VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P926/2020
permit application no. PLA0012/20

CATCHWORDS	
Section 79 of the Planning and Environment Act 1987; Baw Baw Planning Scheme; Previous Tribunal Proceeding; Proposed Service Station; Yarragon; Strategic Context; Township Boundary; Future Residential Area; Residential Investigation Area; Township Development; Orderly Planning.	

APPLICANT	Jasbe Petroleum	
responsible authority	Baw Baw Shire Council	
Referral Authority	Regional Roads Victoria 	
RESPONDENTS	Inge Mitchell, Evelyn Lillie, Daphne Prince, Colin Lackman, Tracey White, Karen Green, Dene Cairns, Renee Kemp, Bryce Coulson, Alan Cahill, Dorothy Lindsay, Roy Lindsay, Yarragon & District Community Association Inc., Cate Bearsley-Smith, Ingrid Brown, Jenni Burchell-Robins, Craig Robins, Lee Richards, Michael Fozard President Yarragon Business Association Inc., Murray Cook, Margaret Oliver, Jackie Shearer, Kathleen Angus, Scott Draper Trafalgar Chamber of Commerce and Industry Inc.	
SUBJECT LAND	1-5 Princes Highway (Lots 1 and 2 on Plan of Subdivision 315811F) 
YARRAGON  VIC  3823	
HEARING TYPE	Hearing 	
DATEs OF HEARING	23, 24, 25 and 26 November 2020	
DATE OF ORDER	8 December 2020	
CITATION	Jasbe Petroleum v Baw Baw SC [2020] VCAT 1370	

Order
Permit application amended
1	Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting the following plans for the permit application plans:
•	Prepared by:	JD Design Australia Pty Ltd 	
•	Drawing numbers:	Drawings TP.01D – TP05-D	
•	Dated:	6 October 2020.	

2	In planning permit application PLA0012/20, no permit is to issue.

Margaret Baird		Philip Martin	
Presiding Senior Member		Senior Member	

Appearances
For Jasbe Petroleum 
[applicant]	Ms L Hicks of counsel by direct brief. She called the following expert witnesses:
•	Ms C Dunstan, traffic engineer.
•	Mr M Quick, economist. 
•	Mr R Phillips, agricultural consultant.
•	Mr R Milner, town planner.
•	Ms M Supplitt, drainage engineer.
A statement of evidence (2019) by Ms D Smith, bushfire consultant, was tendered.  It is the same as filed in the previous Tribunal proceeding. 	
For Baw Baw Shire Council
[Council]	Ms A Lane, solicitor of Marcus Lane Group.  She called the following expert witness:
•	Mr S McGurn, town planner.	
For Bryce Coulson, Cate Bearsley-Smith, Colin Lackman, Daphne Prince, Dene Cairns, Evelyn Lillie, Michael Fozard President Yarragon Business Association Inc., Murray Cook, Renee Kemp, Tracey White, Margaret Oliver, Jackie Shearer, Alan Cahill, Dorothy Lindsay, Inge Mitchell, Ingrid Brown, Jenni Burchill-Robins & Craig Robins, Karen Green, Kathleen Angus, Yarragon & District Community Association Inc., Trafalgar Chamber of Commerce & Industry Inc.	Ms K O’Reilly, town planner of SD Strategy and Development.	
For Roy Lindsay	Mr R Lindsay.	
For Ms L Richards	Ms L Richards.	
Information
Description of proposal	Use and develop the subject land for a 24 hour service station.  It includes 12 car refuelling points and four truck bowser refuelling points; 19 car parking spaces, one accessible space and five long vehicle spaces; eight truck parking spaces; a shop/store of 236m2; signs; mounding; drainage basin; removal of three trees; landscaping; and road access/egress including left-in/left-out deceleration and acceleration lanes.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to fail to grant a permit. 	
Planning scheme	Baw Baw Planning Scheme [scheme].	
Zone and overlays	Farming Zone [FZ]. Development Contributions Plan Overlay [DCPO]. The land abuts a Road Zone Category 1 [RDZ1].	
Permit requirements	Clause 35.07-1 - use of land for the purpose of a service station. Clause 35.07-4 - earthworks and buildings and works. Clause 35.04-7 - construct a building within 100 metres of the Princes Highway. Clause 35.07-4 - earthworks that change the rate of flow of water across the property. Clause 52.17 - remove native vegetation. Clause 52.29 – to alter access to a road in the RDZ1.  Clause 52.05 - to display business identification and floodlit signage.	
Relevant scheme policies and provisions	Clauses 11, 12, 13, 14, 15, 17, 18, 21.03, 21.04, 21.07, 22.01, 35.07, 52.05, 52.06, 52.17, 52.29, 65, 71 & 73.	
Land description	The subject land is Lots 1 and 2 on Plan of Subdivision 315811F with a combined area of 36.83ha. Lots 3, 4 and 5 on the Plan of Subdivision are also held in common ownership.  Lot 5 is in its own title.  The five lots are 84.81ha.  The subject land abuts the Princes Highway.  The Princes Freeway is to the west of the subject land.  The land is used for agricultural purposes and falls toward the Highway.  It contains two farm buildings and some vegetation. The site is unsewered and has access to mains water.  	
Tribunal inspection	SM Martin inspected the site and locality in relation to the previous proceeding.  SM Baird advised those present at the start of the hearing that she is familiar with Yarragon township and the location of the land.	
Previous case	Jasbe Petroleum v Baw Baw SC [2019] VCAT 392 (determined by SM Martin and M Birtwistle) in July 2019 after hearings in March and May 2019.	
Reasons
what is this proceeding ABOUT?
1	This is the second application before the Tribunal seeking to develop the subject land for a service station.  A previous application for a larger facility was refused by another division of the Tribunal because of the characterisation of some proposed uses that were found to be prohibited.
2	The permit applicant has lodged a new permit application with the Council.  As the Council failed to grant a permit for the proposal within the prescribed time, the applicant has lodged this proceeding with the Tribunal.   
3	After a Tribunal-directed compulsory conference, the applicant applied to amend the permit application with Revision D plans.  We have made that amendment, without objection raised by any party.  Based on the substituted plans, the Council has amended the grounds upon which it opposes the permit application.  Earlier, its three grounds were:
The Applicant has not demonstrated sufficiently the food offering is ancillary to the proposed service station use and not a prohibited use being a convenience restaurant. 
The proposed business identification and promotion signage is prohibited in the Farming Zone and results in a detrimental impact on the amenity and visual appearance of the rural area failing to meet the purpose of ‘clause 52.05 – Signage’.
The extent of native vegetation required for removal has not been formalised and therefore has not been properly assessed against the requirements of ‘Clause 52.17 – Native Vegetation’.
4	Now the Council’s only ground is:
The proposal is inconsistent with the purposes of the Farming Zone, fails to appropriately respond to the policy framework, is at odds with the policy directives in the Yarragon Structure Plan, is premature in nature and does not constitute properly and orderly planning of the town.
5	Respondents and other persons who have lodged statements of grounds oppose the permit application on the same ground and additional grounds. Among their grounds are that the proposal is inconsistent with the strategic direction for the land which is identified as a future investigation area for residential zoning/development; is inconsistent with the Planning Policy Framework and Local Planning Policy Framework; fails to provide for orderly and proper planning; is not site or locality responsive; and will adversely impact on the established rural character particularly because of its scale.  Further, they oppose the loss of productive agricultural land, contend there will be impacts on existing businesses in Yarragon, and argue there is no need for the facility given options in the near and wider area.  Ms O’Reilly refers to multiple uncertainties about the proposal.
what are the KEY ISSUES?
6	We must assess whether the permit application achieves an acceptable outcome having regard to the provisions of the scheme. Clause 71.02-3 requires the decision-maker to endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.  
7	The key issues in this proceeding are:
•	Is the proposed use properly characterised as a “service station”?
•	What is the extent of the subject land?
•	Is the proposal an acceptable response to the scheme’s policies for the development of Yarragon?
•	Are the design and layout acceptable in terms of town character and Yarragon’s identified western gateway?
•	Would there be an unacceptable economic impact on the township?
•	Would there be unreasonable adverse off-site amenity impacts?
•	Is the proposed removal of native vegetation acceptable?
8	Before we address these key issues, and briefly refer to other matters raised in opposition to the application, we refer to the relevance of the previous Tribunal proceeding.
How is the previous case relevant?
9	The previous Tribunal proceeding was decided on a legal ruling relating to the characterisation of the proposed land uses.  The permit application was made as a service station or described as a service centre.  The Tribunal determined that two food offerings/stores were properly characterised as convenience restaurants and prohibited land uses under clause 35.07.  
10	The Tribunal also commented on the potential for the proposal to be modified by deleting the prohibited uses and other matters such as signage.   It also made some “informal” comments and expressed its “initial impressions” about the planning merits having asked the parties to distil “the critical ‘yes or no’ issues arising, as opposed to more straightforward aspects that could be readily dealt with in permit conditions”.  Among the comments were:
However, near the end of the hearing, we asked Council and the objectors to clarify what they considered the critical ‘yes or no’ issues arising, as opposed to more straightforward aspects that could be readily dealt with in permit conditions.  
In this regard:
•	Council advised that it saw the two ‘yes or no’ issues as being the legal ‘characterisation’ issue and the extent of strategic support for the proposal.
•	Mr O’Reilly endorsed this, but also indicated that her clients were also concerned that the physical extent of the proposal would constitute an over-development
and where Mr Lindsay did not take this summary any further.
Our initial impression is to endorse this summary.  In other words, if you take out the large range of issues which can be readily ‘conditioned’ and now that the ‘characterisation issue’ has been resolved, what seems left is the quite confined issue of whether or not the proposal enjoys an acceptable level of strategic planning support on land zoned Farming Zone, plus a dollop of debate about ‘overdevelopment’.  These are now issues for another day, bearing in mind that the proposal itself needs to be properly settled, before the planning merits can be properly assessed.
11	The current proceeding relates to a fresh and scaled-down proposal and has proceeded on the planning merits arguments. The few arguments about characterisation are addressed below.  The physical and planning circumstances are not said by any party to be materially different, other than notable references to the influence of the pandemic on population and vehicle movement to Yarragon, through Yarragon and associated with the main road corridor.  We have also been advised through Mr Lindsay’s submission, and information subsequently tendered by Ms Lane, of Council approval of some 500+ housing lots on land in Yarragon in 2019.
12	The submissions and evidence before us in this proceeding address a wider range of matters than strategic planning support on land in the FZ and “overdevelopment”.   Other than criticisms of aspects of the strategic planning context to which we refer below, the Tribunal’s 2019 decision made no express or concluded findings on matters that have been argued (some new and some for a second time) in this case.  Further, there are new considerations in the current proceeding, as will be apparent in our reasons below. Notable is the question of offsetting lost flood storage capacity as a consequence of fill required on the subject land.  This is addressed by Ms Supplitt’s supplementary evidence.  Another example relates to arguments about impacts on the FZ, as noted in Ms Hicks’ submission.
13	Hence, while we have considered the principles of “repeat appeals” they are not applicable in the same way as if the Tribunal had determined the planning merits and the new permit application had endeavoured to satisfy the reasons why a permit was refused on its planning merits.  
14	It is clear, however, that the proposal has responded to the previous Tribunal decision by deleting the prohibited uses and approaching the convenience offer in a modified way.  
IS THE PROPOSAL PROPERLY CHARACTERISED as a “service station”?
15	The permit application is to use and develop the land for a service station.  The Council accepts this is the proper characterisation of the proposed land use with the convenience offer being an ancillary use.  We accept this position taking into account the size and nature of the convenience offer.  We note that food will be pre-prepared and there is no internal seating area.  
16	Mr Lindsay submits the proposal is a “truck stop”, not a service station.  This is because of the size of the facility compared with other service stations (such as the 24 hour United at the eastern end of Yarragon) and freeway service centres (such as at Longwarry and Officer).  He also refers to the Valuer-General Victoria and Municipal Group of Valuers Guidelines on Valuation Methodology for Petrol Stations in referring to the subject land as “super site”. He observes a service station of the size proposed would be prohibited in a General Residential Zone.  Mr Lindsay further refers to the applicant’s concentration on truck drivers as a related reason.
17	There is no definition of “truck stop” in the scheme.  The applicant submits much more would be required for truck drivers if the characterisation of the use is a truck stop.  In particular, there would be parking overnight. The truck parking that is provided is limited to two hours only.  Ms Hicks also notes that there is a shower for all users and no “truckies lounge”.   She submits that the store and limited facilities for truck drivers are part of the business generally; they grew out of community expectation and have been introduced to enhance the facility.  The applicant submits the uses are integrated and that a fairer appraisal of those uses is that they are an “adjunct and offshoot of the petrol bowers business”.
18	We are satisfied that the permit application before us is for a service station.  Clause 73.03 defines “Service station” as:
Land used to sell motor vehicle fuel from bowsers, and lubricants.  It may include the:
a	selling of motor vehicle accessories or parts;
b	selling of food, drinks and other convenience goods;
c	hiring of trailers;
d	servicing or washing of motor vehicles; and
e	installing of motor vehicle accessories or parts.
19	We do not consider the categorisation referred to by the Valuer General’s Guidelines assists.  It is prepared for purposes unrelated to our categorisation task under the scheme.  It describes “primary tier” sites in sub-categories including:
Super sites – very large petrol stations or service centre truck stops usually located on freeways, major highways/arterials.  These sites cater for large transports i.e. B-doubles and semi trailers and frequently have fast food outlets available i.e. McDonalds, KFC, plated food and amenities.  
20	The proposal before us will cater for large transport vehicles as well as other vehicles.  There are no fast food outlets.
21	Short term parking for users of the service station to stop or take a break while they consume food and beverages and/or use available facilities and amenities is reasonably part of a service station on a highway.  
22	The scale of the proposal, per se, does not change our conclusion that the proposal is a service station given the components of the proposal and conditions the applicant has attached (such as time limits on truck parking).  
23	We accept the applicant has emphasised the benefits for truck drivers but this does not persuade us to accept the proposal is an innominate use of “truck stop” rather than the defined land use term of “service station”.
What is the extent of the subject land?
24	The subject land has been referred to in material before us (and the previous case) as 1-5 Princes Highway, Yarragon.  The permit application was made to the Council for Lots 1 and 2 on Plan of Subdivision 315811F, not all five lots.  The application plans before us make this clear (as also evident in an extract of the Revision D site plan we have included below).

25	The drainage solution for the proposed development includes a detention basin on Lot 2.  This solution does not account for the change in flood capacity caused by fill to position the service station above the 1:100 year flood level.  On 20 November 2020, supplementary civil engineering evidence [addendum] was forwarded to the Tribunal and parties addressing the need to replace the flood capacity lost by filling of the subject land.  
26	The addendum shows what Ms Supplitt termed a “conceptual response” (an extract of which is below) . Ms Supplitt refers to the proposal’s contribution to ensuring pre-development levels are maintained as a possible first stage for the future western retarding basin considered through strategic planning for Yarragon. Lots 3 and 4 are potential locations for this western retarding basin.  

27	In oral evidence, Ms Supplitt states that the compensatory works need to be part of the service station development.  She indicates the drainage/flood storage potentially could occur on the southern part of Lot 2 with excavation however, she also states that it is important to have flood storage as part of this development on Lots 3 and 4.  Ms Supplitt comments that Lot 3 is flooded in a 1:100 year event and this is the direction of water flow.  
28	If needed, Ms Supplitt states there would be scope to use the northern part of Lot 5; this opinion was expressed in response to a question from the Tribunal about how more flood/catchment drainage capacity could be provided if needed.  The volume/capacity presumed in the concept is based on the Yarragon Flood Modelling and Drainage Study that uses a township expansion scenario that, we note, may involve variables that could change.  
29	As a consequence of the evidence, a question was posed on Day 3 of the hearing as to the area to which the permit application applies.  On the final day of the hearing, Ms Hicks applied to amend the permit application to include Lot 3 as part of the “planning unit”.  In the alternative, she has proposed a voluntary section 173 agreement under the Planning and Environment Act 1987 as a permit condition relating to necessary works to mitigate the loss of flood storage capacity off-site.
30	The application to amend the permit application is strongly opposed by other parties.  This is for a range of reasons including uncertainty about what works would occur on Lot 3, what planning permissions would be involved, whether any more native vegetation would be affected, the inability to assess the impacts of unknown works, and the piecemeal approach to the land’s development. 
31	We have not granted leave to amend the permit application under clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.  In addition to the fact that there has been no notice of the amendment application to potentially affected persons, there is no specific proposal as to what development and/or works would be required (that in turn could give rise to new permissions under the scheme). Moreover, there is no analysis of the impacts and implications, such as on native vegetation and on other properties.  There are also strategic considerations in planning for the investigation area (as we discuss below).  
32	Flood modelling was sought by the West Gippsland Catchment Management Authority [CMA] in its response to Council in January 2020 given the proposed works are within the current 1% AEP flood extent.  The CMA stated that the works “have the potential to significantly alter flood flows on the floodplain to the possible detriment of neighbouring properties and infrastructure through increased flood heights and flow velocities”.  Its letter continued that its advice is preliminary and that for the CMA to support the proposed works, a detailed two-dimensional hydraulic flood model must be provided which demonstrates that no off-site impacts to the flood height, extent or flow velocity will result from the works.  The CMA separately advised Ms Supplitt that it would be unlikely to object subject to two permit conditions. However, in its 7 August 2020 letter to the Council, the CMA stated that there is insufficient information to support the proposal and assess the proposal’s impacts.  The CMA requested further information be sought and stated that it “objects to the issue of a planning permit if the requested information is not provided to the Authority’s satisfaction”.
33	It is well-known that the subject land is low-lying.  That is apparent in an array of factual and policy material. The potential impact of the proposal in terms of flood management has been a “live” issue for an extended period of time including being ventilated through the statements of grounds and submissions by respondents.  It is a relevant matter under multiple clauses in the scheme such as 14.02, 35.07 (purpose), 35.07-6 (decision guidelines) and 65.01.  The lack of resolution of this matter is problematic.  It cannot, in our view, be remedied by amending the description of the subject land to include Lot 3 and deferring resolution of its development and/or works to permit conditions (such as a section 173 agreement).  
34	We agree with Ms O’Reilly and Ms Lane that this issue raises the question of piecemeal development.  This was referred to in the previous case in the context of signage:
On the one hand, this does raise issues of ‘piece-meal development’, where the leading decision of Pioneer Concrete (Qld) Pty Ltd v Brisbane CC [1980] HCA 1 was critical of permit applications that lack significant associated permissions which are necessarily involved in the overall proposal being put forward.
Is the proposal an acceptable response to the scheme’s policies for the development of the Yarragon township?
Strategic context
Scheme policy
35	Part of the vision for Baw Baw is to manage its growth:	
Maintaining the integrity of the land resource and its protection from unplanned urban and residential encroachment is vital for the long term economic prosperity of the Shire and its people. 
36	The settlement strategy indicates that Yarragon is one of four medium-sized townships with a strong local service role.  The population increase to the year 2036 will be largely accommodated within the main towns of Warragul and Drouin. “Strategically planned incremental expansion of the remaining towns will also occur”.   Plans in clause 21.04 identify land on the periphery of (among others) Yarragon which is “considered to be suitable for future urban use, and which may be rezoned to enable it to be developed as and when required.”  Clause 21.03-2 continues:
Priority for urban expansion should be given to a consolidation of development in areas which are currently in an urban zone and provided with the required services infrastructure.  Further, land outside these areas should only be rezoned and made available for urban development where this is within the prescribed township boundary, where appropriate precinct structure plans have been prepared, and where it has been demonstrated that development will proceed on an orderly sequential basis.
37	Yarragon will accommodate a medium level of growth consistent with its “more limited infrastructure”.   Among multiple strategies for growth are to establish defined urban edges and to “Ensure services and infrastructure are planned and delivered efficiently in association with new residential development”.
38	Policy for Main Towns derives from the Baw Baw Settlement Management Plan 2013 [BBSMP].  The policy refers to key directions for the growth of Yarragon, included in the specific town structure plans. An objective of clause 21.04 is to facilitate development in accordance with the town plans that form part of the clause.  The coordinated planning and development of the six largest urban areas is said to be important for the efficient provision of infrastructure and services, the management of residential, industrial and commercial development, the continuing development of the transport network and the provision of community facilities and services.
39	Policy for Yarragon is at clause 21.04-6 with the Structure Plan in that clause shown below.

Subject land

40	The subject land is shown in a “Future General Residential Zone” and partly within a “Future Retardation Basin”.  The land abuts the western edge of the identified township, at the “Town Gateway”.
41	The township boundary is to be retained in its “current position” (even though the Structure Plan in the clause shows the boundary expanded from that shown in the 2010 document which we include below and there is no other document to suggest further expansion beyond Gordon Road), with growth to the south of the Princes Highway.  The clause states that potential expansion to the east, west and south is to be considered in order to provide new land for residential uses.  Standard residential densities are anticipated within the western expansion.  
42	Commercial development is not directed toward the subject land, rather it is policy to:
•	Consolidate existing commercial and industrial lots to allow further development. This includes the transition of residential properties within the Commercial and Industrial 1 zones. 
•	Encourage bulky goods businesses in the Commercial 2 Zone land fronting the Princes Freeway east of Rollo Street.
•	Consider the expansion of the town centre to the east (south of existing Commercial 2 Zone land) to support the future population in the long term.
43	Other elements of the policy include:
•	Given the southern growth area will not trigger required sewer and water upgrades for township expansion this area will most likely be the first stage of growth. Subject to detail investigation and design, it may be possible that only minimal upgrade to the proposed Hazeldean Road retardation basin as identified in the Yarragon Drainage Strategy is required. 
•	Land rezoned in the east and west should also have a Design and Development Overlay (or similar control) to ensure development enhances town gateways.
44	The Princes Highway is a key physical and functional component of Yarragon.  It plays an important strategic role including in tourism.  Part of the vision in clause 21.02 with respect to transport and infrastructure is “Building on the Shire’s strategic location as one of Victoria’s major transport corridors being between the Melbourne metropolitan area and the State’s energy centre, the Latrobe Valley, will enhance the economic viability of the Shire”.   Clause 21.08 observes pressures for residential, commercial or industrial development will be mainly experienced along the Princes Highway and Melbourne-Gippsland railway corridor servicing eastern Victoria and the Shire.  
45	More broadly, local policy addresses other themes including rural land policy, tourism, economic activity, transport and infrastructure that are relevant to the strategic directions for Yarragon.  We have considered these as relevant to the matters before us and refer to some of these policies later.  Continuing and complementing the evident themes from above are policies and objectives such as:
•	To improve the quality of residential and rural lifestyles and support economic development through the timely provision of infrastructure. 
•	To support agriculture as a major contributor to the Shire’s economy and to retain the potential for large scale, broadacre based farming enterprises by encouraging the retention of large lots.
46	Clause 21.08 addresses infrastructure.  It states infrastructure provides the basic services required for urban and rural living and production. Its provision has to meet standards and objectives relating to reliability, safety, cost, maintainability and economic efficiency but also environmental sustainability and quality.  Infrastructure can be provided in a way that meets all needs, and adds positively to the urban or rural experience.  Objectives in clause 21.08-4 are:
To support the maintenance of environmental quality by ensuring a co-ordinated approach on the location, layout, siting and timing of development and the provision of infrastructure.
To provide clear and consistent guidelines for the planning, design and construction of infrastructure.
Reference documents/documents cited in the scheme
Yarragon Structure Plan 2010
47	The adopted Yarragon Structure Plan 2010 is a reference document in the scheme.  This Plan locates the western town boundary at Hazeldean Road, east of subject land, as shown below.

48	The 2010 Structure Plan shows potential future commercial expansion directed to the east of the town centre (within the town boundaries) rather than to the west, where the subject land is located.  This is consistent with the Structure Plan in clause 21.04-6.
Baw Baw Settlement Management Plan 2013
49	The BBSMP is also a reference document in clause 21 and is cited in policy, as indicated above.  
50	The existing conditions described in the BBSMP are based on the 2010 Structure Plan.  Growth scenarios have been modelled and assessed.  The BBSMP anticipates Yarragon’s population will grow from 998 people in 2011 to 1,498 people in 2036, requiring the development of 218 dwellings. In order to accommodate this growth, the BBSMP says the current urban growth boundary (that appears to be the 2010 boundary) is to be maintained in the short to medium term, with residential investigation areas directed to the east, west and south following further analysis post 2026.
51	The phrase “residential investigation area” applies to the subject land and western town extension.  The conclusion states towns including Longwarry, Trafalgar, Yarragon and Neerim South are recommended to achieve a density of 15-20 dwellings a hectare for the town centre and 8.5 dwellings a hectare for residential areas.

52	Points 1 and 2 in a list of recommended outcomes state:
The urban growth boundary is to be retained in its current position in the short to medium term but investigation areas to the east, west and south of the town should be considered to provide residential land supply post 2026. Land to the north should be considered for longer term industrial provision to provide employment to future residents. Considerations for the investigation areas to include infrastructure costs, drainage issues, town character and the linear spread along the highway.
All of these investigation areas have been included in the Yarragon Drainage Study being undertaken in late 2013. It is anticipated that this study will require flood mitigation works within investigation areas to cater for existing flooding. Given existing drainage infrastructure commitments in the growth areas of Warragul and Drouin, the further expansion of Yarragon should only occur until the full long term implications of all infrastructure provision (including sewer and water) is known and planned for. An indicative timeframe of 2026 is therefore provided to plan for this growth, but to ensure land supply is not fully exhausted (however it is possible land supply will become constrained by that time).
53	The reasoning for the conclusions include:
•	The presence of high quality agricultural land is an identified constraint but not one to prevent consideration of future urban expansion through the investigation of future urban growth areas. 
•	The proposed eastern, western and southern residential investigation areas and the northern industrial location to provide logical directions of growth for the expanded town. 
•	Rezoning should only occur once Gippsland Water has required sewer and water upgrades in their program of works. Otherwise required infrastructure upgrades would be a significant cost to the developer which may make development unfeasible.
54	The Plan proposes an action to update the Yarragon Structure Plan to include new growth areas.  Key issues to address are:  
Upon the completion of the Yarragon drainage strategy updates to the structure plan to include new growth areas will be required. This may include a staging plan in accordance with infrastructure provision.
55	With respect to drainage, the BBSMP includes:
Several localities are affected by local groundwater issues and will require investment in drainage management. Some of this can be provided on a project basis with local retention ponds/retarding basins however towns such as Longwarry, Trafalgar and Yarragon may require significant works to enhance the protection of the town centre and main connector roads.
Role of reference documents
56	As reference documents, the 2010 Structure Plan and BBSMP are background documents.  Neither is incorporated into the scheme, however, it is clear that both have informed scheme policy.  The BBSMP is the most recent which is reflected in clause 21.06-4 with respect to Yarragon.  Scheme policy in clause 21.04-6 cites the 2010 Structure Plan in very specific ways - as follows:
The Yarragon Structure Plan 2010 provides important guidelines for development and urban design.
Commercial 
Refer to the Yarragon Structure Plan 2010 and relevant Design and Development Overlay for style guides for new development within the commercial zones.  
Amendment C139
57	Proposed Amendment C139 is a relevant matter under sections 60(1A) and 84B of the Planning and Environment Act 1987 but the amendment is not at  a stage that it can be regarded as a “seriously entertained proposal”. Although Amendment C139 is at an early stage, it is relevant that it is not attempting to change the strategic directions for Yarragon.  The Amendment is described by the Council as a “policy neutral” modification to the scheme with respect to Yarragon.  It has recently completed public exhibition.
58	Proposed general strategies at a new clause 11.01-1L with respect to growth in Baw Baw include:
•	Discourage development outside township boundaries as shown on the Framework Plans to this Clause where reticulated services are available or capable of being delivered. 
•	Maintain clear distinctions and physical separations between settlements by providing defined edges to urban areas where they abut rural land. 
•	Encourage a clustering of community and civic services including schools, sporting and recreation facilities to create neighbourhood centres within each settlement.
59	Directions evident in the current scheme are retained.  Yarragon is a secondary town with moderate growth.  The overall concept is of industrial development to the north of the Princes Highway and residential and commercial growth to the south.  Residential growth is directed to three identified areas (west, south and east).  The west is to be developed at standard residential densities.  Town gateways are to be enhanced.
60	The Framework Plan included in Amendment C139 is shown below.  The subject land abuts the western town boundary, which is an unambiguous line, and at a township gateway.  The land is identified as “Future Residential Zone – subject to further investigation” and labelled “Residential Investigation Area” [RIA].  A future retarding basin is shown over part of the subject land.

Future strategic work
61	Several respondents refer to a budget allocation for 2020/2021 for the commencement of an updated Settlement Plan for the Yarragon township. 
Commentary in the previous case
62	In relation to the matter of “strategic support”, the Tribunal’s comments related to:
•	The identification of the township boundary and inconsistencies between the plans.
•	Related to this, parties’ positions assessing the proposal against the FZ provisions and against a potential future General Residential Zone.  A closing comment was “Surely common sense indicates that you either take ‘farming’ or the ‘future residential use’ (but not both) as your focus point here”. 
63	The parties have responded to these remarks.  As Ms Lane has indicated, they have sought to assess the proposal based on the current zoning and to also address the future strategic context based on local policies and associated strategic work.  This is an appropriate approach.  The Tribunal must consider how the proposal responds to both its existing planning context and articulated future directions in the scheme.  
Conclusion
64	We have set this material out at some length because it shows how policy has developed and the documents that have informed the directions for Yarragon.  The subject land is zoned FZ but is part of an area that is an anticipated western extension of the township, for which further investigation and planning is expected.  The western extension is to occur later than other growth flanks.  
65	The subject land is mapped as part of the township.  Residential zoning is foreshadowed.  Development is intended to occur in a planned and orderly sequential way.  Infrastructure, including that associated with drainage and flooding, are a central part of this.  Even if one takes the view that the subject is not inside the township boundary because of the wording in clause 21.06-4 (and contrary to the plan in clause 21.06-4), we are still obliged to assess the proposal under the current zoning provisions and related policy.  
Response to policy for Yarragon
66	We next consider how the permit application responds to the strategic and planning contexts that apply.
Site suitability
67	Mr Milner regards the subject land as one of few sites available on the Highway for this type of use with all of the components to service Highway users.  Those components include fuel, refreshments, rest facilities and amenities, a place for large vehicles to stop and (for example) undertake safety checks during the day or overnight.  The large site size enables very generous setbacks and landscape areas, among some of the best Mr Milner says that he has seen.  The edge of town location avoids affecting the retail centre while the land’s peripheral location at the long-term settlement boundary is at a point where it intersects with the state highway/freeway.
68	We do not have an assessment of sites to verify the availability of others, however, we accept that sites of this size on the Princes Highway and associated with a township are unlikely to be plentiful.  
69	There are no adjacent dwellings and the proposed service station can fit on Lots 1 and 2, and achieve substantial landscaping and setbacks. 
70	However, the subject land has various physical constraints that create some complexity in planning a facility of this type and size.  The obvious physical consideration is its low-lying position.  Infrastructure issues for the site, and catchment, must be addressed.   For reasons we explain elsewhere in this decision, these have not been adequately addressed.
Commercial areas
71	There is no express policy support in the scheme for a service station on the subject land (or any other location) in Baw Baw.  The land is not part of an existing or future commercial area identified for the township.  Rather, the land is earmarked for residential and retarding basin functions.
72	With respect to the possibility of Lots 3 and 4 being used for the retarding basin, Mr Milner states that a high proportion of the Highway frontage would be used to address a strategic drainage issue.  He suggests Lot 5 may have a residential role in this scenario but, given the balance of the frontage to Gordons Road, Lot 5 could have a Highway-related use.  His evidence is that the proposal can be integrated with the township along the Highway.
73	We accept submissions that the land is separated from, and will not have any direct relationship with, other commercial development in the existing town centre or future commercial development within Yarragon which is directed to the east of the town.
74	We are not persuaded to accept the applicant’s position that some potential for integration with the commercial area results in an outcome that accords with the strategic directions for Yarragon.  The subject land is not contiguous with the commercial precinct.  Rather, the possibilities canvassed in the evidence are indicative of an outcome that represents an   ad hoc expansion of the commercial centre to a location that is not identified for this purpose, particularly when we take into account the unresolved matters relating to drainage/flood capacity.  
Future investigation and planning processes
75	Multiple parties oppose the proposal on the basis that it is inconsistent with the strategic vision for Yarragon and does not represent orderly planning.  Further, they submit the strategic direction for this site may evolve over time, with the preparation of an updated settlement plan for the township and further investigations that are directed by policy.
76	Mr McGurn’s evidence includes that whilst the site is within the township boundary, no appropriate precinct structure plan has been prepared and the area has not yet been investigated for residential development. On that basis, his opinion is the proposed development is not proceeding in an orderly or sequential basis.  Urban development is not contemplated on the subject site yet.
77	Ms O’Reilly and Mr Lindsay submit the subject land comprises a very significant parcel (both in size and location) which is identified for residential use post 2026 (at the earliest).  This is subject to a host of further considerations, including prioritising development on existing urban zoned land; further consideration of flooding and infrastructure cost and provision including sewerage and drainage. In cross-examination, Mr Milner indicates Lots 1-5 might be around one third of the total western growth area.  The respondents submit the development of the subject land is not within the immediate sequence of residential land and should only be made available for urban development when a precinct structure plan has been prepared.  Further the land has not been rezoned.  No Design and Development Overlay has been introduced to protect and establish a set of design requirements for the subject land to enhance the town gateway and respond to the township character.
78	Ms Richards states that:
Once this land is permitted to be used for an unplanned development, a development that is not part of the strategic plan for the town, we have lost the opportunity to maintain the vision for the town. Development for the growth and future needs of the community should reflect the community’s (and the Baw Baw Shire’s) desire to maintain a small-town rural character and lifestyle. 
79	Mr Milner’s evidence states that ‘the proposal might be fairly criticised as an isolated development removing farmland and opportunistically taking advantage of land with a highway frontage”.  He agrees that the proposal would “leapfrog” the rezoning and structure planning process.  However, he does not consider that is fatal to the permit application and does not represent “disorderly planning”.  In Mr Milner’s opinion, the proposal protects the flood storage on land to the east of Lots 1 and 2, can manage service provision and link with other services, such as sewerage, and presents a good transition to rural land. 
80	Further, Mr Milner does not regard the proposal is premature because (among points we have not already referred to from the evidence):
•	A permit can be granted for the proposed use and development.
•	There is no requirement to rezone the land.
•	The use and development can be undertaken within the sewer and servicing constraints of the locality.
•	The land is identified for a future urban role.
•	There is an established freeway-based market and perceived need for the use and development by the proponent in this location.
•	The site is located at the extreme edge of the western growth area of Yarragon and its development would not preclude or compromise the integrated layout and development of a residential community on the balance of the growth area.
•	It would not preclude the balance of the Princes Highway frontage of the growth area being used for residential or commercial purposes.
81	We do not accept the submissions and evidence for the applicant, rather, our assessment concurs with that of the Council and respondents.  Specifically, we accept Mr McGurn’s evidence including that:
The site is strategically important as a residential investigation area for the town’s future expansion. 
The size of the proposal is expansive in size and will direct a significant portion of the investigation area to non-residential uses. 
The application is premature in a strategic planning sense and therefore does not constitute proper and orderly planning. 
82	The scheme makes clear the importance of coordinated and orderly planning, including the funding and development of infrastructure, as we have set out earlier in these reasons.  The planning process articulated by the scheme seeks to ensure that this is dealt with in advance.  The proposal pre-empts this process and its outcomes.  It is not a small scale use but a development that, at minimum involves some 3.68ha and, if required, in the order of 6.8ha if Lots 3 and 4 are needed to replace lost flood capacity.
83	Ms Hicks asked rhetorically, how long do we wait for policy to do its work?  The land has been identified as an investigation area for some 10 years.  The policy and background documents project urban development in the western growth area potentially being needed in some five years.  On the information available to us, policy is being implemented in an orderly manner through 500+ housing lots on land around Yarragon approved in 2019 in existing zoned areas and on land identified for growth that has available, or has resolved, servicing and infrastructure provision.  The area of the subject land is known to have some complex features and constraints.  
Future residential zone
84	The Council submits the proposal is inconsistent with Council’s strategic vision for the subject land as residential land, as shown in the Structure Plan at clause 21.04-6.  Mr McGurn’s evidence is that a service station use does not align with the contemplated residential focus for this area.  He, and others, comment that the proposed land use would be prohibited in the General Residential Zone which limits the size and location of such a use.
85	Mr Milner accepts the proposal would be prohibited under clause 32.08 but disagrees that the use and development do not align with future residential zoning.  He regards the proposed use as aligning with any future residential zoning of the land because it will serve a local community need in addition to the regional need for Highway users.  Mr Milner is also satisfied that a sufficient buffer can be created to any sensitive uses on adjoining land.  He estimates the lost opportunity for some 35-37 houses at 8-10 dwellings per hectare.
86	Mr Milner expresses some concern about the feasibility and suitability of residential use and development along the Princes Highway frontage.  He refers to situations in other places where high acoustic walls to required protect dwellings create a poor presentation and amenity.  Mr McGurn’s opinion differs.  He refers to ways in which an acceptable residential outcome to the Princes Highway could be achieved, as has occurred in other locations, such as through the provision of a service road, dwelling setbacks and landscaping.  
87	We prefer Mr McGurn’s evidence.  A residential interface to the Princes Highway could be planned in a manner that ensures an appropriate level of amenity is achieved for occupants while also responding to the township’s character (and western gateway).  The type of outcome to which Mr McGurn refers can be seen in other regional and metropolitan growth areas.  We add that the retarding basin, itself, could work to provide physical separation as well.  Therefore, we do not consider there is justification for the proposal on the basis that the prospect of residential development in the northern part of the western growth area is problematic.
88	The scheme as it exists today, and proposed Amendment C139, expressly refer to a future General Residential Zone, within which the proposal would be prohibited.  It is true that the future zoning of the land may lead to a different outcome, but that strategic work has not been completed.  The proposal is of a scale and nature that would potentially undermine or prejudice the outcomes being sought by the scheme.
Servicing and infrastructure
89	We have referred to decision guidelines in clause 35.07-6, policies in clause 21 including clause 21.08-4, and clauses that address infrastructure planning, design and coordination.  An emphasis is on a coordinated approach to the location, layout, siting and timing of the development and provision of infrastructure.
90	We accept Ms Supplitt’s evidence that the subject land can be developed so that the service station is above the 1:100 year flood level; that it can be connected to sewer; and that it can be engineered to contain its own stormwater and to connect to a legal point of discharge.  
91	However, the flood management and drainage works have multiple unknowns, as Ms O’Reilly states.  She submits there is a lack of detail regarding drainage impacts and how other surrounding lots in the future may be provided for, given this development is proposed in isolation from the development of adjoining land.  
92	We agree.  There is an estimate as to the amount of fill required and what final levels will be, but Ms Supplitt stated that the potential area of fill “is still unclear”.   Also, earlier in these reasons we referred to the addendum evidence in relation to the western retarding basin and the conceptual stage at which its consideration is at, without any specific proposal for works on Lot 2, Lot 3 and/or Lot 4 (or beyond).  
Response to Farming Zone and associated policies
Clause 35.07 and associated policies
93	State policy seeks to protect the state’s agricultural base by preserving productive farmland.  Strategies include:
•	Avoid permanent removal of productive agricultural land from the state’s agricultural base without consideration of the economic importance of the land for the agricultural production and processing sectors; 
•	Protect productive farmland that is of strategic significance in the local or regional context;
•	Protect productive agricultural land from unplanned loss due to permanent changes in land use; 
•	Prevent inappropriately dispersed urban activities in rural areas;
•	Protect strategically important agricultural and primary production land from incompatible uses.
94	Local policy also seeks to preserve productive agricultural land and to protect and maintain agricultural land.  It aims to enhance the rural based economic activity in (among others) agriculture.
95	Having regard to the purpose of clause 35.07, as well as state and local policies, the scheme seeks to encourage the retention of productive agricultural land and ensure that non-agricultural uses do not adversely affect the use of land for agriculture.  The decision guidelines in clause 35.07-6 are under headings of general issues, agricultural issues and impacts from non- agricultural issues, environmental issues and design and siting issues.  We have considered these fully as relevant to the proposal.
Land capability
96	The subject land and adjacent properties are in the FZ and, consistent with the zone purpose, are used for farming purposes today.  There are rural living lots in the environs such as along Gordon Road.
97	Mr Phillips’ expert evidence provides an agricultural assessment of the impact of removing 3.68ha of general farming land from agriculture and using that land for the construction and operation of a service station.
98	Several different land capability classification systems are referred to in Mr Phillips’ evidence. We do not need to analyse and distinguish between them at any length because it is clear that the subject land is properly described as productive agricultural land.  The land is suited to grazing. Mr Phillips indicates that the land is at the lower end of the descriptor “productive agricultural land” given its poor drainage (surface and within the soil profile) and susceptibility to prolonged waterlogging.  Mr Phillips’ evidence is that these constraints limit productivity levels and enterprise versatility.  Existing development patterns in the RIA limit agricultural potential notwithstanding Mr Phillips accepts that the land could be improved with enhanced management.  That is, current productivity levels of the land may be altered by changes to farming practices.
Response to the FZ decision guidelines
99	The decision guidelines in clause 35.07-6 provide the basis for assessing the proposal’s response to the FZ.  
100	The Council submits that, at least for the short to medium term, the development and use of the subject land for a service station will remove it from agricultural use.  Ms Lane submits the applicant has not demonstrated how the proposal will support or enhance any form of agricultural activity.  Respondents also oppose the permit application on the basis of the loss of productive farmland, with potentially more loss via Lots 3 and 4.
101	Having considered the decision guidelines, and submissions and evidence relating to them, we find:
•	The proposal would permanently remove land from agricultural production.  This is Lots 1 and 2 but potentially involves additional land which was not assessed as part of Mr Phillip’s statement of evidence.  
•	We note Mr Phillips’ evidence that technically the farming use may be capable of being reinstated to the subject land if a service station is built, however, the extent of works including earthworks and infrastructure means this would be improbable.
•	Increasing the size of land required for the proposal and associated works reduces the balance lot.  Increased fragmentation would work against an agricultural ongoing role.
•	The proposed use would provide a service to the community but does not specifically support or enhance agricultural production.
•	We do not consider that there would be a fundamental incompatibility with adjoining and nearby land uses, particularly because of the buffer created by landscaping.  
•	We accept Mr Phillips’ evidence that the proposal would not have a direct negative impact on adjoining and nearby agricultural uses given the mounding, landscaping and vegetation buffer proposed. Neighbouring agricultural use is low intensity grazing activity and unlikely to be impacted by a service station operation.
Other policy considerations
102	The acceptability of the loss of productive agricultural land must consider other relevant matters.  These include:
•	Another purpose in clause 35.07 to encourage the retention of employment and population to support rural communities.
•	The role of the Princes Highway as a main road corridor.
•	The strategic context set by the scheme for this location.
103	We accept Mr Milner’s evidence that there is a strong expectation of an urban future to extend Yarragon to the west, particularly when the scheme refers to the future zoning and sets a town boundary.  As Mr Milner states, the scheme earmarks the area as a future residential zone and as a RIA; this raises expectations that farmland will be lost to other land uses.  That is the case even though there is no certainty as to what outcome will emerge from strategic work that is expected to determine the future of the land and give effect to that through (for example) a scheme amendment.
104	We agree with Mr Milner that there is a planned loss of farmland in this location.  As we have already referred to, the BBSMP itself states that the presence of high quality agricultural land is an identified constraint but not one to prevent consideration of future urban expansion through the investigation of future urban growth areas.
Conclusion
105	For the above reasons, we do not consider the proposal is an acceptable response to policy for Yarragon as set by the scheme.  We find the loss of productive agricultural land is being planned as part of the town’s development.  However, the proposal is inconsistent with the strategic directions for Yarragon and, if approved, has the potential to undermine future planning for the township.  Servicing and infrastructure are not adequately resolved.  
Are the design and layout acceptable in terms of town character and Yarragon’s identified western gateway?
106	Among the issues raised in respondents’ submissions about the design of the proposal are:
•	The size of the proposal relative to the township (and town centre) and its consequent dominant visual impact.
•	Its scale and form that contrast with the village’s fine grain character and charm, to which DDO5 seeks to manage.
•	The extent of hard surfacing and built form (11,112m2) that create an unwelcome intrusion into the landscape, impacting on views to the south towards the Strzelecki Ranges and affecting open vistas.
•	The creation of a large urbanized development on the town’s edge and western gateway that will not be attractive and welcoming.
•	Whilst landscaping and attempts at muted toning of building materials are proposed to be employed to assist the setting of the development, the proposal would unnecessarily draw attention to itself. Illuminated signage will also add to this impact.
•	The visual impact of a 95 metre addition to the acceleration lane west of the town gateway and extending west of Gordons Road (works required by the road authority).
107	Mr McGurn states the proposal precedes the adoption of a Design and Development Overlay that would guide the desired built form outcomes. The service station use and development may undermine the future desired character of the RIA.
108	Mr Milner disagrees.  He states the proposal has meritorious features that will ensure the development makes a positive response to the gateway and future urban setting.  Among these are the substantial setbacks for landscaping as well as the potential for the drainage basin to be a feature of the landscape treatment.  Mr Milner’s evidence is the development would appear and be experienced as a small cluster of built form in a dominant landscape and is an appropriate response to the gateway and rural character.
109	As indicated earlier, local policy guides location of commercial uses in Yarragon and, more broadly, local policy states:
Strip development along major highways and roads should not be supported. The appearance of the environment is important to the tourism industry.
110	The proposal does not accord with the broad directions.  
111	The development would depart from the village character and would occur before the desired gateway treatments for Yarragon have been formulated.  By way of example, and separate to built form and landscape outcomes, strategy 1.7 in clause 21.07-3 that refers to a consistent signage theme and comprehensive directional and tourist signage system, complementing the Latrobe regional signage system.  Yarragon gateways might be part of it.
112	We consider that if a large service station was found to be an acceptable use on the subject land, the development associated with it is what one would expect to see, including its built form, hard-standing areas, lighting, signage and access/egress lanes.  The extent of earthworks and fill would create a constructed form, with some uncertainties remaining about these works as we have indicated.  We accept, however, that the proposal offers generous setbacks and landscaping opportunities.  
Would there be an unacceptable economic impact on the township?
113	Local policy aims to establish and maintain a strong, dynamic economy and employment base by building on the comparative advantages in primary industry, timber, transport, tourism, education, manufacturing, service industry and commerce.  A strategy is to support Trafalgar and Yarragon as important centres for manufacturing, service industries and the tertiary sector.
114	Yarragon has a clear tourism role while the Highway has a broader tourism and economic function.  Local policy highlights the important role of transport.  An objective is to develop an appropriate multi-modal transport network that works effectively, with positive outcomes for amenity, safety and environmental values.  Strategies include to support better access to tourist facilities and support the Princes Highway and rail transport corridor as an efficient transport facility linking the main urban areas of the Shire with Melbourne and neighbouring employment centres.
115	Some respondents are concerned the significant tourism offering of the town will be compromised.  Ms Richards submits this will have a negative impact on the local economy which depends on the passing trade to provide nearly half its visitor numbers.
116	Mr Quick’s evidence examines the economic impacts of the proposal, including in relation to the Yarragon town centre	 and, more broadly, considering other service stations in transport corridor from Longwarry to past Moe.  He summarises his opinions as:
The proposed Yarragon service station, including a convenience store and dedicated truck parking, will introduce a new offer to not only the town, but along an extensive stretch of the Princes Highway/Freeway. This will result in new customers stopping at the service station who would not otherwise stop in Yarragon. 
On average, 25,000 vehicles pass through Yarragon daily. This level of traffic is significant and presents an opportunity to support the proposed service station without materially impacting the ability of existing facilities in Yarragon to also capture a share of a large potential market. 
The nature of the retail offer in the Yarragon Town Centre is differentiated from the convenience role of the new service station. Yarragon Village not only serves a role for local residents, but has developed as a destination along the highway, encouraging passing traffic to stop through a combination of homewares, giftware, antiques, fashion and various sit-down dining options. 
Given the differentiation of the offer proposed at the service station (only a convenience store and no substantive food offer) and the Yarragon Town Centre, the assessment presented in this report finds that the average impact on the Town Centre will be immaterial as a result of the proposed development (1.4% turnover reduction). This level of impact is well within expected bounds within a competitive market and will not undermine the role played by the existing retail offer, nor result in a reduction in the range of goods and services available to locals and passing travellers. 
In fact, the addition of the new service station will ultimately increase the range of facilities available in Yarragon. It is estimated that the total retail turnover retained by retailers in Yarragon (including the new facility) will increase by 5.6%, in addition to increased petrol sales across what will then be two outlets in Yarragon compared to the current one. 
Other economic-related benefits of the proposed development include an increase in the number of jobs available for residents in Yarragon; additional economic value added to the local and state economy through construction and ongoing operations; consumer benefits relating to choice, convenience and price competition; and improved driver safety leading to reduced accident costs.
117	Ms Dunstan reiterates some of the potential road safety benefits, as relevant to her areas of expertise.  Mr Milner states the proposal supports Yarragon’s strong local service role (including tourism) and the important role of the Highway in the economic, social and cultural development of the Shire.  We note that this is consistent with the Gippsland Regional Plan 2020, tendered by Ms Hicks.
118	Respondents challenge the expert evidence with respect to information such as the availability and operating hours of local businesses, potential employment creation, and the opportunities and range of services for truck drivers (such as rest stops close to Yarragon and with its existing 24 hour service station on the eastern side of the town).  Mr Lindsay refers to conversations with trucking companies in support of his submission.
119	The economic assessment involves many variables.  Taken as assessed in the evidence, the proposal would not have a significant or material negative impact on existing businesses in Yarragon.  There are potential benefits to be gained.  These findings are a consequence of the fact that the proposal is a different offer to many existing businesses.  While some do not consider the proposal complements the town’s role, the evidence does not indicate that the town will suffer economically as is feared.
120	We accept there are other opportunities for fuel, refreshments and rest opportunities in the near and wider area.  That does not persuade us that the proposal should be rejected for this reason.  The material and commentary before us do not, per se, demonstrate an expressed need for the proposed facility.  However, the lack of need is seldom, if ever, a consideration against the grant of a permit, and the establishment of need is not to be regarded as an essential requirement.  We accept the proposal will provide a service to Highway users and the local community.
Would there be unreasonable adverse off-site amenity impacts?
121	Ms O’Reilly submits the proposal raises multiple amenity concerns.  They include: 
•	The level of illumination of the site.
•	Maintaining the rural landscape amenity and open views of the surrounds.
•	The introduction of noise (including trucks slowing/breaking), light, movement and odour into land with rural amenity. 
122	Ms O’Reilly refers to a substantial number of residential properties with views towards the development. She submits the extensive urban nature of the proposal will destroy their otherwise relaxed rural residential amenity. 
123	Both expert planning witnesses do not regard the proposal as creating unacceptable off-site amenity impacts.  We agree with their assessments.  The proposal would change the outlook and experience of the land compared with the current grazing use.  However, we agree with the applicant that the service station building, petrol bowsers and canopy are grouped together within the northern and central section of the site and are setback more than 90 metres from the properties located to the south and south-west. Bunds and landscaping would aid in screening buildings, parked trucks and other associated infrastructure.
124	Moreover, an urban future is contemplated for this location and that, too, would bring significant change compared with the existing setting (noting truck movement on the Highway is already part of the experience).  Changes associated with a new residential area would include built form, roads, vehicle movement, lighting and residential-based noise.
Is the proposed removal of native vegetation acceptable?
125	A permit is required to remove, destroy or lop native vegetation, including dead native vegetation under clause 52.17-1. The decision guidelines under clause 52.17-4 direct the decision maker to consider the decision guidelines specified in the Guidelines for the Removal, Destruction or Lopping of Native Vegetation.
126	An assessment was made of the application in December 2019.  There is, however, no clear position from the Department.  It indicates that it did not have sufficient information to provide a response.   Ms Hicks states it may not be a referral authority in the circumstances of this application.
127	This matter is not resolved.  The material to date does not assess the impact on any native vegetation associated with the additional land associated with Lot 3 (or Lots 4/5 if required) or with respect to the roadside (eg. acceleration lane extension).  Consequently, the offset calculated in the December 2019 material may not be accurate.  In saying this, we note the Department refers to the matter as “low risk” but that does not overcome the fact that a full assessment has not been completed to satisfy us that permission should be granted under clause 52.17.
128	Ms Hick’s instructions are that there is no additional native vegetation removal associated with an extended acceleration lane and the potential use of Lot 3.  We understand the instructions.  This is not, however, documented nor the subject of the assessment.  
what findings are made on other matters?
Traffic and road safety
129	The application plans provide an acceleration lane allowing motorists to exit the site onto Princes Highway.  The speed limit on this main road is 110km/h. Currently this egress lane allows for the acceleration of vehicles to reach 80km/h, 30km/h below the speed limit passing the site.  The referral authority requires that the lane be extended to allow for motorists to reach the speed limit prior to entering Princes Highway.  Ms Dunstan agrees with this position.  The extension would be an additional 95 metres.
130	Notwithstanding the expert traffic evidence, Ms O’Reilly states that her clients have significant concerns raised in relation to traffic issues likely to be generated by the proposal.  This is particularly in relation to east-bound vehicles U-turning to obtain access to the site and then returning back along the Princes Highway in an easterly direction. 
131	We appreciate the basis of this concern as there is no service station on the north side of the Princes Highway through Yarragon for east-bound vehicles.  Vehicles can legally turn into the United facility on the south side of the Highway.  Ms Dunstan’s evidence is that the U-turn vehicle movement could be done to access the subject land but Condition 9 contained within the referral comments from the Department of Transport requires ‘No U-Turn’ signage to be installed at the Hazeldean Road intersection. This will prohibit U-turns. Ms Dunstan is satisfied there will not be a detrimental impact to the safety or operation of Hazeldean Road or at its intersection with Princes Highway.  We can envisage unlawful U-turns, however, we accept the professional assessments of the road authority and expert traffic evidence.
132	We accept Ms Dunstan’s evidence that the internal layout of the site is acceptable in terms of vehicle movement and parking arrangements.  Reference to excessive parking in some statements of grounds is not, on its face, problematic.  There is no parking rate under clause 52.06 for a service station and it appears the responsible authority has been satisfied on this matter.
133	Ms O’Reilly submits pedestrian/cycle access/connections to the site from the town centre should be provided given that the proposal has the potential to draw local trade.  Ms Dunstan indicates this could be accommodated in the design including within the site.  We accept this evidence.
Signage
134	Unlike the previous application, the proposal includes floodlit and business identification signage.  Ms Hicks explains how the signage design has sought to comply with the permitted amount and type of signage in the FZ.  Ms Lane disagrees that this is achieved, hence the permit conditions proposed by Council to modify the proposed signage. 
135	Given our conclusion in this proceeding below, the legal question as to the proposal’s compliance with clause 52.05 is not required to be answered.  Nor do we need to address permit conditions relating to signage.
Bushfire
136	This matter has not been canvassed through the current hearing.  Ms Hicks relies on evidence relating to bushfire risk that was previously filed, served and tested in the previous proceeding.  It was also lodged as part of the materials relied upon in this application. 
Conditions
137	Given our overall conclusion, we also do not set out findings on matters raised through the draft ‘without prejudice’ conditions, such as land consolidation and what might happen if the service station use ceases.
IS THERE A NET COMMUNITY BENEFIT?
Parties’ positions
138	Mr Milner’s evidence concludes: 
… a service station on the highway and located close to a town in the nominated strategic growth corridor is likely to positively contribute to the overall wellbeing of the community.
139	Ms Hicks relies on his evidence, and that of other expert witnesses, in support of her submission that the proposal achieves a net community benefit. The proposed service station will provide the travelling public, including tourists and truck drivers, with a useful facility on a strategically vital highway and freeway.  Ms Hicks summarises benefits including:
•	The economic benefits identified in Mr Quick’s evidence including employment, improved choice, price competition and convenience, without adverse impacts on Yarragon.
•	The provision of facilities that can serve the local community.
•	The provision of a rest stop, with a range of facilities, to address issues of safety and driver fatigue.
•	A well-planned and site responsive design, one of the best that Mr Milner states that he has seen given its generous setbacks and landscaping that provide a positive gateway to the town.
•	A facility that supports the local service role of Yarragon.
140	Ms Hicks acknowledges some disbenefits but submits these do not outweigh the benefits.
141	Respondents do not agree.  Ms Richards states the development will provide negligible community benefit as all the services it proposes are already provided – with many choices in Yarragon and within 50km for the needs of large truck.  Mr Lindsay makes similar submissions.  
142	Ms O’Reilly submits the proposal does not achieve a net community benefit in that: 
•	It permanently removes land from agricultural use.
•	It is outside the township boundary which is to be retained in its current position in the short to medium term but is also designated as important as an investigation area, occupying a significant site which could potentially provide for the towns future residential expansion post 2026 (indicative timing).
•	It is located outside the commercial area of the town, in the opposite direction to where commercial growth is directed (to the east not west) and will therefore have a physically distanced relationship with the commercial element of the township itself, being stand alone and providing no discernible benefits in terms of cross selling or contributing to the economic prosperity of the town centre.
•	It does not provide such a significant economic contribution to the local economy to outweigh the disbenefits identified. 
•	It will provide a negligible increase in driver safety, competition, convenience and facilities for Princes Highway motorists, including trucks, given the existing supply of offerings. 
•	Has little community support. 
143	The Council’s conclusion is the proposal lacks any strategic support both now and into the foreseeable future as expressed in the Scheme.  “This is fatal” and the proposal fails to achieve an acceptable planning outcome.  Ms Lane submits the proposed service station is not appropriate because:
•	The subject land is strategically important as a residential investigation area for the town’s future expansion.
•	The size of the proposal will direct a significant portion of the investigation area into a non-residential use.
•	The application is premature in a strategic sense and does not constitute order planning. 
Tribunal findings
144	We recognise the proposal’s potential benefits to the health, well-being and safety of Princes Highway travellers including the trucking industry.  We have given weight to this and other benefits identified by the applicant and in expert evidence that supports the proposal. 
145	However, these benefits do not override the conclusions evident in our reasons with respect to the orderly planning and development of Yarragon township.  The proposal does not enjoy strategic support in this location.  The scheme articulates the importance of coordinated and orderly planning for this township, including the development of infrastructure.  The planning process guided by the scheme seeks to ensure that this is dealt with in advance and in a coordinated and orderly way.  For reasons given above, the scale and nature of the proposed use and development pre-empts this process and its outcomes and has the potential to undermine the directions for Yarragon expressed in the scheme.
146	We find the proposal does not achieve an acceptable outcome.  
WHAT IS THE TRIBUNAL’S CONCLUSION?
147	A permit is not granted and no permit is to issue.

Margaret Baird	Philip Martin		
Presiding Senior Member	Senior Member