VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P3747/2008
PERMIT APPLICATION NO. YR-2008/816
CATCHWORDS
Section 79 of the Planning and Environment Act 1987; Yarra Ranges Planning Scheme; Business 1 Zone; Supermarket and shops;
Strategic Framework and Planning Policy; Character; Impact on Residential Land; Traffic; Access to a Road Zone.
APPLICANT
Freeman Tecoma Pty Ltd
RESPONSIBLE AUTHORITY
Yarra Ranges Shire Council
RESPONDENTS
Tecoma Village Action Group Inc.
B Jellett, I & J Landells; D McInerney, K
Williams & others
VicRoads
SUBJECT LAND
Nos. 1529, 1529A, 1531 and 1533 Burwood
Highway, Tecoma
WHERE HELD
Melbourne
BEFORE
J A Bennett, Presiding Member
Bill Sibonis, Member
HEARING TYPE
Hearing
DATE OF HEARING
7, 8, & 9 September and 19 October 2009
DATE OF ORDER
19 November 2009
CITATION
ORDER
1
Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal
Act 1998, the following persons are joined as parties to the proceeding: Y
van Osten, R Smith, A Redsell, J Georgiou, M Georgiou, Y Leeman, G
Wansborough, S Meredith, M Carey, E Crow, P Barnes, K Rook, L Bucci,
M Pepers, A Zanolla, D Seivers, C & P Hermann, Z Powell, S & N Gale, S
Wood, L Miksa, S Graham; E Spencer; R Leslie; K Simpson and T Gough.
2
Pursuant to Clause 64 of Schedule 1 of the Victorian Civil and
Administrative Tribunal Act 1998, the plans identified as
(a)
PD 101, PD 102, PD 103, PD 104, PD 201, PD 301, PD 401, PD 16
and PD 17, all issue A, prepared by John Armsby Architect and dated
25/08/08; and
(b)
The ‘Landscape Masterplan’ and the ‘Elevations and Details’ DWG
No: 308066 LD MP 02, prepared by Tract and dated 10.08.09
are substituted for the application plans.
3
The decision of the Responsible Authority is affirmed.
4
In application YR-2008/816 a permit is not granted and no permit is to
issue.
J A Bennett
Presiding Member
VCAT Reference No. P3747/2008
Bill Sibonis
Member
Page 2 of 17
APPEARANCES
For Applicant
Mr Chris Townshend SC instructed by Aitken Partners. Mr
Townshend was assisted by Mr Jason Kane of Counsel.
Evidence was called from the following persons:
 Mr Andrew Biacsi, Town Planner, of Contour
Consultants Australia.
 Ms Kate Partenio, Traffic Engineer, of GTA Consultants.
 Mr Dieter Lim, Landscape Architect, of Tract
Consultants Pty Ltd.
 Mr Peter Fearnside, Acoustic Engineer, of Marshall Day
Acoustics.
 Mr Robert McGauran, Architect, of McGauran Giannini
Soon Pty Ltd.
For Council
Ms Maria Marshall, Solicitor of Maddocks Lawyers.
Evidence was called from Mr Craig Czarny, Urban
Designer, of Hansen Partnership.
Respondents
Mr M Vegt, Senior Road Access Planner, for VicRoads.
Mr Adrian Atkins, Town Planning Consultant, on behalf of
Y van Osten, R Smith, A Redsell, J Georgiou, M Georgiou,
Y Leeman, G Wansborough, S Meredith, M Carey, E
Crow, P Barnes, K Rook, L Bucci, M Pepers, A Zanolla, D
Seivers, N Lu and C & P Hermann.
M de Bree, B Crisp, J Tenner and A Dealy on behalf of the
Tecoma Village Action Group Inc.
I & J Landells.
B Crisp (on behalf of B Jellett).
D McInerney (on behalf of her family).
K Williams.
VCAT Reference No. P3747/2008
Page 3 of 17
INFORMATION
Description of
Proposal
Construction of a retail development comprising of a
supermarket, two shop tenancies and associated car
parking. Floor areas of 1977m² for the supermarket and
154m² and 127m² for the smaller shops are proposed. Both
of the shop tenancies will have frontage to Burwood
Highway, as will the lobby area of the supermarket. A total
of 117 car spaces are to be provided underneath the
building, with access to the parking area being provided
from both Burwood Highway and Sandells Road. A further
3 staff car parking spaces are to be located in the north-west
corner of the land, to the rear of the loading bay.
At the Burwood Highway frontage, the height of the
development is in the order of 7.3 metres. Due to the fall of
the land, this height increases to in excess of 11 metres at
the northern elevation. The loading bay is an exception to
this as it is proposed to have a height of 7.6 metres.
Setbacks from the northern boundary generally range
between 6.5 metres to 11 metres. Adjacent to the southwest corner of the property at 89 Sandells Road, this
setback reduces to approximately 2.5 metres. A landscape
buffer is to extend along the northern boundary and part of
the eastern boundary which interfaces with the residential
properties. This width of this buffer varies between 4.8
metres to 11 metres at its widest point.
Zone and Overlays
Business 1 Zone.
Wildfire Management Overlay.
Permit Requirements
Clause 34.01-4 – construction of buildings and works on
land within a Business 1 Zone.
Clause 44.06-1 – construction of buildings and works
associated with a retail premises on land within a Wildfire
Management Overlay.
Clause 52.02 – alteration or removal of an easement.
Clause 52.06 to reduce the car parking requirements
associated with the use of the land for the purpose of a
shop.
Clause 52.29 to create or alter access to a road within a
Road Zone Category 1 (Burwood Highway).
Clause 53.01 – removal of vegetation.
VCAT Reference No. P3747/2008
Page 4 of 17
Land Description
The review site is located on the north side of Burwood
Highway, Tecoma, between Sophia Grove and Sandells
Road. The land is an irregular parcel comprised of four (4)
allotments which have a combined area of 3733 square
metres. A frontage of 76 metres is presented to the
Burwood Highway. Part of the property is vacant, with the
remainder being occupied by three (3) buildings
accommodating a restaurant and retail/commercial uses. At
the rear of the site is an at-grade car park. Access to the site
from Burwood Highway is via a carriageway easement
which extends along the property’s western boundary.
Access from Sandells Road is similarly via a carriageway
easement which has an east-west alignment. The
carriageway easements are in favour of the Council and are
therefore available for use by the public. Being located on
a ridgeline, the land slopes from south to north and displays
an approximate 9 metre fall to the north-west corner.
The commercial centre of Tecoma extends along the
northern side of the Burwood Highway and encompasses
the review site. To the west is a commercial development
comprised of five (5) tenancies. Occupancies include an
office and restaurant. Three (3) of these tenancies are
oriented in an easterly direction and face the review site.
To the east is a part single storey and part two-storey
building situated on the north-west corner of Burwood
Highway and Sandells Road. This development is occupied
by a video store and an opportunity shop. The centre
extends further east of Sandells Road along Burwood
Highway with a mix of small retail and service premises.
To the north is residential land which is located within the
Low Density Residential Zone. Directly adjoining the site
are a single storey two-unit development, a single dwelling
and a vacant allotment. Further north are a single storey
multi dwelling development and detached single dwellings.
Located to the south, on the opposite side of Burwood
Highway are a medical centre, community centre, a petrol
filling station, the Tecoma Primary School and further
residential development in the form of single dwellings.
Tribunal Inspection
VCAT Reference No. P3747/2008
Inspections of the site and surrounds were undertaken both
prior to and after the hearing.
Page 5 of 17
REASONS1
WHAT IS THIS PROCEEDING ABOUT?
1
Tecoma Freeman Pty Ltd proposes the construction of a retail development
comprising of a supermarket, two shop tenancies and associated car
parking. The Yarra Ranges Shire Council failed to decide upon the permit
and, as the permit applicant lodged this proceeding requesting the Tribunal
to direct the issue of a permit, the Tribunal must decide if a permit should
be granted.2
2
Subsequent to the lodgement of the Application for Review, the Council
considered the permit application and determined to deny its support for the
proposal on grounds relating primarily to policy, design and built form and
impacts on adjoining residential properties.
3
Local residents oppose the development on similar grounds, with the
additional concerns relating to the car parking and traffic impacts of the
proposal.
PRELIMINARY MATTERS
4
At the commencement of the hearing, applications were made to have a
number of persons (principally those represented by Mr Atkins) joined as
parties to the proceeding. There being no objection from any of the parties,
we joined these persons pursuant to Section 60 of the Victorian Civil and
Administrative Tribunal Act 1998.
5
Mr Townshend made application to substitute amended plans for the
application plans. While not objecting to the substitution of the plans, Ms
Marshall raised concerns that the plans had not been circulated to all
persons originally notified of the planning application.
6
Mr Townshend advised that this had been an oversight that had
subsequently been addressed by the provision of the plans to these persons
and that the time for persons to lodge Statements of Grounds in response to
the amended plans would expire during the course of the hearing. He
submitted that there was therefore opportunity for such persons to
participate in the hearing if they so desired.
7
We agreed to substitute the plans pursuant to Clause 64 Schedule 1 of the
Victorian Civil and Administrative Tribunal Act 1998 and advised that, if
the need arose, we would allow any persons who wished to be heard on the
basis on the amended plans to participate in the hearing.
1
We have considered all submissions and accompanying material assisted by our inspection. We do not recite all of the material
presented as all documentation is retained on the Tribunal’s file.
A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.
2
VCAT Reference No. P3747/2008
Page 6 of 17
WHAT IS THE POLICY AND STRATEGIC CONTEXT WITHIN WHICH THE
APPLICATION IS TO BE ASSESSED?
8
Given the context of the site, being located in the foothills of the
Dandenong Ranges, a complex matrix of planning policies and strategies
are relevant to the assessment of the proposal. These were
comprehensively documented in the submissions of Ms Marshall and Mr
Townshend, and also in the evidence of Mr Biacsi. Rather than re-state all
the policies and strategies, we will instead refer to the main policies and
policy themes which are of importance to the consideration of this proposal.
State and Local Planning Policy Frameworks
9
In summary, the State Planning Policy Framework (SPPF) promotes the
following:

Consolidation of the existing urban area to reduce the outward
expansion at the metropolitan fringe and make greater use of
existing infrastructure, services and transport networks.

Increased development of identified activity centres as key
locations for housing, commercial activity, community facilities
and employment. Identified benefits include reducing reliance on
motor vehicles, encouraging economic activity and business
synergies, providing a focal point for communities and supporting
the Principal Public Transport Network.

Protection of the environment, including management of water,
drainage, noise abatement and energy efficiency.

Economic development including the objective of concentrating
major retail developments into activity centres (including strip
shopping centres) which provide a range of land uses and are
highly accessible to the community. The policies encourage
developments which meet the community’s needs for retail and
other services and provide net community benefit in relation to
accessibility and efficient infrastructure use.

Integration of land uses with transport routes and providing
adequate access to developments.

Built form and urban design outcomes which take into account the
natural, cultural and strategic context of the location, contribute
positively to local character and enhance the public realm.
10
Given the role of the Tecoma Village as a neighbourhood activity centre, it
is appropriate to identify the policies as they apply to these types of centres.
This is particularly so as the role of the centre, and its development, was the
subject of detailed submissions by the parties.
11
Relevant Strategies of Clause 12.01-2 include ensuring that these centres
have a mix of uses to meet local community needs, are accessible to the
VCAT Reference No. P3747/2008
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local population by walking and cycling and are an important community
focal point.
12
Local expression to these broader state-wide policies is found within the
Local Planning Policy Framework of the Planning Scheme.
13
The Municipal Strategic Statement (MSS) at Clause 21 commences by
drawing reference to the Upper Yarra Valley and Dandenong Ranges
Regional Strategy Plan, which is currently administered under the Planning
and Environment Act 1987. Relevantly, a key policy direction is that
development be contained to ensure that it does not prejudice the natural
resources and amenity of those who live there, and those who visit the area
for recreation.
14
The ‘Land Use’ element of the MSS identifies Tecoma as being within the
Foothills Residential Areas, together with Belgrave, Upwey, Montrose and
Mount Evelyn. In relation to these areas, Clause 21.04 states:
The Foothills Residential Areas provide for residential living that is
integrated into an environmental setting characterised by an extensive
tree canopy, including remnant vegetation and mature exotic gardens.
Located in the southern parts and lower slopes of the Dandenong
Ranges many of these areas are visually prominent when viewed from
other parts of the Shire and surrounding areas.
There is only limited potential for more intensive development in these
areas if their established character is to be retained. Shopping
facilities and other services are not as comprehensive as those situated
in the more urban parts of the Shire.
15
Of particular relevance to this application are the objectives and strategies
that relate to commercial development and use. These are detailed at
Clause 21.04-2, which identifies the need to consolidate commercial uses in
these areas. The objective of this Clause is to promote the future growth
and prosperity of the Shire. It is policy that:

Commercial centres are the preferred location for retail, business
and community services and encroachment of these uses into other
areas be discouraged.

Any proposed land use reinforces and enhances the established role
of the centre.

Proposed uses be located on sites that can provide adequate car
parking without compromising the character and appearance of the
built and natural environments.

Traffic generated by a proposed use be able to be accommodated
without compromising the functioning of the centre or detracting
from the residential amenity of the surrounding area.

Shops and business uses in the core area of the centre provide a
continuity of retail display windows at ground floor level.
VCAT Reference No. P3747/2008
Page 8 of 17
16
17
Also of relevance, given that the construction of a new development is
proposed, is Clause 21.06 which addresses Built Form within the
municipality. Specifically in reference to commercial centres, a key issue is
their distinctive characteristics that contribute to the identity of the local
community. It is also noted that the design and layout of development in
commercial centres affects their level of accessibility, safety and
convenience for users. Objectives are directed at promoting proper siting
and design; and providing well designed and integrated commercial centres
that provide a range of retail and business facilities to meet the needs of
local residents and tourists. Relevant strategies include:

Encouraging the siting and design of development to respond to the
characteristics of the site and surrounding area.

Designing new development to be compatible with the established
character and built form, or with surrounding commercial
development.

Minimising the intrusion of traffic movements associated with the
centre into adjoining residential streets.
Clause 21.06 states that, when considering applications for commercial
buildings and works, it is policy that:

The building setbacks, height, site coverage, design and scale of the
proposed development be responsive to any established
environmental and built form character of the centre and
streetscape characteristics, and protect the amenity of nearby
residents.

New development on sites adjoining residential areas protects
established residential amenity through the provision of appropriate
building design, setbacks and landscaping which are compatible
with the scale of nearby residential development.

Landscaping be provided where appropriate to reinforce any
established image or identity for the area, or the landscaping theme
characteristic of the centre.
18
Clause 21.07 - ‘Landscape’ - has the objective of retaining and protecting
the scenic landscapes, rural and green wedge character and special
environmental features of the Shire. It is policy that all development be
designed and sited to avoid prominent ridgelines, hill tops and other
visually exposed sites, and be unobtrusive in the surrounding landscape.
19
The only Local Policy of relevance is Clause 22.05 which addresses
vegetation protection. This policy is aimed primarily at the protection of
mature and/or remnant vegetation and has limited application in the
circumstances of this case.
20
In summary, therefore, the policy frameworks of the Planning Scheme
promote appropriate development within the established commercial
centres to enhance and consolidate their role as key focal points for the
VCAT Reference No. P3747/2008
Page 9 of 17
community; and require that all development be sited and designed in a
manner which is sensitive to the landscape character of the municipality.
Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan
21
Clause 12.09 of the SPPF requires the Responsible Authority (and, upon
review, this Tribunal) to have regard to a number of reference documents,
as relevant. The Upper Yarra Valley and Dandenong Ranges Regional
Strategy Plan (‘the Regional Strategy Plan’) is one such document.
22
In considering the provisions of the Regional Strategy Plan, we note that
Clause 53 – Upper Yarra Valley and Dandenong Ranges Region Provisions
– does not apply to the subject application as the buildings and works are
exempted by virtue of their location within the Business 1 Zone3.
Notwithstanding, regard may be had to the Regional Strategy Plan as part of
the consideration of the SPPF.
23
The overarching key policies, objectives and strategies of the Regional
Strategy Plan as they apply to this proposal may be summarised as follows:

State Government policy aims to contain urban development to a
level compatible with conservation of the Region’s environmental
features and high amenity standards.

There will be only limited township expansion, with development
being contained within identified areas. Change should be
managed to achieve a balance between protecting the environment
and providing the necessary economic and social infrastructure to
service the needs of the community and visitors.

Development in townships is to be compatible with the special
characteristics of these areas.
24
More specifically, the Regional Strategy Plan includes objectives for
commercial centres and states that the planning and development of a retail/
commercial centre must not prejudice the designated role of the centre. The
objectives include promoting effective use of land and buildings; creating
attractive centres; encouraging clustering of compatible/complementary
uses in defined zones; providing active street frontages; and incorporating
appropriate landscaping. Significantly, planning and development of a
centre must seek to be consistent with the centre’s projected future roles
and the characteristics of its trading area, and to meet the needs of its
catchment population.
25
Further objectives relate to providing appropriate pedestrian and traffic
movement and car parking; protecting significant buildings and structures;
and achieving a pleasing physical environment.
26
Of particular relevance to this application are objectives relating to the
character of commercial centres, which refer to ensuring that design and
height of any new development within each centre is sympathetic to
3
Refer to Clause 1.0 of the Schedule to Clause 53.01.
VCAT Reference No. P3747/2008
Page 10 of 17
existing buildings; and that buildings harmonise in character and
appearance with adjacent buildings and with the character of the area.
27
Under the Regional Strategy Plan, as it is not identified as a ‘Centre of
Regional Significance’, Tecoma Village is, by default, a Local Centre. The
management policies for such centres are aimed at fulfilment of their
primary role in providing for the daily convenience needs within
neighbourhoods. The planning and development of these centres is to
protect and enhance pedestrian and environmental aspects and minimise
adverse impacts on adjacent residential areas and upon local traffic
movements. The policies address the improvement of the range of
opportunities for the local community in areas of identified need; protection
of environmentally sensitive areas; provision of convenient access;
provision of a safe and attractive environment for users; support for the
viability of the centre; and avoiding conflict with the role of adjoining
community centres.
Vision 2020 By Design - A Built Environment Framework for Yarra Ranges
28
Ms Marshall advised us that the document ‘Vision 2020 By Design’ is an
adopted policy of the Council since April 2009 and submitted that, on this
basis, the Tribunal is entitled to take it into account. This document
includes a hierarchy of the commercial centres within the municipality,
being ‘Street Based Activity Centres’, ‘Mall or Big Box Based Activity
Centres’ and ‘Industrial Areas and Highway Strips’. Tecoma is classified
as a Street Based Activity Centre. The Preferred Character Statement for
these centres is:
Street Based Activity Centres in the Shire will be distinctive for their
fine grain built form, with ground floor activity fronting traditional
streets, and pedestrian activity concentrated along these streets. The
centres will connect directly to surrounding residential areas via
routes that provide a pleasant and safe pedestrian environment. A
backdrop of vegetation will be visible behind the centre and views of
the surrounding hills will be seen from numerous vantage points in
public spaces.
29
The design guidelines promote continuous active frontages; design which is
responsive to its urban context; concealed car parking; retention of views of
backdrop hills and vegetation from public spaces; a fine grain appearance
and articulated building facades; and minimal vehicle crossovers.
Conversely, the guidelines discourage the provision of extensive areas of atgrade car parking; development which obscures views to backdrop
hills/vegetation; and unarticulated building forms.
Activity Centre Design Guidelines and the Interim Guidelines for Large
Format Retail Premises
30
Reference to the State Government’s Activity Centre Guidelines and the
Interim Guidelines for Large Format Retail Premises was included in Mr
VCAT Reference No. P3747/2008
Page 11 of 17
Czarny’s evidence. It was acknowledged that the latter of these relate
specifically to restricted retail premises rather than to supermarkets, but it
was submitted that their application to these types of developments is
relevant. In essence, these guidelines promote the provision of a high
quality public realm, integrating development with its context, achieving
good urban design outcomes and making appropriate provision for car
parking, loading and landscaping. We have had regard to these guidelines
in our consideration of this matter.
IS A SUPERMARKET DEVELOPMENT ON THIS SITE CONSISTENT WITH
THE STRATEGIC AND PLANNING POLICY FRAMEWORK?
31
The Council’s submission did not take issue with the use of the land for the
purpose of a supermarket, conceding that such a use is appropriate and
consistent with the purpose of the Business 1 Zone. Council’s concerns
with the application relate to the proposed built form.
32
The applicant on the other hand impressed upon the Tribunal that
consideration of the proposed use was appropriate in the circumstances,
notwithstanding that the use is not subject to planning approval. It was
submitted that the as-of-right nature of the use should be given significant
weight in the assessment of the proposal, and that the benefits of a
supermarket use to the local community and wider area should not be
overlooked.
33
In the broader sense, the establishment of a supermarket on the site is
consistent with the state activity centre policy which seeks to build up
activity centres as key locations for business uses and as a focal point for
the community. A supermarket on the review site would, no doubt, result
in the provision of a wider range of goods to meet the daily and weekly
needs of the local community than is currently the case. Such a
development would most likely also act as a key attractor within the centre
that may act as a catalyst for further economic activity, thereby
consolidating and enhancing the role of the centre. In a wider context, Mr
Biacsi also stated that a supermarket here would also introduce competition
for other existing supermarkets in the region, such as the one in Belgrave,
and result in further benefits for the general community in the form of
upgraded facilities.
34
In our view, an important consideration in the assessment of the proposal’s
consistency with the planning policy context is the overall strategic vision
for Tecoma as expressed in the Planning Scheme and other Counciladopted documents.
35
It is evident that Tecoma Village is a lower order centre within the
hierarchy of activity centres within the municipality. This is reflected
within the Framework Plans of the MSS (where Tecoma does not appear as
a centre), the Upper Yarra Valley and Dandenong Ranges Regional
Strategy Plan which identifies Tecoma as a Local Centre, and in the
VCAT Reference No. P3747/2008
Page 12 of 17
Council’s ‘Vision 2020 by Design’ document which nominates Tecoma as
a street based activity centre.
36
While we agree with the submission of Mr Townshend that Yarra Ranges is
not “the land that Activity Centre policy forgot” we consider that it is
important that development within Tecoma is responsive to not only its
built form character but also its role within the activity centre hierarchy.
Based on the material before us, it is not intended that its present role as a
centre of the lowest order be altered. It is intended that the local
convenience role of Tecoma be maintained and that the centre not be
elevated to a role which is more regionally focussed.
37
With this policy background in mind, we consider that new development
within Tecoma should be moderated/tempered in its scale and extent to
ensure that it respects the established low profile and modest built form
character of the centre, while responding to modern day retailing and
service needs of the community. For reasons that we will elaborate on in
the following section, we have concluded that the proposal does not strike
this balance.
IS THE FORM OF THE DEVELOPMENT APPROPRIATE TO THE SITE AND
ITS CONTEXT, FROM A CHARACTER AND BROADER LANDSCAPE
PERSPECTIVE?
38
The lower order nature of the Tecoma activity centre is perhaps most
evident in its limited extent and the low profile nature of the constituent
buildings. The existing development is not only modest in terms of its
height, but also in terms of its footprint, where it is largely sited toward the
highway with the area to the rear being developed and used as car parking.
This character is not only influenced by the low scale built forms, but also
the residential nature of adjoining development and the separation which
exists between the residential properties and the commercial buildings –
including the provision of landscaping within this intervening space. The
centre has a strong ‘traditional’ feel, having retained its street based focus,
without the buildings intruding significantly toward the adjoining
residential hinterland.
39
Clause 21.06 states that development should be compatible with, and
responsive to, the established built form and character of the centre. This
does not mean that new buildings need to be identical in their design and
scale with those already existing in the centre. Development should,
however, be designed to be respectful of the existing character and be able
to integrate into the built form context without appearing as an obtrusive
element which does not sit comfortably within its surrounds.
40
We accept that the presentation of the proposed development to Burwood
Highway is generally acceptable in terms of its height, design and
appearance. The proposed two-storey scale will not dominate the
streetscape and represents an appropriate graduation from the adjoining and
nearby single storey buildings. The contemporary appearance of the
VCAT Reference No. P3747/2008
Page 13 of 17
development is also acceptable, although we consider there is potential to
improve its integration with the wider centre by including elements to
reflect the fine grain of development that characterises this centre, rather
than the expanses of glazing.
41
The centre is not characterised by development which extends to within
close proximity of the adjoining residential properties. Not only does this
limit the amount of built form at the rear of the commercial properties, but
also restricts the height of development at the rear, given that the land falls
quite steeply towards the rear of these properties.
42
In contrast, the proposed development will introduce a built form of up to
approximately 11 metres in height, extending to within some 6.5 metres of
the rear boundary. Aside from the likely impacts of this built form on the
amenity of the adjoining residential property, this scale is significantly in
excess of that which characterises this centre and no meaningful attempt has
been made to moderate the height and, potentially, extent of the built form
at its northern end.
43
By its very nature, adopting what may be described as a ‘big box’ design,
the proposed building will be inconsistent with the fine grain which
characterises this centre. While we understand that expansive floor plates
are required for supermarket developments, a tempered approach should be
adopted to reflect an acknowledgement of the modest scale of development
which prevails in the centre. We agree with Mr Atkins that “development
must not be driven by floorspace but instead be based on the role, function
and character of the centre”.
44
In our view this would necessitate adopting a reduced floor plate and
stepping back the development further from the northern boundary. We
consider that a supermarket of a much more modest scale would enable the
consequential built form to be more respectful of its context, while perhaps
also reflecting an acknowledgment of the role of the centre within the
activity centre hierarchy of the municipality. That is, a supermarket which
serves local convenience needs, rather than one which would seek to
compete with larger supermarkets that have a wider, perhaps regional,
catchment - such as the one at Belgrave.
45
As proposed, we do not consider that the development complies with the
policy intent as expressed at Clause 21.06. We find that the proposed
development is too large for its context and will stand as an anomaly within
this local street based centre, to the detriment of its established character.
WILL THE DEVELOPMENT HAVE AN UNACCEPTABLE IMPACT ON THE
AMENITY OF ADJOINING LAND?
46
As with most developments at a commercial and residential interface, this
case raises issues of the building’s impact on the amenity of the adjoining
residential properties. The principal concern in this instance is the
presentation of visual bulk to the secluded private open space areas of these
dwellings.
VCAT Reference No. P3747/2008
Page 14 of 17
47
We accept that an effort to minimise the impact of that part of the
development which accommodates the loading bay facility has been made
by restricting the height of this element to approximately 7.6 metres –
equivalent to a two-storey dwelling. In addition, this part of the building is
to be set back 5.1 metres and 11 metres from the adjoining sections of the
eastern and northern boundaries respectively, with landscaping provided in
these areas to screen and soften the appearance of the structure. We are
generally comfortable with this response and consider that this component
of the development will not present unreasonable visual bulk to the
neighbouring secluded private open space areas.
48
We are, however, not satisfied with the interface of the remainder of the
building with the directly adjoining residential property to the north. This is
the highest part of the development, rising to a height that is in excess of 11
metres, and is set back approximately 6.5 metres from the northern
boundary – 4.8 metres of which is to be landscaped and will incorporate
trees.
49
Due to the fall of the land, the northern elevation presents as the highest
section of the building. It is somewhat unfortunate that this occurs adjacent
to the site’s most sensitive interface. We acknowledge the applicant’s
submissions and evidence that the interface will be treated with landscaping
and materials to reduce the mass and bulk of the wall. Evidence was also
given that the dwelling is oriented towards the north, hence ‘turning its
back’ on the review site, further reducing the potential amenity impacts of
the development.
50
Given the size of the building, and its proximity to the boundary, we are not
satisfied that the proposed setback, wall treatments and landscaping are
sufficient to ameliorate the presentation of bulk to the adjoining land.
Although the dwelling may be oriented toward the north, the rear secluded
private open space area has a direct and exposed interface with the review
site. It is a sensitive area which is well maintained and has the appearance
of being utilised by the residents for their recreational needs.
51
The sheer height and extent of the wall is such that it will loom large over
the neighbouring residential property and will result in an overwhelming
presence to this site. This impact is exacerbated by the lower site level of
the residential property, which will have the effect of further accentuating
or exaggerating the height of the development when viewed from this land.
52
We contrast the review site with a site at Emerald (being the subject of an
application to the Tribunal in the matter of Ritchie Stores & Ors v Cardinia
SC & Anor [2009] VCAT 1232) referred to by Mr Townshend, and which
we viewed on our tour of inspection. The Emerald site has a different site
context - including land slope, adjoining land uses and its location on a
corner – which, in our view, provides a different starting point for any
design response.
53
We do not consider that the interface of the review site with the adjoining
residential land has been successfully resolved. It appears to us that the
VCAT Reference No. P3747/2008
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resultant built form is largely a function of the desire to obtain a certain
floorplate size on the land, rather than a considered response to the
constraints of the land – including the slope and the residential interface.
WILL THE DEVELOPMENT RESULT IN UNACCEPTABLE TRAFFIC
IMPACTS ON THE SURROUNDING STREET NETWORK?
54
The Council’s reasons for not supporting the application did not include
reference to traffic impacts. Rather, the draft conditions circulated by
Council in accordance with the Tribunal’s Practice Note included specific
conditions to respond to the likely traffic implications of the proposal.
These include the conditions required by VicRoads.
55
VicRoads is responsible for the management of the Burwood Highway.
The application was referred to VicRoads for comment in accordance with
Clause 52.29 of the Planning Scheme as it is proposed to alter access to this
road as part of the proposed development. VicRoads did not object to the
application subject to conditions, notably the provision of a right turn lane
into the site and a ban on right hand turns out of the site into the Burwood
Highway.
56
It is fair to say that there was general agreement amongst the experts, and
VicRoads, that the traffic impacts of the development can be appropriately
managed so as to not unacceptably affect either the operation and efficiency
of Burwood Highway, or the residential amenity of adjoining streets. Given
this general agreement, we accept this evidence.
57
A point of difference between Ms Partenio and Mr Boloutis which requires
our consideration and comment is the acceptability or otherwise of trucks
reversing across pedestrian paths and vehicular access lanes to enter the
loading bay area. In our view, the acceptability or otherwise of such an
arrangement is directly influenced by the frequency of deliveries and the
times during which the deliveries are undertaken. Clearly, in a
circumstance where there are a relatively low number of deliveries, and
these occur at either end of the day to avoid the peak trading period of the
supermarket, the impacts of trucks manoeuvring on site are less than would
otherwise be the case. At these times there are likely to be fewer numbers
of people and vehicles in this area who may be inconvenienced or be
directly impacted upon by the truck’s manoeuvres.
58
Ms Partenio in her oral evidence stated that there is likely to be a low
pedestrian circulation in that portion of the site which would be affected by
the manoeuvring required to be undertaken by the truck in order to access
the loading bay. We think that this is correct. Based on the layout of the
development, it appears to us that persons accessing the rear of the site from
the east will enter the building at the eastern end in order to access the lift
or walkway to the supermarket above. Alternatively, persons approaching
the site from the west will use the footpath along the frontage of the site to
access the supermarket and/or shops. The only persons likely to be using
the walkway which extends along the northern boundary of the land are
VCAT Reference No. P3747/2008
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those wishing to traverse the site, which we suspect, are likely to be in the
minority.
59
Further, in response to questions from Mr Townshend, Ms Partenio stated
that a loading management plan to address any potential conflicts between
trucks and vehicles/pedestrians in this area is achievable. We have formed
the view that such a management plan is desirable and would provide
control over delivery times to restrict these to periods where vehicular and
pedestrian circulation on the site would be relatively low. This plan could
also address the need for manual controllers to assist in the manoeuvring of
trucks and avoid any potential conflicts.
60
A further point of difference is whether right hand turns out of the site into
the Burwood Highway should be banned. While VicRoads and Mr
Boloutis advocated this ban, Ms Partenio suggested that the ban only be
implemented if it is demonstrated that it is necessary, once the use of the
supermarket has commenced. Having considered the evidence and
submissions, together with observations undertaken during our inspection
of the site, we agree with VicRoads and Mr Boloutis that a right hand turn
out of the site into Burwood Highway should not be permitted.
61
The operation of the highway in this location is influenced by its
intersections with McNicol Road and Sandells Road, located within a short
distance of each other; the associated complexity of vehicle movements into
and out of these roads; the narrowing of the carriageway when compared to
the section of the highway further west; and the bend in the road, also to the
west of the review site. To add right hand turns out of the site into this
context would add further complexity and unduly complicate the operation
of the highway with potential undesirable implications for its efficiency and
safety.
CONCLUSION
62
For the above reasons we will affirm the decision of the Council and direct
that no permit be issued. In doing so, we are not suggesting that a
supermarket cannot be developed on this site. Indeed, given the size of the
land, we consider that a supermarket could be accommodated on this site to
serve the local community. Such a development will, however, need to be
much more modest than that proposed here. The design, siting and scale
will need to better acknowledge and respond to the character of the area, the
topographical conditions of the site and the interface with the residential
properties. We consider that it will need to provide a lesser floor area with
a commensurate reduction in the size and extent of the resultant built form.
J A Bennett
Presiding Member
VCAT Reference No. P3747/2008
Bill Sibonis
Member
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