05-9, the general nature of the proposed signage is in my view appropriate for a service station use located at the edge of a NAC, noting that that parties have agreed to amend Condition 34 dealing with the pricing sign. It seems reasonable to take the approach that service stations inherently involve a real extent of signage, both for branding and to provide information about the relevant fuel prices. It also needs to be said that the location being on the edge of a NAC rather than a residential hinterland location, some degree of signage (eg veranda signs) already forms part of the character of this location. It is a plus that the proposed illuminated signage will generally face towards the internal road, rather than being oriented towards the more sensitive Fischer Street.
3. In relation to the proposed six metre high pricing sign, these type of taller signs are a common aspect of service stations and have a very functional where they notify of the current price that fuel is being sold at. This new sign will sit at 90 degrees to Fischer Street and alongside the existing seven metre high promotional signage for The Dunes Village, which features several individual panel signs.
4. I note that concerns were raised about potential lighting problems - see page 45 of the Council written submission. I am satisfied that this is an operational issue which can be readily dealt with through the permit conditions.
5. In closing then, for the reasons set out above, Council's Notice of Refusal to Grant a Permit is set aside and I have directed that a permit issue, subject to the final version of the draft permit conditions set out in the Appendix to this decision.

• The use and development of a service station, construct and display business identification signage, variation of loading bay requirements (Clause 52.07) and variation to the requirements of Clause 52.12.

1. Before the development starts, amended 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 prepared by TRG, Project No V364, Drawing Numbers TP01 Revision P6, TP02 Revision P8, TP03 Revision P8 and TP04 Revision P5, but modified to show:
   • (a) As required, Reserve No. 2 on Plan of Subdivision 647751T;
   • (b) As required, alterations to the proposed development to avoid Reserve No. 2;
   • (c) An acoustic barrier around the refrigeration and air conditioning plant (including specifying the material used eg fibre cement sheet or treated timber);
   • (d) Finished surfaces levels to demonstrate that runoff drains to designated pits, to ensure contaminated water is directed to appropriate treatment facilities;
   • (e) An amended schedule of external materials, finishes and colours which includes:
     • (i) Replacement of zincalume roof cladding with a dark toned pre-painted metal cladding;
     • (ii) Replacement of Dulux Grass Court and Dulux Caltex Red with colours consistent with the palette colours used within the existing commercial development;
   • (f) Loading bay, crossovers, curbs and markings outlined in the report prepared by Henry Turnbull dated 26 May 2017.
2. Before the development starts a qualified acoustic expert must prepare an acoustic report and a copy must be provided to the Responsible Authority, that details the noise attenuation measures (physical and/or managerial) required to ensure that the residential amenity of surrounding residential areas is not materially impacted, including compliance with the requirements of the Guidelines: Noise from Industry in Regional Victoria, EPA Publication 1411. The report should be generally in accordance with the Acoustic Technical Report prepared by Octave Acoustics dated 26 May 2017 but modified to include:
   • (a) Noise mapping that:
     • (i) shows the proposed development accurately aligned with the property boundaries;
     • (ii) accurately shows the siting of nearby residential buildings
   • (b) Assessment of audible alarms associated with air filling

The recommendations of the acoustic report must be approved by the Responsible Authority in writing and once approved implemented to the satisfaction of the Responsible Authority prior to the completion of the development and commencement of use. Managerial attenuation measures must be implemented at all times that the use is operating to the satisfaction of the Responsible Authority.

1. Concurrent with the plans required by Condition 1, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the plan prepared by John Patrick Pty Ltd, Job No. 16-198, submitted with the application, but modified to show:
   • (a) Existing conditions, including landscaping, within at least 3 metres of the east and northern boundaries of the site;
   • (b) Replacement of Acacia implexa with Acacia melanoxylon;
   • (c) Additional tree planting within the site to the Fischer Street frontage;
   • (d) Surface finishes.
   • (e) A notation clarifying that the new landscaping along the northern boundary must not block views of the artwork on the northern side of the kiosk.

All species selected must be to the satisfaction of the responsible authority.

1. Concurrent with the plans required by Condition 2, detailed road and drainage construction 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 detail alterations to Fischer Street including, but not limited to:
   • (a) Replacement of concrete footpaths to suit the proposed access
   • (b) Drainage infrastructure
   • (c) Street lighting
   • (d) Street signs
   • (e) Street trees and other landscaping

All works constructed or carried out must be in accordance with those plans.

1. Before the development starts a construction management plan (three copies) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must address the following matters:
   • (a) Measures to minimise the impact of construction vehicles arriving at, queuing, and departing from the land, including haul routes;
   • (b) Measures to accommodate the private vehicles of workers/ tradespersons;
   • (c) Details of the location of all construction equipment and facilities, including delivery points, storerooms, toilets, temporary offices and workers' facilities;
   • (d) Noise attenuation measures to be put in place to protect the amenity of nearby residents during construction having regard to the EPA Guidelines on Construction and Demolition Noise;
   • (e) Measures to minimise the generation and dispersal of dust;
   • (f) Details of a 24 hour hotline for access to a contact person or project manager accountable for the project and compliance with the CMP;
   • (g) Arrangements for waste collection and other services to be provided during construction;
   • (h) Protection of water quality;
   • (i) Protection of existing infrastructure and landscaping.
2. Before the development starts a landscape performance bond must be lodged with the responsible authority. The bond must be based on the endorsed landscaping plan with additional details to be provided to the satisfaction of the Responsible Authority incorporating:
   • (a) An estimate of the quantity and type of materials, watering equipment, plants etc required and;
   • (b) A quotation from a reputable landscape contractor for the implementation of the landscaping plan identifying the costs for materials, plants and labour. The quotation is to be verified to Council's satisfaction. The bond is to comprise the verified quotation plus a 25% margin for unforseen costs. When the works are complete to the satisfaction of the Responsible Authority, 85% of the bond is to be released. The balance is to be retained as a maintenance bond for three (3) years. If the landscaping has not been maintained to the Authority's satisfaction at the end of three years, the maintenance bond is to be applied to upgrade the landscaping.

1. Before the occupation of the development, road and drainage construction as shown on the endorsed plans must be completed in accordance with the endorsed plans to the satisfaction of the responsible authority.
2. Before the occupation of the development the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

1. The use may operate only between the hours of 6:00am to 11:00pm daily.

1. The use must be conducted to the satisfaction of the responsible authority so that the amenity of the area is not detrimentally affected by the use or development, through the:
   • (a) Transport of materials, goods or commodities to or from the land;
   • (b) Appearance of any buildings, works or materials;
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) Presence of vermin.
2. The on-site public address system must only be used for emergency announcements and must not be used for the purposes of audio playback.
3. Noise levels emanating from the premises must comply with the requirements of the Guidelines: Noise from Industry in Regional Victoria, EPA Publication 1411.
4. Within one (1) month of the commencement of use, acoustic testing shall be undertaken by a suitably qualified professional to assess compliance with the requirements of the Guidelines: Noise from Industry in Regional Victoria, EPA Publication 1411 (the Guidelines) and the endorsed acoustic report. The assessment shall be provided to the responsible authority within one (1) month of completion of testing and shall include recommendations, if required, to achieve compliance with the Guidelines and endorsed acoustic report. Any recommendations must be implemented to the satisfaction of the responsible authority within one (1) month of the responsible authorities approval of the assessment, unless an alternative timeframe is agreed in writing with the responsible authority.
5. All plant and equipment shall be located or screened to the satisfaction of the responsible authority so that is it not visible from any public road or residential property.
6. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.
7. All external lighting and illuminated signs must be fitted with timers and dimmers as required, to allow for control of light spill to be limited, so as to not impact on the amenity of surrounding residential properties, to the satisfaction of the responsible authority. Light intensity once set must not be altered except with the written consent, or at the direction, of the responsible authority.
8. Odours offensive to the senses of human beings must not be discharged beyond the boundaries of the premises to the satisfaction of the responsible authority.

1. Before the occupation of the development, the area(s) set-aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed
   • (b) Properly formed to such levels that they can be used in accordance with the plans
   • (c) Surfaced with an all-weather-seal coat
   • (d) Drained
   • (e) Line marked to indicate each car space and all access lanes
   • (f) Clearly marked to show the direction of traffic along access lanes and driveways

to the satisfaction of the responsible authority.

1. Parking areas and access lanes must be kept available for the designated purposes at all times.
2. Vehicles under the control of the operator of the use or the operator's staff must not be parked on the nearby roads.
3. The following requirements shall apply to vehicle crossings and driveways that shall be constructed to the satisfaction of the responsible authority:
   • (a) Vehicle crossings shall be constructed in reinforced concrete or other approved material;
   • (b) New vehicle crossings to suit the proposed driveways shall be constructed;
   • (c) Pathways shall be replaced with a section capable of sustaining traffic loadings where vehicle crossings are constructed or relocated.

1. The loading and unloading of goods from vehicles providing deliveries to the service station, including kiosk, must only be carried out on the land.
2. Fuel deliveries to the site must only take place between:
   • (a) 7:00 am and 6:00 pm Monday to Friday;
   • (b) 7:00 am and 1:00 pm Saturday.

Other deliveries to the site must only occur between:

(c) 7:00 am and 10:00 pm Monday to Saturday;

(d) 9:00 am and 10:00 pm Sunday and Public Holidays.

(e) 7:00 am and 8:00 pm Monday to Saturday;

(f) 9:00 am and 8:00 pm Sunday and Public Holidays.

1. The permit holder must procure that the operator of the service station shall ensure that companies making deliveries or collecting waste are aware of the relevant requirements of this permit and that the operator uses its reasonable endeavours to promote compliance with same, to the satisfaction of the Responsible Authority.
2. Fuel tanker(s) access routes must be via Merrijig Drive to the Surf Coast Highway and not along Fischer Street except as necessary to exit the site and return to the Surf Coast Highway via Merrijig Drive.

1. Concurrent with the plans required by Condition 2, a waste management plan must be submitted to and approved by the Responsible Authority. The plan must provide details of a regular garbage collection service, including information regarding the type of refuse bins (including public litter bins), type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. The plan must be implemented to the satisfaction of the Responsible Authority.
2. All bins and receptacles shall be maintained in a clean and tidy condition and free from offensive odour.
3. All bins and receptacles used for the collection and storage of garbage, bottles and other solid wastes shall be kept in a storage area screened from view to the satisfaction of the responsible authority.
4. Litter on the site must be collected at least daily and placed in waste storage bins to the satisfaction of the responsible authority.

1. No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
2. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. The approval of this permit to use and develop the land will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit;
   • (b) The development is not completed within four years of the date of this permit;
   • (c) The use is not started within four years of the date of this permit;
   • (d) The use is discontinued for a period of two years.

The permit may be extended with the written approval of the Responsible Authority pursuant to Section 69 of the Planning and Environment Act 1987.

1. Before the display of advertising signs, amended 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) Sign 01 reduced to a total advertising area not exceeding 10.0 square metres (on each side of the sign);
   • (b) The area of promotion signage on sign 1 (on the application plans consisting of a 4 cent discount sign) not exceeding 2.0 square metres;
   • (c) Entry and exit signs must not include promotional content.
2. The signs must not contain any flashing lights.
3. A sign may only be illuminated during the operating hours of the use.
4. The signs must be constructed and maintained to the satisfaction of the responsible authority.
5. All signs must be located within the boundary of the land.
6. The approval of this permit to display advertising signs shall expire when the permission to use the land for a service station expires.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Although on my reading of the latest plans, there are six ordinary car parking spaces, a disabled space, a staff parking space and a loading area. However nothing of any consequence turns on this difference anyway.

[3] And noting that as 'generally in accordance with' has been held to be a question of fact, it is in order that the Tribunal may have regard to the relevant opinions of an expert witness on same.

[4] Indeed some might say it is rather dis-ingenious for Council to be arguing that this proposal fails to be 'generally in accordance with' the endorsed Development Plan, when running this argument is contrary to the explanation of 'retail activity' in Council's own Retail Strategy for this area (being a Reference Document under the Planning Scheme).

[5] Noting that the Vestey case is authority that extrinsic materials are to be read in an objective rather than a subjective manner.

[6] In Woolworths Ltd v Boroondara CC [2004] VCAT 2270 Member Read expressed the view that a service station is a form of retail activity, but in Woolworths Ltd v Wodonga RC [2006] VCAT 2034 the Tribunal stated that "...There is a strong basis to the case that a service station is not a retail use...".

[7] It was the evidence of Mr Turnbull that the tanker truck would typically need to attend about 3-4 times a week.

[8] See Osborn's Concise Law Dictionary 7th Edition.