VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1655/2023
Permit Application no.PA2022/8164/1 	
CATCHWORDS	
Melton Planning Scheme; use of land in the Green Wedge Zone for a Place of worship; land use conflicts in a Green Wedge Zone; the Western Plains South Green Wedge Management Plan (Melton City Council, February 2024).	

Applicant	Mierafe Kidusan Abune Tekele Haymanot Ethiopian Orthodox Tewahedo Church Melbourne Incorporated	

Responsible Authority	Melton City Council	
Respondent	Richard John Hooper	
Respondent	Corinne Galea, Lauren Gatt & Others	

SUBJECT LAND	743-747 Ferris Road
STRATHTULLOH VIC 3338	

HEARING TYPE	Hearing	

DATE OF HEARING	9, 10 & 11 September 2024	

DATE OF ORDER	25 September 2024	

CITATION	Mierafe Kidusan Abune Tekele Haymanot Ethiopian Orthodox Tewahedo Church Melbourne Incorporated v Melton CC [2024] VCAT 915	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	V Coleiro	
•	Drawing numbers:	Sheets 1, 4 and 6-9 of 9	
•	Dated:	1 August 2024 (Revision C) 	
2	In application P1655/2023 the decision of the responsible authority is affirmed.
3	In planning permit application PA2022/8164/1 no permit is granted.

Michael Deidun
Member			
Appearances
For applicant	Tiphanie Acreman and Tara Hooper, Barristers instructed by Yabio lawyers
They called the following witnesses:
•	Alison Milner, Town Planner of Milner Planning Advisory
•	Charmaine Dunstan, Traffic Engineer of Traffix Group
•	Thomas Evans, Acoustic Engineer of Resonate Consultants	
For responsible authority	Amara Coleman, solicitor of Harwood Andrews 	
For respondents	Corinne Galea appeared in person and on behalf of the joint respondents

There was no appearance by or on behalf of Richard Hooper	

Information
Description of proposal	The use and development of the land for a place of worship	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Melton Planning Scheme	
Zone and overlays	Green Wedge Zone	
Permit requirements	Clause 35.04-1 to use land within the Green Wedge Zone for a place of worship 
Clause 35.04-5 to construct a building and construct or carry out works on land within the Green Wedge Zone, associated with a Section 2 use under the zone, and/or within 100 metres of a dwelling not in the same ownership
Clause 52.17 to remove, destroy or lop native vegetation	
Relevant scheme policies and provisions	Clauses 02, 11, 12, 13, 14, 15, 18, 19, 35.04, 51.02, 52.06, 52.17, 65 and 71.02.	
Land description	The land is a rectangular shaped allotment, with a frontage to Ferris Road of 97.58 metres, a depth of 210.08 metres, and an overall area of 20,499 square metres.  The land presently supports a single storey detached dwelling, and a number of outbuildings.	
Tribunal inspection	The Tribunal inspected the site and surrounding area prior to the hearing, on 28 August 2024.	

  Reasons
What is this proceeding about?
1	Mierafe Kidusan Abune Tekele Haymanot Ethiopian Orthodox Tewahedo Church Melbourne Incorporated (the ‘applicant’) seeks to review the decision of the Melton City Council (the ‘Council’) to refuse to grant a planning permit for the use and development of a Place of worship on land at 743-747 Ferris Road, Strathtulloh (the ‘review site’).
2	The Council’s grounds of refusal raise concerns in relation to the suitability of the proposed use and development to both the Green Wedge Zone, and the physical context of the review site, the potential amenity impacts on neighbouring properties, and the level of compliance with a range of planning policy.
3	The proposal is also opposed by a large number of nearby residents, some of which have become parties to the proceeding (the ‘respondents’).  Collectively, in addition to the concerns identified by Council, the nearby residents raise concerns relating to traffic and car parking impacts, and the potential future growth of the proposed use and development.
4	Prior to the hearing, the applicant made a number of efforts to amend the plans that are subject to this proceeding.  Those efforts include the following:
a.	By email dated 26 July 2024, the applicant circulated amended plans to the Tribunal and all parties.  The amended plans were accompanied by a Statement of changes that identified the following changes to the plans.
•	Reduction in size of place of worship.  The total area has been decreased by 23.79%, from 629.8 square metres to 480 square metres.
•	As a consequence, Increased front setback, setback to southern property boundary and proposed car parking area.
•	The building’s highest elevation has been lowered to 4895mm, matching the elevation of the current garage.
•	All domes have been removed from the design.
•	Sandstone blockwork removed
b.	By email dated 1 August 2024 the applicant circulated corrected plans, as well as a covering letter that contained the following advice.
Upon reviewing the Revised Plans, following issues have also been identified and addressed in the attached plans: 
•	TP03 (Proposed Site Conditions Plan) – the front setback indicated on this sheet is correct (71300mm) and this is the same setback as was proposed in the application plans. However, the proposed building was not placed on this plan in alignment with the setback. This has been corrected and reflects the placement of the building on the now redundant TP03a. 
•	TP03a (Proposed Part Site Conditions Plan) – remove as redundant. 
•	TP05 (Proposed Place of Worship Floor Plan) – the proposed addition area calculations show figures for the applicant plans. Corrected to show proposed addition area calculations for the revised proposal. Also corrected to show yellow highlights layer for the addition. 
•	TP07 (Neighbourhood and Site Description Plan) – updated to reflect the updated site plan on TP03. 
•	The “revised dated” did not reflect revision of the plans but has now been updated. 
•	Red clouding was not included in the Revised Plans but has now been included. 
c.	By email dated 23 August 2024 the applicant circulated expert evidence in the proceeding.  Attached to the planning evidence of Ms Milner is a Landscape Masterplan prepared by Perry Mills & Associates.  The attachment of a landscape plan to this evidence is curious, given that Ms Milner is not responsible for the preparation of the landscape plan, and is not giving landscape evidence.  The Landscape Masterplan makes changes to the layout of the proposal, including to access roads and car parking.
d.	Attached to the traffic and car parking evidence of Ms Dunstan are further amended plans, that reduce the number of car parking spaces, amend the car parking and access layout (in a different manner to that depicted in the landscape plan), and provide an additional informal parking area on the review site.
e.	Unfortunately there has been no coordination between the plans attached to the evidence of Ms Milner and Ms Dunstan respectively, in that they depict very different layouts to the accessway on the review site, and more minor differences to the car parking area.  The plans attached to Ms Dunstan’s evidence does not provide for the extent of landscaping now proposed in the front setback of the review site.  The plans attached to Ms Milner’s evidence does not provide for two way vehicle movements for the entire length of the accessway as sought by Ms Dunstan, and the alignment has not been checked by Ms Dunstan in relation to swept paths for simultaneous two way vehicle movement.  It is the evidence of Ms Dunstan that the curved alignment of the accessway depicted in the landscape plan may need to be straightened out, again potentially impacting the landscape outcome.
5	My decision is properly based on the plans that were substituted at the commencement of the proceeding, but with regard to the recommendations contained in the expert evidence filed in the proceeding.
6	The issues or questions for determination are:
a.	Is the proposed use appropriate for the review site?
b.	Is the proposed development an appropriate response to the surrounding context?
c.	Will there be any unreasonable off-site amenity impacts?
d.	Does the proposal appropriately provide for car parking and traffic movements?
e.	Is the proposed removal of native vegetation appropriate?
7	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Melton Planning Scheme, I have decided to affirm the Council’s decision, and direct that no planning permit be granted.  My reasons follow.
Is the proposed use appropriate for the review site?
8	The applicant proposes the use of the land for a Place of worship.  Under the provisions of the Green Wedge Zone, such a land use is a Section 2 use.  The following purposes and decision guidelines apply under the provisions of the Green Wedge Zone.
Purpose
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide for the use of land for agriculture.
To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.
To encourage use and development that is consistent with sustainable land management practices.
To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.
To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.
To protect and enhance the biodiversity of the area.
Decision guidelines
Before deciding on an application to use or subdivide land, lease or license a portion of a lot for a period of more than 10 years if the portion is to be leased or licensed for the purpose of Accommodation, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
General issues
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	Any Regional Catchment Strategy and associated plan applying to the land.
•	The capability of the land to accommodate the proposed use or development.
•	How the use or development relates to rural land use, rural diversification, natural resource management, natural or cultural heritage management, recreation or tourism.
•	Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining land uses.
•	Whether the use or development is essential to the health, safety or well-being of the State or area but is not appropriate to locate in an urban area because of the effect it may have on existing or proposed urban areas or the effect that existing or proposed urban areas may have on the proposed use or development.
•	…
Rural issues
•	…
•	The potential for the future expansion of the use or development and the impact of this on adjoining and nearby agriculture and other land uses.
9	These decision guidelines raise issues that are of importance in the context of this proceeding.  They include the compatibility of the proposal with adjoining land uses, and the potential for future expansion of the use and the impact this will have on other nearby land uses.  This last decision guideline is particularly relevant given the nature of the permissions sought, and the potential for expansion of the land use on the review site.  I will expand on this issue later in these reasons.
10	Each of the first purpose and the first decision guideline quoted above refer to the policy framework, which in the case of the Melton Planning Scheme, provides a range of guidance for this land within the Green Wedge Zone.  From the range of available policy guidance, I have identified the following three key policy themes that are relevant to this proceeding.
11	The first key policy theme that is relevant to this proceeding is the guidance that is provided to land within the Green Wedge Zone.  Clause 02.03-1 Settlement of the Melton Planning Scheme creates the following policies for non-urban land within the municipality, including land within the Green Wedge Zone.
Non-urban land is significant in providing a buffer between Melbourne’s urban land and the rural hinterland. These areas play an important role in protecting habitat and preserving the natural landscape character. 
A mix of rural living and farming activities take place in these areas and there is a trend towards viticulture and more intensive agricultural activities. The proximity of non-urban land to the urban interface raises challenges including rural residential type living, increased land prices and land use conflict. These make agriculture challenging and contribute to pressure for subdivision or rezoning of land. Pressure to establish urban uses in these areas and to provide infrastructure present additional planning challenges. 
Planning for non-urban land seeks to:
•	Protect the natural and cultural values of non-urban land. 
•	Support sustainable agricultural activities. 
•	Protect non-urban land from development that increases land fragmentation and land use conflicts. 
12	This policy is supported by that found at Clause 11.01-1L-01 Non-urban land.
Strategies
Design the subdivision of land adjoining green wedge areas to provide a transition in subdivision sizes to reduce the hard-urban edge interface.
Plan the interfaces between urban and rural areas to minimise land use conflict.
Protect non-urban areas from urban development incursion to reinforce the need for urban development to be contained within the Urban Growth Boundary.
Support the planting and maintenance of windbreaks and tree lines.
13	While the respondents also rely on policies at Clauses 14.01-1S and 14.01-1R that seek to avoid the loss of productive agricultural land, the proposed Place of worship is to be located on a part of the review site that is not presently used for agricultural purposes.  Further, it has not been demonstrated that the proposed use or development will impact any agricultural production on surrounding land.  For these reasons, I do not regard these policies as being relevant to my decision making task.  
14	Policy at Clause 11.01-1R Green Wedges – Metropolitan Melbourne is set out below.
Objective
To protect the green wedges of Metropolitan Melbourne from inappropriate development.
Strategies
Promote and encourage the key features and related values of each green wedge area.
Support development in the green wedge that provides for environmental, economic and social benefits.
Consolidate new residential development in existing settlements and in locations where planned services are available and green wedge values are protected.
Plan and protect major state infrastructure and resource assets, such as airports and ports with their associated access corridors, water supply dams, water catchments and waste management and recycling facilities.
Protect important productive agricultural areas such as Werribee South, the Maribyrnong River flats, the Yarra Valley, Westernport and the Mornington Peninsula.
Support existing and potential agribusiness activities, forestry, food production and tourism.
Protect areas of environmental, landscape and scenic value such as biodiversity assets, national and state parks, Ramsar wetlands and coastal areas.
Protect significant resources of stone, sand and other mineral resources for extraction purposes.
Provide opportunities for renewable energy generation.
15	This policy creates what could be considered to be competing objectives of promoting and encouraging the key features and values of each Green Wedge Area, and supporting development that provides for environment, economic and social benefits.  The balance to be achieved can sometimes be gleaned from the Management Plan that is to be prepared and adopted for each Green Wedge area.
16	At its meeting of 26 February 2024, the Melton City Council adopted the Western Plains South Green Wedge Management Plan (Melton City Council, February 2024).  A planning scheme amendment has not yet commenced, to introduce the Management Plan into the Melton Planning Scheme.  The preparation of Management Plans for each of the green wedges within the Melbourne Metropolitan area was introduced as part of Melbourne 2030, is required by s46AE(1) of the Planning and Environment Act 1987, and is guided by the Planning Practice Note No.31, June 2015: Preparing a Green Wedge Management Plan.  
17	The Western Plains South Green Wedge Management Plan (Melton City Council, February 2024) provides the following vision.
The Vision
Development and infrastructure will be carefully located to provide a clear break from urban development and minimise impacts on the landscape and environmental values of the area, protecting the long views and rare biodiversity unique to the Western Volcanic Plain, with sensible and sustainable use of resources, infrastructure, and roads.
Council will support actions to protect biodiversity and improve land management outcomes and environmental values in partnership with landowners and community groups, while both cultural heritage and built form heritage will continue to be celebrated and protected.
A range of uses will continue to be supported across the varied precincts of the area, including rural living in existing areas, agriculture, water infrastructure, tourism and heritage. Council will continue to advocate for and support appropriate policy changes to address the issues that arise across the area including protecting agricultural land, reducing land speculation near the urban fringe, and advocating for the community in major projects.
18	The Western Plains South Green Wedge Management Plan (Melton City Council, February 2024) identifies a number of key themes, including the following.
Infrastructure and Land Use
Infrastructure will be designed to minimise impacts on the landscape, roads, and rural amenity while supporting economic activity and links to markets. Inappropriate urban land uses will be discouraged, and discretionary uses only supported if they are consistent with the purpose of the Green Wedge and their impacts can be managed. Low impact tourism with a clear connection to the Green Wedge and community benefits will be encouraged.
19	The Western Plains South Green Wedge Management Plan (Melton City Council, February 2024) also provides the following guidance in relation to the use of land for a Place of worship.
COMMUNITY INFRASTRUCTURE – SCHOOLS AND PLACES OF WORSHIP
There is increasing pressure from schools seeking to use affordable rural land in the Green Wedge for campuses, primarily for urban students.
Council is not the responsible authority for new public and private school proposals under clause 72.01 and is only referred proposals as a third party. There are no technical details that would prevent Council from being able to adequately assess such applications if it were to be the responsible authority. Clause 53.19 also exempts any school permit applications from objector appeal rights.
While schools are an essential basic element of community infrastructure, proper consideration is currently not being given to whether school campuses primarily serving urban students are appropriate in the Green Wedge, and whether they should instead be encouraged to be located within the urban growth boundary. These campuses are a large urban intrusion in the landscape, lead to student commuting being longer and vehicle dependent, put significant traffic on rural roads, and have significant potential noise, traffic, and amenity impacts. This also represents a transfer of costs to Council and ratepayers for necessary infrastructure works.
Similarly, place of worship proposals are frequently lodged which are intended to primarily serve a large urban population, often with heavy traffic, noise and amenity impacts which can be highly inappropriate for the area and the local rural roads.
20	Finally, under the Western Plains South Green Wedge Management Plan (Melton City Council, February 2024), the review site falls within Precinct 4 – Strathtulloh, which is described in the following manner.
Strathtulloh Estate is a subdivision that was approved prior to the introduction of the new format planning schemes in 1997. It provides a unique rural living area, close to the urban areas retaining the attraction of a rural living location. The Estate comprises 115 lots between 1.5 to 15 hectares in size including five vacant lots at the time of writing this plan. Approximately 90% of lots are less than four hectares in size. The GWZ schedule applying to the precinct has a minimum lot size for subdivision of 12 hectares.
Strathtulloh Estate is largely developed and features established gardens, scattered native vegetation and an informal road network with reticulated water…
In summary, Strathtulloh Estate will continue to provide a rural lifestyle option and act as a transitional buffer between the larger Green Wedge lots to the south and urban development to the north. While there are some larger undeveloped lots near Mount Cottrell Road, almost all other lots are developed with limited potential to accommodate additional housing.
21	From these sections of the Western Plains South Green Wedge Management Plan (Melton City Council, February 2024), we can gain the following guidance:
a.	Inappropriate land uses will be discouraged;
b.	Discretionary uses will be supported if they are consistent with the purposes of the Green Wedge Zone, and their impacts can be managed;
c.	Proposals for Places of worship can have traffic, noise and amenity impacts which are highly inappropriate; and,
d.	The Strathtulloh Estate is identified as a unique rural living area, that will continue to provide a rural lifestyle option.
22	Clause 51.02 Metropolitan Green Wedge Land: Core Planning Provisions is also relevant and provides the following purposes.
Purpose 
To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource or recreation values. 
To protect productive agricultural land from incompatible uses and development. 
To ensure that the scale of use is compatible with the non-urban character of metropolitan green wedge land. 
To encourage the location of urban activities in urban areas. 
…
23	The second key policy theme that is relevant to this proceeding revolves around the desire to avoid land use conflicts.  This is reflected in the following policy at Clause 13.07-1S Land use compatibility.
Objective
To protect community amenity, human health and safety while facilitating appropriate commercial, industrial, infrastructure or other uses with potential adverse off-site impacts.
Strategies
•	Ensure that use or development of land is compatible with adjoining and nearby land uses
•	Avoid locating incompatible uses in areas that may be impacted by adverse off-site impacts from commercial, industrial and other uses.
•	Avoid or otherwise minimise adverse off-site impacts from commercial, industrial and other uses through land use separation, siting, building design and operational measures.
•	Protect commercial, industrial and other employment generating uses from encroachment by use or development that would compromise the ability of those uses to function safely and effectively.
24	This policy is relevant as I need to consider the extent to which the proposed Place of worship will create a land use conflict with the surrounding rural residential land uses.
25	The third key policy theme that is relevant to this proceeding is one that supports the provision of infrastructure such as a Place of worship.  Policy at Clause 19.02-4S Social and cultural infrastructure sets out the following.
Objective
To provide fairer distribution of and access to, social and cultural infrastructure.
Strategies
Identify and address gaps and deficiencies in social and cultural infrastructure, including additional regionally significant cultural and sporting facilities.
Encourage the location of social and cultural infrastructure in activity centres.
Ensure social infrastructure is designed to be accessible.
Ensure social infrastructure in growth areas, is delivered early in the development process and in the right locations.
…
26	The encouragement for social and cultural infrastructure to be located in activity centres is noted, however it is recognised that the extent of land demanded by some Places of worship makes location within activity centres impractical.
27	The applicant submits that the proposal is an appropriate use of the review site, for the following reasons:
a.	A Place of worship is an unconditional Section 2 use in a Green Wedge Zone (GWZ), therefore it is implied that in some circumstances a place of worship in a GWZ is acceptable.
b.	A Place of worship is not an inherently urban use, noting that the need for a Place of worship also exists in regional and rural locations.
c.	There is an identifiable community need for this Place of worship, to service the congregation of the Ethiopian Orthodox Church that currently reside in the local Melton area.  The proposal will provide a more equitable distribution of and access to social and cultural infrastructure.
d.	The proposal will not impact the use of the balance of the site for sustainable agriculture.
e.	The review site is located within 100 metres of the Urban Growth Boundary, and is therefore in a location where the broader character and mix of uses will experience change.
f.	Ferris Street in front of the review site will eventually provide direct connection to the urban area to the north, and will function as a busier and higher order road, than presently is the case.
28	Planning evidence was provided by Ms Milner.  It is the evidence of Ms Milner that the review site is in a location in the GWZ that supports a use such as this, noting that the review site:
•	is strategically located in the immediate vicinity of the UGB and the existing and emerging planned urban area;
•	adjoins and will benefit from direct access to the urban area via an extension and connection of Ferris Road planned as part of the integrated development of the adjoining growth area within the neighbouring Toolern Precinct;
•	is not located in an area subject to a Bushfire Management Overlay or high bushfire risk; and
•	is strategically acknowledged and expected by Melton City Council to continue to form part of a ‘transitional buffer’ area between the urban area and larger green wedge lots to the south of the Strathtulloh Estate.
29	Ms Milner’s evidence also reiterates the relative small size of the proposed Place of worship, at a maximum of 50 people, and observes that the proposal will be confined to the existing ‘domestic zone’ of the existing rural residential property.  Finally, it is the evidence of Ms Milner that the proposal would not result in any land use conflict, for the following reasons.
•	The proposed scale and form of the place of worship building has been refined and reduced so that in the rural residential setting it would:
•	Be relatively unobtrusive and benign in appearance.
•	Share a range of comparable attributes to other buildings in the proximate locality, including in terms of building footprint, scale and form.
•	Not be easily discerned as a place of worship.
•	All Church services and religious activities would be conducted inside the proposed building.
•	The number of proposed late night / overnight Church services would be infrequent and limited to 5 per year.
•	The proposed hours of use would include some limited weekday services but would be predominantly limited to Sunday services between 6:00am and 2:00pm, with the ‘spread’ and number of people in attendance at the Site typically significantly reducing across the early and later hours of the proposed use to support ‘set up’ and ‘pack up’ activities.
•	The proposed size of the congregation is relatively small and would be limited to 50 people in attendance at the place of worship at any one time.
•	The proposed site layout, setback from neighbouring and nearby dwellings, existing boundary line landscaping, and the existing layout and use of neighbouring properties, including to the immediate south of the proposed Church building for the outdoor storage of building and other materials, tempers the existing amenity and experience of the Site, as well as the potential for a range of off-site impacts.
•	The requirement for a detailed landscape plan forming a condition of any permit issued would further ensure and avoid any potential land use conflict and the protection of surrounding rural residential amenity, including a landscape plan generally in accordance with the concept landscape plan annexed to this report and one which, among other matters, details all proposed lighting and wayfinding treatments for late night services.
•	The proposal includes provision for on-site car parking.
•	The proposal is able to be connected to reticulated waste water.
•	The continued opportunity for the rear portion of the Site to be utilised for a range of agricultural / hobby farming activities, consistent with the existing conditions, would support the ongoing compatibility of the Site with the rural residential setting.
30	I am not persuaded by these submissions and evidence, and instead find that the proposal is not an appropriate land use in this location.  I make this finding for the following reasons.
31	Firstly, the review site is currently not well serviced by road access, such that traffic to and from the review site will need to take a circuitous route through the existing rural residential estate.  As Ferris Road presently terminates north of the review site, it currently operates as a cul-de-sac with a very low level of traffic.  People attending a Place of worship on the review site would presently need to travel along a number of quiet roads through the rural residential estate, to gain access between the review site and the nearest higher order roads.  I have attempted to capture the circuitous access route on the map set out below (with the inverted blue triangle marking the review site).

32	Even with a congregation capacity of 50 people, due to the low traffic levels currently on these roads, the increase in traffic will be noticeable, and will at times affect the existing levels of amenity in this rural residential estate.  As one example of this impact, Ferris Road between Strathtulloh Circuit and Greens Road currently has an average of 123 vehicle movements on a weekday, 103 on a Saturday and 69 on a Sunday, according to the evidence of Ms Dunstan.  It is safe to assume that the existing vehicle movements on Ferris Road in front of the review site are much less than those figures, given that it has a ‘dead end’ one property to the north of the review site.  It is the evidence of Ms Dunstan that the proposal will generate daily traffic volumes of 34 vehicle movements, based on a congregation size of 50 people.  It is reasonable to assume that this volume of traffic movements will largely be concentrated at the beginning and end of a service.  Such a traffic volume will make a marked change to the existing amenity of this rural residential estate, particularly those lots that currently gain access off the cul-de-sac at the northern end of Ferris Road.
33	There has been a consistent approach by a number of Tribunal decisions that identify the potential amenity impact arising from locating a land use in a cul-de-sac, that will increase traffic levels, albeit not beyond the environmental capacity of the road.  These decisions are often traced back to the decision of Graphos (Aust) Pty Ltd v Nillumbik SC [2008] VCAT 2321, where the Tribunal remarked:
[5]	We also accept principles cited in other decisions tendered by the parties with respect to court locations. These include:
•	Residents enjoy a higher level of amenity that other local streets and main road locations given the usually smaller number of dwellings and an absence of through traffic.
•	Lots at the end of courts may not be suitable for development at significantly higher density given factors such as unusual lot shapes and sizes, multiple property abuttals and the impact of extra traffic.
•	Despite the higher amenity and development constraints, court locations are not precluded from some higher density development.
•	The situation of courts and cul-de-sacs can differ significantly from access streets or places that do not carry through traffic.
[6]	We would add that courts and cul-de-sacs can develop a sense of community that is often highly valued by residents.
34	The applicant contends that the existing road network is temporary, and that shortly Ferris Road will be extended to the north to connect to the urban growth area.  When this occurs, Ferris Road will no longer operate as a cul-de-sac, and instead will perform as a collector road.
35	I am not persuaded that the connection of Ferris Road to the urban area to the north, is as imminent as put by the applicant in its written and oral submissions.  While the component of Ferris Road within the Urban Growth Zone may be constructed in a reasonable time frame by the developer of that land, there still remains a need for construction of the northern end of Feris Road within the GWZ, and upgrade of Ferris Road to match, or at least integrate with, the width and function of the road to the north.  Ferris Road will remain a Council road, and Melton City Council advise that they have no budget and no current plans for these works.  As such, they may not occur for some time.  The uncertainty around this timing, means that I need to give greater weight to the existing road network conditions.
36	As a result, and for the reasons set out above, I find that the nature of the road network that provides access to the review site, is a matter that weighs against the grant of a planning permit.
37	Secondly, the proposed Place of worship is to operate at times that have the potential to create land use conflicts with the surrounding established rural residential estate.  In the assessment that follows, I have adopted the position as advanced by the applicant in this proceeding, that the Green Wedge Zone that applies to the review site and surrounding land does not seek to protect residential amenity (unlike the Green Wedge A Zone, for example), and that residential land use in the Green Wedge Zone is a Section 2 use, just like the proposed Place of worship on the review site.  For these reasons, my assessment that follows does not rely on an expectation of residential amenity of the kind anticipated in a residential zone, or even the Green Wedge A Zone.  Nor do I proceed on the basis that the residential use of land in this neighbourhood, should be preferred over a Place of worship.  Rather, I approach this assessment on the basis that the properties that surround the review site are currently used for rural living or rural residential purposes, and the Melton Planning Scheme contains policy that seeks to avoid land use conflicts.  Both the identification of this land as a rural living area, and the strategic desire to avoid land uses that bring impacts to this rural living estate, are also central components of the Western Plains South Green Wedge Management Plan (Melton City Council, February 2024).  As such, any future use of the review site, needs to be able to minimise conflicts with the surrounding rural residential land uses.
38	The applicant’s written submission sets out the following service times for the proposed Place of worship.
•	Sunday Services (6:00AM to 2:00PM);
•	Saint Day services on the 13th and 31st of each month (6:00AM to 2:30PM);
•	Saturday Services (1:00AM to 1:00PM) on three Saturdays per year (second week of October, first week of January and fourth week of August);
•	Holy Week (8:00AM to 4:00PM, Monday to Thursday. The dates to change year-to-year depending on the Coptic Calendar):
•	Good Friday (6:00AM to 6:00PM);
•	Easter Saturday (Qidame Se’atat) (6:00PM to 3:00AM);
•	Orthodox Christmas Eve (6:00PM to 3:00AM);
39	The result of these different services is that on every month, there will be a minimum of six or seven occasions (depending on whether there are four or five Sundays in a month) on which there will be people arriving on the review site to start preparations for services, commencing at 6:00am.  In addition, in January, August and October there will be another day (a Saturday) with people arriving from 1:00am onwards.  In addition, in whichever month contains the Coptic Orthodox Easter, there will be an additional six services, many of which variously commence at 6:00am or 8:00am, with one concluding at 3:00am.  Finally, the Christmas Eve service will also conclude at 3:00am.
40	These service times represent a considerable extent of night time activity in what can fairly be described as a quiet rural residential location.  By night time activity I am referring to the night period from an acoustic perspective, noting that this proposed Place of worship includes the 6:00am commencement of activities on a minimum of six or seven occasions per month.  While I had intended to consider off-site amenity impacts in a separate assessment later in these reasons, it is relevant to note at this stage that this night time activity amongst a quiet rural residential environment, would result in a range of off-site amenity impacts.  This includes the introduction of activity and movement into the night period in close proximity to neighbouring dwellings, the noise from vehicles and patrons, and headlights from vehicles.  
41	It is relevant to consider these proposed operating hours in the context of the proximity of nearby dwellings.  As set out in the Council’s written submissions in this proceeding, the neighbouring dwellings sited to the north and south of the review site are located 32 and 35 metres respectively from the common boundaries with the review site.  Additional neighbouring dwellings are sited to the rear of the review site, and on the opposite side of Ferris Road.  In short, the review site is in a Green Wedge Zone context where neighbouring dwellings are in relatively close proximity to the review site, and the proposed Place of worship.
42	For these reasons I find that the proposed operating hours of the land use will create a significant land use conflict.  In short, the operation of a Place of worship with the nature of the hours proposed, in a location in close proximity to neighbouring dwellings, is a land use that is fundamentally at odds with the use of neighbouring land for rural residential purposes.  I make that finding based on the proposed capacity of 50 people at the Place of worship.
43	Thirdly, and of less weight than the previous considerations, the proposed Place of Worship has the potential to expand, and create more significant land use conflicts with the surrounding properties.  As set out above, the provisions of the Green Wedge Zone contain a range of decision guidelines, including the following.
The potential for the future expansion of the use or development and the impact of this on adjoining and nearby agriculture and other land uses.
44	In this proposal, there are a number of indicators that the proposal has the capacity to expand, beyond its presently stated 50 person limit.  While the application proposes a maximum congregation of 50 worshippers, the proposal seeks approval for the construction of a church building of around 486 square metres, which can accommodate a congregation much larger than 50 people.  I form this view having regard to the size of the seats and the usually large spacing provided between them on the amended plans, as depicted below.

45	In addition, where Clause 52.06 requires the provision of 15 car parking spaces for a Place of worship for 50 people, the plans substituted at the commencement of the hearing proposed the supply of 29 car parking spaces.  The amended plans attached to Ms Dunstan’s evidence proposes the supply of only 15 formal car parking spaces, but the added provision of overflow parking for approximately an additional 14 to 21 car parking spaces.  The written submissions filed on behalf of the applicant state that the development depicted in the amended plans comprise a car park with a minimum of 30 car spaces.  Any of these outcomes can provide the car parking for a congregation at least double the size of that presently proposed for the review site.
46	Finally, while the applicant states that they currently do not exceed a congregation of 50 people at services, there is are photos and a video on a Facebook page, and circulated by the respondents in this proceeding, that depicts a past outdoor service for at least 90 people.  The Council report to its meeting of 30 October 2023, also notes the receipt of 194 submissions in support of the planning permit application.
47	For these reasons I find that there is a potential for expansion of the proposed use beyond the indicated 50 person limit, and that such an expansion could create increased and unreasonable land use conflicts with surrounding land uses, given the proposed hours of operation of this Place of worship.  For example, increased activity means increased noise and disturbance to the surrounding residential properties.  This is particularly concerning given the extent to which this proposed Place of worship is intended to operate in the night time period, for a minimum of six to seven days per month.
48	In addition, the potential for expansion of this proposed land use, would introduce additional traffic volumes onto the currently quiet streets that extend throughout this rural residential estate in the Green Wedge Zone.  The fact that traffic accessing the review site presently needs to take a circuitous route through the rural residential estate, and the uncertainty about the timing of the further construction of Ferris Street, compounds this concern and the potential amenity impacts.
49	Returning to the submissions and evidence filed on behalf of the applicant as previously summarised, I am not persuaded by these submissions and evidence for the following reasons.
a.	I accept the proposition that a Place of worship must be acceptable in some locations in the GWZ, indeed given it is a section 2 use, this is an uncontroversial submission.  However, the attributes of the review site, being part of a quiet rural residential estate with circuitous access by road and with neighbouring dwellings in close proximity, and the attributes of this Place of worship, with its semi-regular night time activity, make this proposal unacceptable in this location.
b.	The applicant’s submission that a Place of worship is not an inherently urban land use relies on a previous decision of mine, so naturally I agree with this submission.  The issue at hand here is not whether the proposal is an urban land use or not, but rather the nature and extent of the land use conflicts created by the context of the review site, and the nature of this proposed Place of worship.
c.	I acknowledge the need for this facility from one section of the local community, and address that need in the net community benefit analysis later in these reasons.
d.	I also accept that the proposal will not impact agricultural production on the review site and adjoining land, and that this is not a matter that weighs against the grant of a permit.
e.	While the site is close to the Urban Growth Boundary, I am not persuaded that the existing rural residential nature of this estate will significantly change as a result of development within the Urban Growth Zone.  The land inside the Urban Growth Boundary is to be developed with a drainage reserve along its southern boundary, that will act as a buffer to the land within the Green Wedge Zone.  While views to new dwellings will be gained in the future, this rural residential area will likely largely retain its current qualities and consistency of existing land uses.  There is no policy that was brought to my attention, that would encourage a greater mix of land uses, on land in the GWZ near to the Urban Growth Boundary.  While the Western Plains South Green Wedge Management Plan (Melton City Council, February 2024) states that this estate, “will continue to… act as a transitional buffer,” I regard this statement as identifying its current physical condition as providing that role, rather than encouraging a change to this estate in order for it to perform its buffer role.
f.	I have addressed the future function of Ferris Road separately earlier in these reasons.
g.	As set out above, I do not regard the strategic identification of this estate as a transitional buffer between the urban area and larger lots to the south, to lend weight to a greater mix of uses in this context.  The buffer is provided by a change in lot sizes, while land uses transition from largely residential within the urban area, to rural residential in the GWZ, to largely agricultural on the larger lots further south.  While other land uses, including a Place of worship, can be considered in the GWZ, they are encouraged by policy to avoid creating unreasonable land use conflicts.  For the reasons set out above, this proposal fails to achieve this outcome.
h.	I agree with the evidence of Ms Milner that a land use conflict is not created by the scale of the proposed building on the review site.  Rather it is the nature of the proposed land use that is of a concern, particularly the semi-regular night time activity in a quiet rural residential location, in close proximity to neighbouring dwellings.
i.	Adopting the EPA definition of night period, I cannot agree with Ms Milner’s evidence that there will only be night time activity 5 times per year.  Instead, activities will occur in the night period a minimum of 6 or 7 times per month.
j.	While I appreciate that a congregation of 50 people is relatively small, I also have to have regard to the potential for future expansion of the proposed land use.  For the reasons set out above I find that potential to be relatively high, with related increased potential for adverse land use conflicts.
k.	While setbacks are proposed for the review site, the level of proposed night time activity, including car headlights and noise from vehicles and patrons, will create a land use conflict with the surrounding rural residential properties in this quiet location, well removed from any arterial road.
50	As I have set out above, policy at Clause 02.03-1 of the Melton Planning Scheme seeks to:
Protect non-urban land from development that increases land fragmentation and land use conflicts. 
51	The proposal that is before me comprises a use and development that will create land use conflicts in this non-urban area.  It will produce a result that is in contrast to this clear policy objective, that is also supported by decision guidelines in the Green Wedge Zone, and other policy guidance, including that at Clause 13.07-1S of the Melton Planning Scheme.
52	I am cognisant that any planning permit application should never be considered against one policy alone.  Instead, one should weigh the benefits and disbenefits associated with any proposal, and while applying the Melton Planning Scheme as a whole, determine whether a proposal will achieve a net community benefit.
53	I also need to recognise that the proposal will comprise a substantial benefit for the Orthodox Ethiopian Christian Church congregation that seeks to have a Place of worship on the review site.  I understand and appreciate the benefit that would occur to this community, from the establishment of a spiritual and cultural ‘home’ on the review site.  The applicant put this benefit as high as a social need, insofar as it relates to the need of one section of the local community.  In my net community benefit assessment, I have accepted these submissions made by the applicant.
54	The application is silent on how the agricultural component of the review site will be used, and whether there will be any potential agricultural production on the land.  As such, there is no benefit to be gained from the potential agricultural production of the land.
55	However, the proposal will bring a range of substantial disbenefits, which are firmly discouraged by the Melton Planning Scheme.  Those disbenefits are described in detail above, and include land use conflicts between a Place of worship that operates in the early morning and late night and adjacent to residential land uses, associated off-site impacts with noise and lights (including headlights from cars), and increased traffic to a cul-de-sac and a series of streets in a rural residential area that presently experience very low levels of traffic.  The potential for the proposed Place of worship to expand in the future is also a relevant consideration, and one that will likely increase the potential for land use conflicts.
56	It is my finding that the land use conflicts, the identified residential impacts, and the potential for these impacts to increase as the use expands, are substantial disbenefits that result in a finding that the proposal cannot achieve a net community benefit.  It therefore follows that a permit should not be granted for the proposed use of the land.
57	My decision might well have been different if this proposed Place of worship were to operate during daytime hours, or a site was chosen more distant from neighbouring dwellings, thus reducing the potential for land use conflicts with the surrounding rural residential properties.  Also, if the property were accessed off a higher order road, if the upgrade to Ferris Road were complete, or if the timing of its upgrade to a collector road was more certain, then that would also have been a factor in favour of a grant of a planning permit.
58	Given this finding, it is not necessary for me to proceed to assess the built form impacts, native vegetation removal and traffic/car parking impacts arising from the proposal.
Conclusion
59	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Michael Deidun
Member