VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P43/2023
Permit Application no.WH/2021/1267 	

Applicant	Box Hill OHP Pty Ltd	

Responsible Authority	Whitehorse City Council	
Referral Authority	Head Transport for Victoria (Department of Transport)	

SUBJECT LAND	793-797 Whitehorse Road
MONT ALBERT VIC 3127	

HEARING TYPE	Hearing	

DATE OF HEARING	20 July 2023	

DATE OF ORDER	16 August 2023	

CITATION	Box Hill OHP Pty Ltd v Whitehorse CC [2023] VCAT 949	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	ADS Architecture 	
•	Drawing numbers:	1421, sk01 230506, sk02 230506, sk03 230506, sk04 230506, sk05 230506, sk06 230506, sk06 230506 Revision A and Elevations, Colours and Finishes Schedule	
•	Dated	24 May 2023	

•	Prepared by:	Oxigen 	
•	Drawing numbers:	Landscape Plan Drawing No. 15.047.075, Draft C	
•	Dated 	16 June 2023	
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended to include the construction of buildings and works within four metres of protected trees.
3	In application P43/2023 the decision of the responsible authority is affirmed.
4	In planning permit application WH/2021/1267 no permit is granted.

Jane Tait
Member			

Appearances
For Box Hill OHP Pty Ltd	Eliza Bergin, Counsel, Isaacs Chambers/Foley’s List.  She was assisted by Dani Davidovits from Minter Ellison.  They called the following witnesses:
•	Matthew Lee, urban economist, Deep End Services
•	Darren Tardio, acoustic engineer, Enfield Acoustics Pty Ltd
•	Travis Finlayson, town planner, Ratio
The following expert evidence was tabled at the hearing.  These witnesses were not called to give evidence as their submissions were not contested by Council:
•	John Patrick, landscape architect, John Patrick Landscape Architects Pty Ltd
•	Henry Turnball, traffic engineer, Traffix
•	James Graham, lighting engineer, Lux Plot Design	
For Whitehorse City Council	Darren Wong, solicitor, Planology	
For Head Transport for Victoria (Department of Transport)	No appearance	
Information
Description of proposal	Use of land as a service station (including ancillary automatic drive-through car wash); Associated buildings and works; Alteration of access to road in the Transport Zone, Schedule 2; erect and display business identification, internally illuminated, electronic and promotion signs and construct buildings and works within four metres of protected trees.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Whitehorse Planning Scheme	
Zone and overlays	Residential Growth Zone – Schedule 2 (RGZ2)	
Permit requirements	Clause 32.07-2 – Use as a service station in a RGZ
Clause 32.07-8 - To construct a building or construct or carry out works for a use in Section 2 of Clause 32.07-2 in an RGZ
Clause 42.03-2 – To construct a building or carry out works within four metres of protected trees 
Clause 52.29-2 – To alter access to a road in a Transport Zone 2
Clause 52.05 – To erect and display business identification, internally illuminated, electronic and promotion signs	
Land Description	The subject site is located on the north-east corner of Whitehorse Road and Nangnak Lane, Mont Albert.  It has a frontage to Whitehorse Road of 45.7 metres, depth to Nangnak Lane of 48.7 metres and site area of 2230 square metres.
The site is vacant and has a fall of approximately 3.9 metres from the front to south-east corner.  It was previously used as a service station until 2019 and contains two crossovers onto Whitehorse Road. 	
	There is an existing un-named lane along the north boundary that is approximately 3 metres wide.
Abutting land uses include four to five storey apartments buildings to the east and west.  To the north are dwellings and units with frontage to George Street that are within a General Residential Zone Schedule 4 (GRZ4).  The rear yards and outbuildings of these dwellings abuts the laneway.
The south side of Whitehorse Road contains two storey townhouses that are partially screened by high brick fencing.	
Tribunal inspection	The Tribunal conducted an unaccompanied site inspection of the subject site and surrounding area prior to the hearing.  A second site inspection was conducted of a similar service station operating in St Kilda after the hearing.	

  Reasons
What is this proceeding about?
1	Box Hill OHP Pty Ltd (the ‘applicant’) applied to Whitehorse City Council (the ‘Council’) for use and development of the land as a service station (including ancillary automatic drive-through car wash) as shown on plans in Figures 1 and 2.  The application includes alteration of access to a road in the Transport Zone Schedule 2 (‘TRZ2’), the erection and display of business identification, internally illuminated, electronic and promotion signs and construct buildings and works within four metres of protected trees.
Figure 1 – Site Plan 

Figure 2 – South Elevation (Whitehorse Road)

2	The proposal includes the following:
•	Automatic car wash and two vacuum bays;
•	Three double sided bowsers under a canopy;
•	Convenience store; (‘control building’);
•	Seven customer car spaces; 
•	Two electric vehicle (‘EV’) charging bays;
•	Reconstruction of one of the two existing crossovers to Whitehorse Road; and
•	Associated business identification signs including an internally illuminated pylon sign (10 square metres), internally illuminated business signs on the canopy, car wash and control building and directional signs.
3	The service station is proposed to operate 24 hours per day, seven days per week and the car wash is to operate 7.00am to 10.00pm, seven days per week.
4	Council refused the application on nine grounds that include the use will have adverse amenity impacts on the nearby residential properties and the proposal is unsympathetic to its built form context.  Other grounds are that the proposal is inconsistent with the purpose and decision guidelines of the Residential Growth Zone 2 (‘RGZ2’), the objectives of Clause 13 (Environmental Risks and Amenity), Clause 15 (Built Environment and Heritage) and Clause 17 (Economic Development).  Council also refused the proposal on grounds that it is contrary to the Local Planning Policy Framework (‘LPPF’) relating to housing policy, economic development, and non-residential uses in residential areas.
5	Council argues that the proposal is an unacceptable planning outcome as the subject site is an inappropriate location for a service station.  It submits that whilst planning policy is neutral regarding a service station in an RGZ, it expresses a strong and unambiguous position to develop the subject site for increased housing densities.  It also considers the use will have unacceptable impacts on the amenity of the area.
6	The applicant argues the use and development appropriately responds to the built form context of the area and is consistent with the purposes and decision guidelines of the GRZ2, State and local policies.  It says this is consistent with Council’s policy of supporting non-residential uses of the land in a residential zone.  It submits there is a need for a service station at this location, which is supported by the evidence of the urban economist, Mr Lee who has conducted an analysis of need and availability of service stations in the local area. It argues, on balance, there will be a net community benefit and any adverse amenity impacts can be addressed through appropriate conditions.
7	Statements of grounds were received from the owners’ corporation of the apartments at 801 Whitehorse Road and a nearby property owner.  They are concerned about noise, light spill from advertising signs, traffic impacts and boundary fencing. 
What are the key issues?
8	Having undertaken an inspection of the subject site, abutting properties, the surrounding area and taking into consideration the submissions regarding the applicable policies and provisions of the Whitehorse Planning Scheme, the key issues arising in this matter are:
•	Does the proposal respond to its zoning and policy context?
•	Is it an appropriate location for a service station?
•	Is there a need for a service station at this location?
•	Will the service station cause unacceptable amenity impacts?
9	Taking into consideration the submissions, evidence, and provisions of the Planning Scheme, I have decided to refuse to grant a planning permit.  I acknowledge the use is permitted in a RGZ2 and the applicant has provided evidence that amenity concerns, such as noise, can be addressed through acoustic fencing and conditions on the operation.  
10	However, prior to assessment of amenity matters, my first task is to assess whether the proposal is consistent with planning policy and vision for the site and wider area.  I am persuaded by Council’s argument that use and development of a service station at this location is contrary to the overall strategic directions for this area which seek to provide for more intense and higher density residential development which will increase housing stock in the municipality.  My reasons follow.
Procedural issues & rulings 
11	After the application for review was lodged, the permit application was amended, through the substitution of amended plans.  The amended proposal includes several changes such as the removal of the drive-through facility and dog wash, increased setbacks, increased landscaping, alterations in building scale and alteration of size and location of the advertising signs.
12	Council did not object to the substitution of the plans, but advised that after considering the amended plans, supporting material and evidence it no longer relies on grounds of refusal relating to advertising signs and the intensity of development due to the conglomeration of the uses on the site.
what is the physical context of the site?
13	The subject site is located on the north side of Whitehorse Road, Mont Albert.  It is vacant but was previously used as a service station that was demolished in 2020.  The physical context of the site is shown in Figure 3.
Figure 3 – Aerial

14	To the east is a five storey apartment building containing 44 apartments at 801 Whitehorse Road.  There are ground floor courtyards in the western setback and the upper level apartments contain habitable room windows and balconies that face the subject site.  West of Nangnak Lane (6 metres wide) is a four to five storey apartment building at 781 Whitehorse Road.  This site contains 65 apartments that are generally orientated to the north and south.  
15	There is a laneway to the north that separates the subject site from dwellings in a General Residential Zone (‘GRZ’).  These comprise single storey dwellings and units in George Street.  The south boundary of the site abuts Whitehorse Road which is within a Transport Zone 2 (‘TZ2’) and contains a tram line.  Further south are two storey town houses that have high fencing and secluded open space in the frontage.
16	Of note, there is an existing 7-Eleven service station and associated convenience store located approximately 300 metres to the east on the corner of Whitehorse and Elgar Roads.
what is the policy context?
17	The subject site is in a RGZ2 which is nominated as a Substantial Change B.  It contains the following purposes:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework. 
•	To provide housing at increased densities in buildings up to and including four storey buildings. 
•	To encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres. 
•	To encourage a scale of development that provides a transition between areas of more intensive use and development and other residential areas. 
•	To ensure residential development achieves design objectives specified in a schedule to this zone. 
•	To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
18	A service station is a Section 2 use as it satisfies the conditions of the zone because the site has access to a TZ2 and has an area of less than 3000 square metres (i.e. 2230 square metres).
19	The site is also affected by a Significant Landscape Overlay Schedule 9 (‘SLO9’).  A permit is required to construct buildings within 4 metres of protected trees.  
20	The applicant and Council identified several policies in the Planning Policy Framework (‘PPF’) that are relevant to this application.  These include Clause 11.03-1S (Activity Centres) and Clause 11.02 (Managing Growth). They also say Clause 13.07 (Amenity, Human Health and Safety) and Clause 17.02 (Commercial) are relevant to my determination.
21	Council identified Clause 16 (Residential Development), and in particular Clause 16.01-1S (Housing Supply), as policies that should be considered in this application.  This policy has an objective to facilitate well-located, integrated, and diverse housing that meets community needs.  It highlighted strategies in the clause, such as encouraging higher density housing development on sites that are well located in relation to jobs, services and public transport and opportunities for increased residential densities to help consolidate urban areas. 
22	Clauses in the LPPF that reiterate state-wide housing policies include 21.04 (Strategic Directions) which identifies the subject site is within a SCA.  This area is described as providing for housing growth with increased densities, around most train stations, adjoining tram routes and around larger activity centres.  In accordance with Clause 21.06 it is policy to support increased residential densities and housing choice in SCA.  This policy states a key housing challenge is to accommodate an additional 12,997 dwellings to house the projected population growth in the municipality to 2036.
23	Council also drew my attention to Clause 22.03 (Residential Development) that contains objectives to recognise that areas of Substantial Change (‘SCA’) and Natural Change (‘NCA’) will make a significant contribution to increases in housing stock and to facilitate development in areas of substantial change.  Strategies for SCA are to encourage flats and apartments and to provide for a variety of dwelling types, including affordable housing.
24	Clause 22.05 (Non-Residential Uses in Residential Areas) is applicable and has objectives to make provision for services and facilities demanded by local communities in a way that does not detract from the amenity of the area.  Of relevance, Clause 22.05-3 states it is policy that non-residential uses are encouraged to be in a location where there is a demonstrable need for the proposed facility or service.  The policy specifically discourages the development of restaurants, hotels, reception rooms and convenience restaurants due to the significant potential for detriment to the amenity of the surrounding residential area.
25	Council advised that Amendment C220 is applicable.  This amendment is seeking to apply a Design and Development Overlay (‘DDO’) on the subject site and other RGZ land along Whitehorse Road and Burwood Highway.  The DDO will only apply to buildings exceeding three storeys and does not apply to this application.
Does the proposal respond to its zoning and policy context?
26	Council argues land in the RGZ is a finite resource and it was strategically identified and zoned in accordance with its housing strategy.  It submits the fundamental and underlying basis for identifying SCA is relieve pressure for higher density development with NCA and Limited Change Areas (‘LCA’).  It says that apartments are only expressly encouraged in SCA as they are designed to make significant contributions to increased housing provision. It submits:
Therefore, redevelopment opportunities within a substantial change area are significant opportunities that should not be squandered. In the context of a residential development, it is important that the opportunity is optimised and in the context of the present case it is critical to prevent the opportunity being wasted or thwarted altogether. Indeed, as recognised in the officer report, the Permit Application ‘does not enable this policy (housing locational policy) to be fulfilled’. In other words, the Permit Application will frustrate and undermine the clear and unambiguous policy outcomes for this part of the municipality to accommodate substantial change and to do the heavy lifting in terms of delivering greater housing supply and diversity and in turn delivering greater housing affordability.
27	The applicant refutes this proposition and argues the Planning Scheme recognises there is a legitimate need for non-residential uses in residential areas to serve the needs of the local community. It says this is found in local policies at Clauses 21.06 and 22.05.  It relies on the evidence of Mr Finlayson and Mr Lee who say the proposal is in accordance with key local policies as the use will meet the demands of the local community, in addition to passing traffic.  
28	Mr Finlayson acknowledges the site is generous in size and could accommodate apartments.  However, he considers the proposal is not at odds with the purposes of the zone given the discretion afforded by the Planning Scheme in limited circumstances specified in the zone controls.  He says the zone anticipates the potential for service stations to be part of the residential context and it is not uncommon for this use to be in residential areas along main roads.  He cited the example of the 7-Eleven service station in Whitehorse Road that is located 300 metres east of the subject site that is within an RGZ.
29	Mr Finlayson says that while planning policy encourages commercial uses within Major Activity Centres (‘MAC’), inflexible application of this principle will ‘fetter the discretion provided by the Planning Scheme and would only allow service stations in defined activity centre boundaries.’  He also considers that the proposal is the type of commercial use that ‘out of centre’ policy at Clause 17.02-2S seeks to discourage as it is not a large anchor type use that might undermine the function of an activity centre.
30	Mr Lee considers redevelopment of the subject site for apartments will have little effect on resolving the challenge of house growth sought in the Planning Scheme.  He estimates the subject site could accommodate approximately 60 apartments, based on the yields of the adjoining lots. He considers this number is as ‘insignificant’ as it is 0.5% of the housing target in the Planning Scheme or 0.4% of the projected increase in dwellings in the municipality by 2036.  He states:
The community benefit associated with retaining the subject site for housing development is, in my opinion, of little economic value given the minor contribution to the housing challenge. Much more significant development is likely to occur as high density development within Box Hill MAC or infill development across the municipality.
31	Council refutes Mr Lee’s proposition and argues the loss of 0.5% of expected delivery of new dwellings is not insignificant, but material.  It says the loss of approximately 60 dwellings means that there is a need to deliver this housing in the adjoining NCA and LCA.  It submits it is a lost opportunity to provide housing diversity that meets the objectives of the Planning Scheme for housing within walking distance of a MAC and a range of public transport options.  It considers the subject site provides a rare, consolidated parcel that can achieve increased densities in an appropriate strategic location.  It says this loss should not be disregarded as it will have a cumulative impact that will result in a gradual erosion of critical policy outcomes in the Planning Scheme.
32	Council also referred me to Jasbe Frankston Pty Ltd v Frankston (‘Jaspe’) and Mermac Properties Pty Ltd v Greater Bendigo CC (‘Mermac’) where the Tribunal affirmed Council’s decision to refuse applications for use and development of a service station on strategic grounds.  The applicant considers these decisions are not relevant as the sites also were affected by additional Design and Development Overlay (‘DDO’) controls.
33	The applicant referred to cases where the Tribunal has supported a needs-based analysis for non-residential uses in residential areas.  These include the helipad case, Alfred Hospital v City of Melbourne (‘Alfred Hospital’), Tulcany Pty Ltd v Knox CC (‘Tulcany’) and Trustees of the Ukranian Catholic Church in Australia v Melbourne CC (‘Ukranian’).  In these decisions, the Tribunal determined that the net community benefit of the particular use outweighed amenity impacts in the local area and the strategic imperatives of the Planning Scheme.
Tribunal findings
34	As with Jaspe, this is also a policy case.  The task before me is to determine how policy should be applied to the site and how the site should be developed.  I note that Jaspe referred to the operation of the local planning policies outlined in Clause 23.03 in the Planning Scheme that is also relevant in this case.  It states:
A Local Planning Policy is a policy statement of intent or expectation. It states what the responsible authority will do in specified circumstances or the responsible authority’s expectation of what should happen. A Local Planning Policy gives the responsible authority an opportunity to state its view of a planning issue and its intentions for an area. A Local Planning Policy provides guidance to decision making on a day to day basis. It can help the community to understand how the responsible authority will consider a proposal. The consistent application of policy over time should achieve a desired outcome.
35	I also note the purposes of the Planning Scheme are ‘to provide a clear and consistent framework within which decisions about the use and development of land  can be made’. 
36	I acknowledge the sixth purpose of the RGZ is to allow for a limited range of non-residential uses to serve the local community in appropriate locations.  I agree with the applicant that non-residential uses, such as petrol stations, are a common occurrence in residential areas along main roads. I also accept that Mr Lee’s needs-based and fuel demand analysis demonstrates the use will service the needs of the local community, as well as passing traffic.  I will discuss these matters further below in my findings.  
37	However, I question whether the need for a service station outweighs the net community benefit of providing additional housing in a location that has excellent access to services and public transport and is near the Box Hill MAC.  I accept Council’s argument that this is the clear vision of their policies.
38	I find zone purposes and local policies, such as Clause 22.03 (Residential Development), clearly state what Council’s intentions are for this area.  I find Mr Lees’ analysis and views, through an urban economic lens, primarily focuses on the present and near future.  Whilst I acknowledge a new service station will benefit customers who may live in the local area, the proposal is inconsistent with the longer term policy vision in the Planning Scheme.  
39	I acknowledge the proposal may satisfy many of the criteria in Clause 22.05 (Non-Residential Uses in Residential Area Policy).  However, when taking a wholistic view of all the purposes in the RGZ and policies in the Planning Scheme, I find the benefits to the local community associated with obtaining fuel, convenience goods and a car wash nearby do not outweigh those associated with increased residential development at this location.
40	I am persuaded by Council’s arguments that this is a lost opportunity to provide additional housing in an area that Council has earmarked for higher density residential development.  I disagree with Mr Lee that the possible development of approximately 60 dwellings, or 0.5% of the expected delivery of new dwellings, is insignificant, particularly given there are limited areas within in the municipality zoned RGZ.  Whilst substantial apartment buildings have been built in the Box Hill MAC, the Planning Scheme also identifies RGZ as areas where increased densities are encouraged.
41	I have read the decisions supplied by Council and the applicant.  Council’s examples relate to use and development of a service station in areas where the Council has identified a different strategic vision for the site, which was subsequently supported by the Tribunal.  The applicant has not persuaded me that its cases relating to need associated with a helipad and child-care centre are comparable to justify a significant departure from the strategic vision in the Planning Scheme.
Is this an appropriate location for a Service station?
42	Clause 22.05-3 contains locational criteria for non-residential uses such as being in convenient walking distance of shopping centres, corner sites and sites abutting a main road. 
43	Council identified the following favourable characteristics of the subject site for apartment development whilst Mr Finlayson also identified the same features makes the site a suitable location for a service station.  These include:
•	It is a large consolidated parcel of land;
•	The site abuts Whitehorse Road, which is an arterial road;
•	There are already two existing crossovers to Whitehorse Road which could be used for access into the subject site;
•	The site is within walking distance of the Box Hill Major Activity Centre (‘Box Hill MAC’);
•	The site is not in a heritage overlay, subject to flooding or neighbourhood character overlay;
•	The site has an interface with a laneway to the west and north which provides visual separation to the existing residential properties; and
•	The site is not located in a traditional residential hinterland as it abuts robust four to five storey apartments to the east and west.
44	Council also says the site has excellent access to public transport with tram and bus services directly in front of the site and train services a short distance away. It accepts the site is located on an arterial road, which is preferred in Clause 22.05-3, but questions whether it is on a corner given it abuts Nangnak Lane.  It considers the site is mid-block rather than a corner site, which is contemplated in policy.
45	The applicant relies on the evidence of Mr Finlayson.  He considers there are good town planning reasons why service stations should not be in core retail areas.  He says they cause disruption to active retail facades and zero lot setbacks, and create the potential for pedestrian conflict. He also considers there are locational benefits as the subject site is on a highly accessible main road and is not reliant on access via a local access street.  
46	Mr Finlayson commented that all non-residential uses have different characteristics and locational needs.  He says none of the policy objectives in Clause 22.05 apply to service stations and the locational criteria should be sensibly applied in the context of the specific use and its scale and intensity.  
47	He considers use of the site as a service station at this location is appropriate in the context of the zone and Clause 22.05.  He says the proposal will not create a concentration of non-residential uses nor isolate residential properties between non-residential uses.  He says the location is appropriate adjacent to the role and function of the main road and the use is not well suited within a MAC.  He also notes the site is on a corner and the use is not one specifically discouraged (i.e. restaurant, hotel, reception room or convenience restaurant) in Clause 22.05. 
48	Mr Lee says there are no other sites in the RGZ that are suitable for a service station nearby and this site provides a unique opportunity given its locational attributes and size.  He also considers that there is little or no likelihood that a new service station could be developed in the Box Hill MAC given the underlying land values and land expectations.
Tribunal findings
49	I acknowledge the proposal meets many of the policy objectives of Clause 22.05 as it is located on a main road and will not result in a concentration of non-residential uses in this part of Mont Albert.  I agree with the applicant the subject site has many locational attributes that makes it suitable for a service station, including abuttal to two laneways that provide a separation to existing residential uses to the north, east and west.  
50	I disagree with Mr Lee that I should take into consideration that there are very few, if any alternative sites that could accommodate a service station nearby.  Whilst there are currently limited or no vacant commercial and industrial sites of this size nearby, this may change in the future.  I agree with Council that land within the RGZ is a finite resource that has been identified as an area for substantial change, with the express intention of encouraging apartment buildings. 
51	For the record, I am not persuaded by Council’s argument that the subject site is not a corner allotment as Clause 22.05 does not exclude a named laneway as a corner site.
Is there a need for a service station at this location?
52	The sixth purpose of the RGZ is to allow for a limited range of other non-residential uses to serve local community needs in appropriate locations.  Clause 22.05-3 also refers to need as it states it is policy that non-residential uses are encouraged to be in a location where there is a demonstrable need for the proposed facility or service.
53	Council does not accept that the proposal will materially serve the needs of the local community.  It accepts that some members of the local community may be served by the use but:
given the characteristics of a service station use, namely, to primarily attract passing traffic and in turn to prefer highway locations, the use is primarily aimed at servicing the traffic using the arterial road network along Whitehorse Road. This is not primarily local traffic but is regional traffic passing through Mont Albert from one place to another.
54	Council’s Delegate Report acknowledged that whilst there may be a market demand for more service stations in this area, there is an existing 7-Eleven very close to the site to the east that can service the fuel demands of the community in this area.  The applicant relies on the evidence of Mr Lee who disagrees that this is a relevant factor and notes:
An important consideration in such cases is that local communities should not be deprived of having a range of similar facilities that they might choose to frequent, with their choices about where they purchase fuel and convenience goods (in this case) guided by decisions with respect to factors such as brand preference, ease of access, range of products, prices, customer service and other attributes of each facility.
55	Mr Lee considers that the 7- Eleven in Whitehorse Road fails to provide a very convenient alternative for fuel purchase for many in the surrounding area given the limitations of accessing the site on the corner of a road that contains a tram line. 
56	The applicant argues Clause 21.06 (Housing Policy) and Clause 22.05 recognise there is a legitimate need for non-residential uses in residential areas to serve the needs of the local community.  It relies on the evidence of Mr Lee who says there is a demonstrable need for the use to serve the demands of the community, in addition to passing traffic.  
57	Mr Lee provided evidence using a provision rate approach.  This method examined whether the supply of service stations is at a level that indicates a need for an additional facility.  His market-based approach concluded there is a significant undersupply of service stations to meet the needs of the local community living within the catchment.  He considers that given the extent of undersupply, further service stations could be accommodated in addition to this proposal.
58	He also conducted a fuel demand analysis that factored in trends such as declining car ownership, increased electric vehicle use and lower average household size.  This analysis showed there is strong support in the catchment for additional service stations.
Tribunal findings
59	The RGZ does not unconditionally allow non-residential uses to establish within the zone, but it expressly requires such uses serve the local community in appropriate locations.
60	I accept that Mr Lee’s evidence demonstrates that there is a market need for a service station, which could be satisfied on the subject site.  However, he acknowledges a substantial share of customers would also be ‘passing trade’ travelling along Whitehorse Road who may live outside the catchment.  Conversely, the local community can also purchase fuel at the existing service stations nearby or outside the municipality during their daily activities.  
61	I find Mr Lee’s analysis does not lead me to the conclusion that departure from the housing policy objectives for increased residential densities at this location is warranted for the reasons discussed above.  
Will the service station cause unacceptable amenity impacts?
62	The application proposes operation of the service station 24/7 and the car wash until 10.00pm.
63	The decision guidelines for non-residential uses in RGZ require consideration of whether the use or development is compatible with residential use.  This includes the scale and intensity of the proposal and the amenity effects of traffic generated by the proposal.  This is reiterated in Clause 22.05-3 that contains a policy to discourage non-residential uses if they will cause nuisance to nearby residential properties by way of noise, traffic, lighting, or loss of security. 
64	Council submits the intensity of the use a 24-hour service station on a basis is problematic.  It says the land abuts existing multi-storey apartments to the east and west and more traditional residential development to the north. Whilst it acknowledges various aspects of the use could be controlled by permit conditions, such as restricted hours of operation and sound attenuation measures, other amenity impacts cannot be controlled.  It submits the way vehicles enter and exit the site and the behaviour of people, particularly at night, cannot be controlled. It accepts that Nangnak Lane and the laneway to the north provide some physical separation to existing dwellings, but it is unlikely to reduce noise from these types of occurrences.
65	The applicant relies on the evidence of Messers Finlayson, Graham and Tardio in support of its argument that amenity impacts can be managed.  Mr Finlayson considers the use can operate at a scale and intensity that is acceptable in this residential context.  He considers the amenity impacts can be reasonably limited as the site does not directly abut a GRZ1 due to the laneway interface.  
66	Mr Tardio is an acoustic engineer who provided recommendations to ensure noise emissions comply with relevant noise protocols.  These include provision of acoustic screening of the roof plant, provision of acoustic boundary fencing, operation of the car wash and deliveries between the hours of 7.00am-10.00pm and waste collection occurring only between 7.00am-6.00pm Monday to Friday.  He also recommended that noise testing be undertaken within one month of commencement of the use to confirm compliance with the noise protocols.  
67	Council commissioned an independent review of the acoustic report submitted with the original application.  Mr Tardio disagreed with the findings of this review that concluded the use would introduce occasional high levels of noise that have the potential to cause sleep disturbance.  He says that their recommendations assume that anti-social behaviour will occur on the site from customers of the service station.
68	The applicant also tabled evidence from Mr Graham who is a lighting engineer.  His evidence was not challenged by Council who agreed that light spill could be addressed by permit condition.
69	Council submits that even if the evidence of Mr Graham and Mr Tardio is accepted, it is not the determinative question.  It says amenity impacts are broader than those assessed by the applicant’s experts and amenity should be considered cumulatively, as it best represents the human experience.
Tribunal findings
70	The decision guidelines for the RGZ and Clause 22.05 require consideration of the scale and intensity of non-residential uses in residential zones.  Clause 22.05 discourages uses that will cause nuisance to nearby residential properties.
71	I have not affirmed Council’s decision based on potential amenity impacts on nearby residential properties.  I acknowledge that as the subject site is located on a main road, there is already traffic noise that would impact the amenity of nearby dwellings and apartments.  I accept the evidence of Mr Tardio that conditions could be included on the permit to ensure noise emissions are controlled from the subject site.  This includes acoustic fencing, restricted hours of operation and noise testing.
72	I consider that other amenity impacts such as light spill, odour and litter could be dealt with by permit condition.
73	For the sake of completeness, I am not persuaded by Council’s concerns about anti-social behaviour causing sleep disturbance.  I agree with Mr Tardio that potential for ‘hoon’ behaviour from service stations is low given similar events could occur on public land and any event would be infrequent. 
Are there any other issues?
74	Several other matters were raised including landscaping, built form and advertising signs. As I have decided that the proposed use and development fails because of policy, I do not find it necessary to consider these issues in any detail.  However, I offer the following comments.
Built Form
75	The design and layout of the service station and car wash will represent an appropriate built form outcome to the public realm and will respect its residential context.  This is due to the following factors:
•	The convenience store building is set back 5.5 metres from the frontage and matches the adjoining apartments to the east;
•	The convenience store has a maximum height of 7 metres and the petrol canopy 6.21 metres.  These heights will not overwhelm nearby residential properties;
•	The buildings adopt a contemporary design and use materials and finishes such as brick, render, weatherboard which are found nearby;
•	Retaining walls including landscaping to soften their visual impact;
•	The crossover widths will be reduced by approximately 3 metres; and 
•	Landscaping is provided along the frontage and all side boundaries.
Landscaping
76	In response to the landscape plan and evidence prepared by Mr Patrick, Council advised that it is acceptable subject to further minor changes that could have been addressed by permit condition.
Traffic
77	The applicant tabled traffic evidence prepared by Mr Turnball.  Council did not raise any issues regarding the proposed access arrangements, nor did it context any changes recommended by Mr Turnball.
  Advertising Signs
78	The application includes a range of advertising signs to identify the service station in Whitehorse Road.  This includes a pylon sign along the frontage and various internally illuminated signs on the convenience store and fuel canopy.  
79	I am satisfied the proposal meets the provisions of Clause 52.05 (Advertising Signs) and objectives of Clause 22.02 (Visual Amenity and Advertising Signs) for residential areas.  I have come to this conclusion as:
•	the signs are separated to reduce clutter;
•	the signs are integrated with the buildings, fuel canopy and car wash;
•	will not impede views of existing signs;
•	the pylon sign has been reduced in size to 10 square metres with a maximum height of 5 metres;  
•	the pylon sign is set back 30 metres from the adjoining apartments at 801 Whitehorse Road;
•	the extent of signage is not excessive for a sign on a main road; and 
•	the signage will not dominate the skyline.
Conclusion
80	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Jane Tait
Member