Woolworths Ltd v Wodonga RC [2006] VCAT 2034

1 In permit application no. 2005/175, the decision of the Responsible Authority is affirmed. A permit must not be granted and no permit is to be issued.

Mr G Peake of counsel instructed by Ms E Bergin of Mallesons Stephen Jaques. Evidence was called from:

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Mr E Mensforth, traffic engineer;

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Mr R Milner, town planner;

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Mr J Patrick, landscape architect.

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Mr R Burton, acoustic engineer;

Ms S Porritt of counsel instructed by Mr M Monaghan, solicitor of Kell Moore solicitors. Evidence was called from Mr P O'Dwyer, town planner.

Mr R J Mahaffey on behalf of The Legacy Club of Albury Ltd.

1 Woolworths Ltd proposes a service station and convenience restaurant immediately south of Wodonga's primary retail precinct. As the Rural City of Wodonga refused the permit application, Woolworths has sought review of that decision. The Tribunal must decide whether a permit should be granted. The determinative issues are whether the proposal represents a suitable response to the policy framework that applies in land use and built form terms. A large number of additional issues were raised by the parties including the potential for noise, odours, parking and traffic impacts. Having considered all submissions and evidence, assisted by multiple inspections of the site, nearby and wider areas, I will affirm the Council's decision. In setting out my reasons, I do not recite all of the material presented as all documentation is held on the Tribunal's file.

2 Located on the north-west corner of Beechworth Road [1] and Nilmar Avenue, the review site is 2,058 square metres in area and vacant. Until around six years ago, the land was used as a service station. A one-way service road along Beechworth Road provides access to the land in addition to access from Nilmar Avenue. The service lane leads into the large roundabout at Lawrence Street, Beechworth Road, Hovell Street and Thomas Mitchell Drive. A prominent water tower addresses the intersection. There are also several properties with crossovers directly into the roundabout. Land uses abutting and close to the site are commercial or community-based facilities. Properties to the north and west appear to be former dwellings used as offices. Nilmar Avenue comprises offices, dwellings and a Legacy Club. To the south is a church and dwellings.

3 Approval is sought for a Safeway petrol outlet comprising four bowsers, two LPG gas dispensers, a convenience restaurant (150 square metres) and pay point with an area of 78.4 square metres. The layout would enable eight vehicles to fuel at one time, extending across the site. Separate ingress and egress points are proposed to/from Beechworth Road with a shared ingress/egress from Nilmar Avenue. On-site parking for 13 spaces is proposed plus a space for users of air/water facilities. A landscape plan has been provided.

4 The plans indicate the convenience restaurant to be a Piazza Hut with drive-in and delivery services. It would operate from 11 am - 10pm Monday to Thursday, 10am - 11pm on Friday and Saturday, and 10am - 10pm Sunday.[2] The service station would operate 24 hours, 7 days a week.

5 Proposed signage includes a 6 metre high x 2 metre wide price sign board to the north-east corner of the land, a sign for air and water facilities adjacent to the southern boundary, internally illuminated logos on the southern fascia of the building, and directional arrows at entry and exit points. No signage is proposed for the convenience restaurant.

6 A permit is required to use and develop the review site for a service station and a convenience restaurant under the Wodonga Planning Scheme.[3] No Overlays affect the site. Clauses 52.12[4], 52.06 and 52.07 are relevant to services stations, car parking and loading. Permission is required for one of the proposed advertising signs[5] and to alter access to a Road 1 Zone.[6]

Are the Proposed Land Uses Consistent with Policy?

7 One of the core issues between the parties is whether the review site is a suitable location for a service station and convenience restaurant.

8 The Council and Respondent Objectors submitted the intended use of the land is for offices and the proposal does not accord with the primary purpose of the zoning and policy directions of the Scheme. Mr O'Dwyer gave evidence that the proposal involves retail-type uses that are at odds with the policy direction (reflected in the zone provisions and Town Centre Study). He also said that the proposal would represent an under-utilisation of Business 2 land, that is limited in its supply, and would be inconsistent with policies for this gateway into the retail heart of Wodonga.

9 In response, Mr Peake submitted that a service station and convenience restaurant are acceptable uses in a Business 2 Zone, on a main road, on land without direct residential abuttals, on the periphery of the retail core and on land previously used as a service station and motor repairs. He submitted that there are no compelling policy reasons why the uses are not acceptable.

10 While the link between the proposed land uses and their built form is critical in this case, and both aspects have been considered together, for ease I deal with land use considerations first and built form matters below.

11 The following attributes of the review site correctly identified by Mr Peake weigh in favour of the proposed combination of land uses as a matter of planning principle:

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the review site is on a main road leading into the heart of Wodonga in a situation of high traffic volumes, potential for passing trade and reasonable proximity to the Safeway stores that would be participating in a petrol discount scheme;

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the review site is zoned for commercial activity not residential;

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the review site has no direct residential interface, although it is near to dwellings zoned residential on the south side of Nilmar Avenue;

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other land uses abutting the roundabout are non-residential and involve a mix of retail, commercial and civic activities, including a Mobil service station;

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service stations are routinely found in urban areas.

12 It may also be felt relevant that the review site is quite large and that a substantial part of it was previously used as a service station. However, that was some six years ago and it is common ground between the Applicant and Council that no existing use rights apply.

13 Assuming that the review site can physically accommodate the proposed uses (discussed again below), the critical questions are whether the planning policy framework set out in the Scheme guides a decision in a particular way and whether there are any reasons to depart from any clear direction given. In confining my consideration in this way, I have formed a view that the Business 2 Zone is not exclusively an office zone as discretion exists to allow a range of specified and innominate uses. While Mr Peake stressed that the Council only wants an office on the review site, and that may have foundation based on some of the material and evidence available to me, it is self evident that a range of uses are possible in the Zone. Even the site's nomination in the Town Centre Study in "gateway - office professional" suggests a wider range of uses than "office" as defined in the Scheme.

14 In reviewing the Scheme's policy framework, including recommendations from the Town Centre Study that are drawn into consideration by Clauses 21.11 and 22.18 in particular, I find there to be a clear strategic direction relating to the Wodonga Town Centre and nearby peripheral areas. That is:

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to consolidate High Street as the main retail core and part of a larger town centre that ceases at the north side of Lawrence Street.

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to retain and reinforce the primacy of Central Business Area.

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to avoid core uses extending southwards from Lawrence Street.

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to strongly discourage free-standing retail uses on the periphery of the CBA or outside the CBA.

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the Schedule to the Business 2 Zone that specifically excludes shops in the area of the review site.

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the Wodonga Town Centre Study, referenced at Clause 21.05, includes the review site in an area for "gateway - office professional"[7].

16 As it is common ground that there review site is outside the defined retail core and Central Business Area (or defined town centre), a key land use question is whether the proposed uses are retail uses that are sought by policy to be discouraged in this peripheral CBA location. The evidence differs. Mr Milner said the service station and convenience restaurant are not retailing, or the type of higher order retailing, that the Council seeks to exclude in the location of the review site to avoid competition with the retailing uses it desires in the core. Mr O'Dwyer's evidence was that the proposed uses are retail-type activities that are discouraged or sought to be excluded by policy.

17 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. That is even though it may be described as retailing insofar as petrol and other convenience items are sold. There may be locations within a Business 1 or 2 Zone that such a use is appropriate. Conversely, the convenience restaurant is nested with food and drink premises in the retail premises group.[8] It is, therefore, a retail use. Retail premises are (with qualifications) a Section 2 use in the Business 2 Zone but food and drink premises (with qualifications) are in Section 1 of the Business 1 Zone.

18 I accept the point made by Mr Milner as to higher order retailing that provides a focus in the core. However, even though both uses are possible in land use terms, I do not consider the proposal as a whole accords with the policies in the Scheme to avoid a spread of retailing southwards from the core and to avoid free-standing retailing on the CBA's periphery. Moreover, when considered with built form outcomes, discussed below, I do not find justification from a land use planning perspective to override my concerns about built form. Put another way, I find no strategic imperative for the uses at this location, contrasting with office-type uses that would have strong strategic support.

19 A separate matter is the balance of the land that would be grassed and fenced. This part of the review site is directly behind No. 2 Nilmar Avenue.

20 The intended use, as landscape area behind a colourbond fence, was criticised by the Council as wasted land and added to its argument that the proposal represents an underdevelopment of the review site. Mr Milner stated that the fencing off of the land does not preclude its use when demanded, or in the short term such as play area with the convenience restaurant.

21 While access may be possible to the rear landscaped area with a re-arrangement of the site that is proposed for the convenience restaurant and service station, no provision has been made for separate or shared access to the rear of the land behind No. 2 Nilmar Avenue. While not technically landlocked, there would be significant implications for the layout of the service station/convenience restaurant if access to the rear land was required for an alternative use. I am not persuaded that this is a good approach to the planning and development of the whole of the land.

22 Relying on Mr O'Dwyer's evidence, Ms Porritt submitted the proposal's built form outcome would not be acceptable in terms of the setback of the kiosk, the lack of contribution to the policies applying to Beechworth Road, the facility's utilitarian styling and "off-the-shelf" design. Reference was made by the Council and particularly Respondent Objectors to the considerable work undertaken by the Council to enhance the Wodonga town centre including urban design improvements and streetscape works proposed through the Town Centre Study and Urban Design Framework.

23 These submissions were challenged by Mr Peake. Relying on the evidence of Mr Milner, he submitted the proposal is a well designed service station complex and the policies of the Scheme relating to built form should not prevent the proposal being approved. Being a service station, he submitted the key question is whether the built form outcome is acceptable and, having regard to the varied nature of development around the roundabout with no consistent theme; the answer is "yes". Mr Peake submitted the proposal would not intrude on the key public realm landmarks of the water tower, landscaped roundabout and Beechworth Road boulevard. There was some criticism of some of the local policies notably that Clause 22.15 seeks to maintain a residential character along Beechworth Road. Mr Peake questioned the ability to do so when also considering the Business 2 zoning.

24 It is plain that the review site is part of a key entry into the Town Centre focussed on the roundabout and water tower. The location is identified as a gateway in the Town Centre Study and Urban Design Framework. Although Mr Peake suggested it is confined to the public realm I do not think the role of private properties abutting and addressing the roundabout can be excluded. The review site's nomination in The Town Centre Study as "Gateway - Office Professional" reinforces this.

25 I do not intend reciting the local policies included in Clause 22 for building lines[9], main roads, the Beechworth Road streetscape character, and Wodonga Town Centre, as relevant to these proceedings. While there may be ambiguity, when read together key themes can be identified. These are:

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for adjoining development to compliment important vistas;

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to design buildings to enhance the streetscape;

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to set development back from roads to allow space for landscaping;

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to develop to address street frontages;

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to provide car parking to the rear of premises to ensure a garden setting to the front of properties;

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to limit signage to compliment residential character.

26 There is ambiguity insofar as the Council would prefer a zero lot line for this location but the local policy at Clause 22.13 does not prescribe that outcome for a Business 2 Zone and Clause 22.15 could be said to envisage a residential garden setting. Similarly, references to "corporate" identity and signage in the Town Centre Study are open to interpretation although I expect they relate to civic identity rather than private businesses. In this end, any ambiguity is not critical to my decision.

27 While there is a mix of development forms, my multiple inspections, careful review of the Scheme, and consideration of the good work undertaken by the Council to upgrade the Town Centre, all indicate that an attractive and modern presentation of development is sought at this key entry into the Town Centre. There is nothing inherently wrong with the design of the proposed service station and convenience restaurant per se but the extent of hard surfacing, the presentation of buildings to face south rather than into the intersection, the limited area for landscaping and utilitarian styling are all elements that offer little to the gateway location as sought by policy. Although the review site is slightly offset when travelling from Beechworth Road into the intersection given the position of the service lane, when arriving close to Nilmar Avenue, the proposed development would readily be seen. I do not consider it would be a positive addition to this setting. Instead I find it would detract from the gateway and work against the outcome sought by planning policy. I include an assessment against Clause 19.03 in reaching that view.

28 My conclusions adopt similar thinking as the Tribunal in Boyd[10]. Although Hamilton and Wodonga differ, and the context of the review site to Wodonga contrasts with that before [Senior] Member Liston in Hamilton, the similar point is about the urban design of entries. Moreover, in the current case I have a policy framework in the Scheme and actions advanced by the Council to enhance the gateway and define the Town Centre.

29 For these reasons, I am not persuaded that the proposal before me advances the goals and directions being pursued by the Scheme and instead would counter the enhancement of this southern entry to the Town Centre.

Would the Proposal have Unreasonable Traffic or Parking Impacts?

30 There is significant concern by the Council and nearby property owners and occupiers that the proposal would result in difficulties for motorists to depart the review site, add to congestion in the roundabout, and result in increased traffic using local streets notably Hume and Nilmar Avenue (this being the most convenient and direct route from Safeway stores(s) to the proposed Safeway Petrol Plus). Mr Schlink submitted the previous service station, which he operated, closed because of difficulties experienced by customers departing the review site.

31 The design involves an ingress and egress from Nilmar Avenue and separated ingress and egress from/into the service lane and roundabout. A video of the operation of the roundabout was filed prior to the Hearing by the Council and extracts were shown at the Hearing. In addition, I observed the intersection operating on two mornings for some time on each occasion.

32 I accept the submissions by some Respondent Objectors that the proposal will result in queuing on the service lane into the roundabout at busy times and would add to an already congested intersection. The configuration of the roundabout, with six roads intersecting plus driveways with direct access to the roundabout, requires motorists to exercise considerable care. In departing the review site, one must look right, over the shoulder, to gain views to vehicles entering the roundabout from Beechworth Road while also being conscious of any vehicles north of the review site departing a driveway and/or vehicles that may be moving across lanes in the roundabout to access Lawrence Street.

33 Despite the complexities, I am satisfied that the intersection has the capacity to accommodate traffic that may be generated by the proposal even with additional traffic that may utilise the roundabout in time as new development and subdivision continues throughout Wodonga. The capacity of the service lane may be sufficient on most occasions to cater for departing vehicles but I can envisage times at when queuing would result and cause frustrations for patrons of the premises on the review site. If, as Mr Schlink said, this discourages patrons, then that is a business decision.

34 I accept submissions that traffic in Nilmar Avenue would increase if the proposal was to proceed and that is confirmed by the traffic evidence. That evidence indicates traffic volumes would increase by around 30 vehicles per hour in the peak, well within the capacity of the road, but double the existing peak volume. The additional volumes of traffic throughout the day and evening can be accommodated, even with typical weekday activities associated with the Uniting Church.

35 It is relevant to my finding on this point that the increased traffic is not unacceptable in residential amenity terms that the north side of Nilmar Avenue is zoned Business 2 and, one might expect, traffic will increase in time with the higher order use that is likely to result.

36 Specific layout issues raised through submissions focussed on the ability for delivery vehicles (fuelling and other vehicles) to access the review site and load on-site, the length of car spaces along the western boundary (4.9 metres) and the inability for vehicles to turn within the review site to enable them to depart via Nilmar Avenue. I do not intend addressing these in detail given my findings on built form issues. Suffice to say that Mr Mensforth responded to these matters in his evidence and I am satisfied that the layout could work although opportunities for vehicles to depart by Nilmar Avenue would be limited if the site is busy/full. I am satisfied that the amount of parking and area available for refuelling would be adequate.

37 I record Mr Burton's evidence as to the need to restrict refuelling times given that this activity inherently involves a significant amount of noise.

Would the Proposal have Unreasonable Noise and Amenity Impacts?

38 At the Hearing, Mr Mahaffey indicated that his initial concern about a 24 hour operation of a Pizza Hut in terms of drawing drunken behaviour, discarded rubbish and food scraps, was allayed by the hours of operation confirmed by Mr Peake at the Hearing (as cited previously).

39 Noise from the proposal might be generated by the activities of the service station and the convenience restaurant. That may be associated with vehicle movement and patrons. The closest dwelling is on the south side of Nilmar Avenue, as the property at No. 2 Nilmar Avenue has a business use, no residential occupation and is zoned Business 2.[11] Restrictions on the operation of the convenience restaurant and delivery times for fuel would assist to control the potential for adverse noise impacts.

40 While there would be lighting associated with the premises, and the potential for litter to spread further than the site boundaries, I am satisfied that these matters could be addressed by way of appropriate conditions and/or would not warrant refusal of a permit.

41 A permit is needed for a service station under Clause 52.12 in respect of the width of crossovers and setback of the building. The latter is relevant to the discussion above and the former was resolved between the Council and Applicant. I do not need to discuss these further.

42 In relation to other matters raised in submissions relating to drainage, soil contamination and impacts on a heritage building (to the north of the review site), it is sufficient to summarise my conclusions that the proposal would not fail for any of these reasons although conditions would be required to deal with drainage and any clean-up of the land that may be assessed as being required.

43 While there are aspects of the proposal that are acceptable, I am not persuaded that the outcome of this proposal is one that accords with the policy directions of the Scheme. I do not consider that there is a strategic or net community benefit associated with the proposal that overrides concerns that are principally related to the inappropriate built form outcome of a service station and the convenience restaurant at this key gateway into the retail heart of Wodonga. For the above reasons, I will order that the decision of the Responsible Authority be affirmed.

[1] Also known as the Beechworth - Wodonga Road or High Street.

[2] These hours were confirmed by Mr Peake at the Hearing although there is some difference in hours referred to in some of the witness statements.

[3] The review site is within a Business 2 Zone. Decision guidelines set out in Clause 34.02 have been considered by the Tribunal in addition to applicable State policies at Clauses 11, 12, 14.01, 15.05, 17.01, 17.02, 18.01, 18.02, 19.03. Local policies forming the basis of assessment are Clauses 21, 22.13 (Building Lines), 22.14 (Main Road and Entries), 22.15 (Streetscape Character - Beechworth Road), 22.18 (Wodonga Central Business Area) and 22.23 (Equity of Access to Buildings and Facilities). The Wodonga Town Centre Study 1996 and Wodonga Town Centre Urban Design Framework are referenced in the Scheme. I was referred to a draft Central Area Masterplan.

[4] A permit is required under this Clause for the proposed front setback at 6.5 metres (less than 9 metres as set out in the Clause) and crossovers at the width proposed. The provisions of Clause 52.20 relating to convenience restaurants do not apply as the review site is not within a residential zone.

[5] Advertising signage provisions are at Clause 52.05 (Category 2). The price sign information board requires approval.

[6] At Clause 52.29. VicRoads offered no objection to the proposal subject to conditions that are not central to the dispute.

[7] Mr Milner's statement refers to the land as being within "service - business area" but that was revised at the Hearing.

[8] At Clauses 74 and 74 of the Wodonga Planning Scheme.

[9] There is a zero lot line required for Business 1 Zones but not Business 2.

[10] Boyd v Southern Grampians SC [2000] VCAT 1310.

[11] Mr Poulos confirmed the business use of this site at the Hearing.