VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1942/2019
Permit Application no. WYP11487/19	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Wyndham Planning Scheme; Urban Growth Zone Schedule 4; Development Contributions Plan Overlay Schedule 11; Construction of two storey mixed use building; whether use is consistent with the PSP; planning policy; neighbourhood character; Internal Amenity; Parking arrangements	

APPLICANT	John Kachami	
responsible authority	Wyndham City Council	
SUBJECT LAND	1 Wagner Drive Werribee	
WHERE HELD	Melbourne	
BEFORE	Katherine Paterson, Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	13 August 2020	
DATE OF ORDER	16 September 2020	
CITATION	Kachami v Wyndham CC [2020] VCAT 1042   	

Order
1	In application  P1942/2019 the decision of the responsible authority is affirmed.
2	In planning permit application WYP11487/19 no permit is granted.

Katherine Paterson			
Member			

Appearances
For applicant	Mr Zoran Sajinovic, Town Planner 2181 Planning	
For responsible authority	Matthew Campbell, Town Planner Wyndham City Council	

Information
Description of proposal	Construction of a two storey building to contain three convenience or food and drink premises with three dwellings at first floor.  A car park containing 11 spaces is proposed to be provided, accessed via a proposed crossover to Wagner Road.  Pedestrian access is proposed to be provided to the site from Geelong Road.  Each apartment is proposed to contain two bedrooms, accessed via a central staircase via the car park.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Wyndham City Council	
Zone and overlays	Urban Growth Zone Schedule 4, Development Contributions Plan Overlay Schedule 11	
Permit requirements	Clause 32.08-2 Use of land for a convenience shop or food and drink premises;
Clause 32.08-6 Construction of two or more dwellings on a lot;
Clause 32.08-9 Construction of buildings and works associated with a section 2 use;
Clause 52.05-13 display of business identification and internally illuminated signage; and
Clause 52.34-2 waiver of the bicycle, shower and change facilities requirements of Clause 52.34	
Land description	The subject site has an area of 839 square metres, and is located on the corner of Princess Highway (Geelong Road) and Wagner Drive.  An easement at the rear of the site provides another vehicle access point to the site from Bamburgh Street.  	
Cases referred to	Riverdale NAC Investments Pty Ltd v Wyndham CC [2020] VCAT 828	

Reasons
What is this proceeding about?
1	On 5 August 2020 Wyndham City Council resolved to refuse an application to construct a two storey commercial building on land at 1 Wagner Drive Werribee.  Following their refusal the permit applicant requested that the application be reviewed by the Tribunal.  
2	The Tribunal’s order of 10 June 2020 allowed the amendment of the application.  As outlined in my order, the changes included:
•	A reduction in the number of convenience shops/food and drink tenancies from 4 to 3;
•	Introduction of 3 dwellings;
•	Removal of upstairs staff and administration areas;
•	Refinement of design detail;
•	Introduction of balconies and windows; and
•	Reduction of signage in size, number and depth.  
3	Council do not support the revised proposal on the basis that the proposed uses are inconsistent with the Alfred Road Precinct Structure Plan (PSP) that applies to the site; the proposed use is inconsistent with Council’s planning policies relating to non-residential uses in residential areas; the proposal is an unacceptable response to the preferred neighbourhood character of the area; the proposal does not provide adequate car parking and the proposed dwellings will have a poor level of internal amenity.  
What are the key issues?
4	The key issues to be determined by the Tribunal in this matter are:
•	Is the proposal consistent with the Alfred Road PSP that applies to the site?
•	Is the proposal consistent with planning policy?
•	Is the proposed design an acceptable response to the neighbourhood character of the area?
•	Are the proposed parking arrangements acceptable?
•	Will the proposed dwellings have an acceptable level of internal amenity?
Summary of findings
5	Having considered all the submissions and material before me, I have determined to refuse the application as the proposal is not generally in accordance with the PSP that applies to the land.  I am also concerned that the proposal will be an unacceptable design response to the neighbourhood character of the area and provide a poor level of internal amenity for the future occupants of the dwellings.  My reasons follow.  
Is the proposal consistent with the Alfred Road PSP that applies to the site 
6	The subject site is included within an Urban Growth Zone Schedule 4 (UGZ4), which requires planning permits to be generally in accordance with the PSP that applies to the site. In this case the Alfred Road PSP.  Recently, the Tribunal in Riverdale NAC Investments Pty Ltd v Wyndham CC [2020] VCAT 828 summarised the principles when considering whether an application is consistent with a PSP that applies to the site:
The principles to be applied to determine whether a permit is generally in accordance with a document such as a precinct structure plan are settled and are not in dispute.
It suffices to repeat two main principles. First, what is generally in accordance is a question of fact to be determined on the relevant facts and circumstances. Second, if there is less detail or precision in the document, there is more flexibility in determining whether a permit is generally in accordance with the document. 

7	As seen in the above extract from the schedule to the UGZ4 (annotated by the Tribunal), the subject site is located within an area designated as ‘residential’.  The applied zone for this area is the General Residential Zone (GRZ), the purposes of which are:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework. 
•	To encourage development that respects the neighbourhood character of the area. 
•	To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. 
•	To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
8	A planning permit is required to use land as a food and drink premises or a convenience shop.  As shown in the nesting diagram at Clause 73.04-11, the term ‘Food and Drink Premises’ includes a wide range of uses:

9	Council advised that the application was determined on the basis that the ‘bar and hotel’ uses were excluded from the application, although this is not clear from the material before the Tribunal.  As the subject site adjoins Geelong Road, the site meets the requirement of the GRZ that takeaway food premises and convenience restaurants must adjoin roads in a Road Zone, with, somewhat surprisingly no restrictions placed on the establishment of the remaining food and drink premises uses within the zone.  During the hearing Mr Sajinovic advised that the three tenancies are most likely to be used as takeaway food premises and based on the size of each individual tenancy, (80 square metres) I accept that this is the most likely outcome for these premises.  
10	The PSP identifies two local centres, and the PSP states:
Local shops at the intersection of Alfred Road and Geelong Road will provide access to convenience shopping and local services to complement the larger town centre at nearby Riverwalk.  
…Convenience retail will be provided at the gateway to the precinct at the intersection of Alfred and Geelong Roads.  This centre will act as a community node that complements the lager retail offering at Riverwalk in the north east.  
11	The nesting diagrams at Clause 73.04-11 and 73.04-12 of the scheme indicate that both ‘shop’ and ‘food and drink premises’ are included within ‘retail premises’, and ‘convenience shops’ are nested under ‘shops’.  The zone that has been applied to the Alfred Road local centre is the Commercial 1 Zone, where both ‘shop’ and ‘food and drink premises’ are as of right.  I find that the uses proposed by the application are anticipated by the PSP to be established within the local centre at the corner of Alfred Road and Geelong Road.  
12	But is it contrary to the PSP to allow these uses to establish outside of the centre within the residential area?
13	Objectives 6 and 7 of the PSP are:
O6	To ensure the local convenience centre is economically viable while providing a local convenience shopping experience.
O7	To ensure the development of convenience retailing and services in the precinct creates a safe and attractive neighbourhood hub and destination for local residents.
14	Guideline G7 for the local convenience centre states:
For an application for shop floor space above the as-of-right limits, demonstrate that the additional floor space will not unreasonably impact on the amenity of the neighbourhood, the operation of the intersection of Alfred and Geelong Roads and will retain the convenience level function of the centre.  
15	The PSP is silent on the establishment of non-residential uses within the residential areas contained within the PSP.  Under the provisions of the GRZ, as the site has frontage to a road in a Road Zone Category 1, these uses may be established on the site with a permit.  The Council has already approved a number of non-residential uses within the PSP including a childcare centre and a 7/11 Petrol station and convenience store.  
16	However, to be consistent with the PSP, care needs to be taken to ensure that the proposed non-residential uses do not undermine the economic viability of the proposed local centre and the larger proposed centre at Riverwalk.  
17	An economic impact assessment prepared by Macroplan was provided by the permit applicant.  The assessment identified a primary (local) and secondary (wider) trade area for the subject site.  The primary catchment takes in the two commercial centres identified within the PSP as well as the subject site.  Macroplan estimated that the population of the trade area is expected to grow from 73,190 in 2019 to 96,590 people in 2031.
18	Macroplan report states that whilst no specific guidance is provided for the scale of the Alfred Road local Convenience Centre, based on other PSP’s, it would be expected that this centre would range from 1,000 to 1,500 square metres in area and likely contain a convenience store of between 400 and 600 square meters and 1-2 food and beverage tenants.  
19	The assessment indicates that per capita expenditure on food-catering items is estimated at $1,614 per annum, 18.4% below the metropolitan Melbourne benchmark.  The assessment suggests that this is due to the food offerings found in the area which are takeaway/fast food focus, which has a lower price point that the more upscale eateries across the Melbourne CBD and inner suburbs.  The food expenditure is expected to grow from $116 million in 2016 to $178 million in 2031.  Food catering floorspace is expected to increase by 7,900 square metres in the wider catchment with 2,580 square metres required in the local area.  A total retail floor space of 197,390 square metres will be required for the wider catchment area by 2031.  The figures provided within Table 3.1 indicate that with the proposed centres at Riverwalk and the PSP (a total of 6000 square metres) there will be approximately 200,200 square metres of retail floor space within the wider catchment, exceeding the estimated future demand for retail floor space, including food and drink premises.  
20	Based on the data provided in the report, I agree with Council that despite its small size (240 square metres), the proposed development is likely to have an impact on the economic viability of both Riverwalk and the local centre.  I therefore find that the proposal is not generally in accordance with the provisions of the PSP, and in accordance with Clause 37.07-9 a planning permit cannot be granted for the development.  
Are there any other issues?
21	Having found that the proposal is contrary to the provisions of the Alfred Road PSP, there is no need for me to go through the remaining issues in detail.  However, I will indicate that I share Council’s concerns with respect to the overall design of the development and its impact on neighbourhood character of the area, and I am concerned that the internal amenity of the proposed apartments will be poor, not least because of the parking arrangements for the dwellings, in which the residents will have spaces within an open commercial car park, providing very real security risks for the future occupants of the dwellings.  
Conclusion
22	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Katherine Paterson			
Member