VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P602/2021
Permit Application no.WYP12610/20 	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987; Activity Centre Zone; Clause 52.27 – licensed premises policies; Proposal for bottle shop and packaged liquor licence; Urban Design, Car parking and traffic; Signage.	

Applicant	Princes Wattle Pty Ltd	

Responsible Authority	Wyndham City Council	
Respondents	Brain W Gosney, Caroline Mc Loughlin & Renee Brenner	
Referral Authority	Head, Transport for Victoria	

SUBJECT LAND	18-20 Princes Highway and part 22 Princes Highway
WERRIBEE VIC 3030	

HEARING TYPE	Hearing	

DATE OF HEARING	28 & 29 September 2021	

DATE OF ORDER	19 October 2021	

CITATION	Princes Wattle Pty Ltd v Wyndham CC [2021] VCAT 1214 	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and 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:	Cera Stribley Architects	
•	Drawing numbers:	Rev B
TP-0000 – TP-0003, TP-1001 – TP1004, TP-2000 – TP-2003, 
TP-3000 – TP-3006	
•	Dated:	6 September 2021	
•	Document:	Acoustic Report prepared by WatsonMossGrowcott, dated September 2, 2021.	

2	In application P602/2021 the decision of the responsible authority is affirmed.  
3	In planning permit application WYP12610/20 no permit is granted.

Tracey Bilston-McGillen
Member			

Appearances
For applicant	Mr Rory O’Connor, Solicitor, Hall & Willcox.  He called the following witnesses:
•	Ms Charmaine Dunstan, traffic evidence, Traffix Group.
•	Mr Travis Finlayson, town planning evidence, Ratio Consultants.	
For responsible authority	Mr John Rantino, Solicitor, Maddocks.  He called the following witnesses:
•	Ms Bonnie Rosen, social impact evidence, Symplan.
•	Mr Alistair Campbell, urban design evidence, Hansen.	
For referral authority	No appearance.	
For respondents	Ms Caroline McLoughlin appeared in person.
Mr Brian Gosney, appeared in person.
Ms Renee Brenner, appeared person.	

Information
Description of proposal	In broad terms the proposal includes:
•	Use of the proposed building for the purposes of a shop (Dan Murphy’s).
•	A two-storey building with an overall maximum height of 12.6 metres, containing a shop floor and mezzanine component for ancillary offices. 
•	A loading bay for trucks entering via Wattle Avenue. 
•	Thirty-two carparking spaces along the western, southern, and eastern boundaries, including one mobility carpark and three ‘click and collect’ spaces: and
•	Five bicycle spaces, including three for staff and two for customers.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Wyndham Planning Scheme	
Zone and overlays	Activity Centre Zone Schedule 1 (ACZ1).
Environmental Audit Overlay (EAO).
Parking Overlay (PO).	
Permit requirements	Clause 37.08-5.  A permit is required to construct the buildings and construct and carry out works.  (The use of the site as a shop is permitted as of right).
Clause 52.06 A permit is required for a reduction in the number of carparking spaces. 
Clause 52.27. A permit is required for the sale of packaged liquor requires.
Clause 52.29.  Princes Highway is a Road Zone Category 1 road.  Alteration of access to that road requires a permit.	
Key scheme policies and provisions	Clauses 11.3-1S, 13.05-1S, 15.01-1S, 15.01-2S, 15.01-5S, 15.02-1S, 17.01-1S, 17.02-1S, 21.01, 21.06, 21.08, 22.08, 37.08. 45.03, 45.09, 52.06, 52.27, 52.29, 53.18 and 65.01.	
Land description	The subject site is located on the south-eastern corner of the intersection of Princes Highway and Wattle Avenue, with access from both roads.  
The site primarily comprises of vacant land at 18-22 Princes Highway, which is 2,312m2 and includes a portion of 22 Princes Highway, which is occupied by a single storey building housing a Telstra office.
The subject land, forms part of the Werribee Principal Activity Centre with:
•	Council offices and a Civic Centre on the opposite side of Princes Highway, to the north; 
•	the East Werribee Employment Precinct, to the east; 
•	residential dwellings on Wattle Avenue and Manta Court to the south, including four dwellings that share boundaries with the subject land; 
•	additional dwellings on the opposite side of Wattle Avenue, to the west; and 
•	the Werribee Town Centre, further to the west.	
Tribunal inspection	I inspected the site and surrounds.	

Reasons
What is this proceeding about?
1	This is an application for review against the failure of the Wyndham City Council (Council) to refuse to grant a planning permit for the construction of a bottle shop, reduction in the car parking requirement, use of land for the sale of packaged liquor and alteration of access in a Road Zone Category 1 at 18-20 & 22 Princes Highway, Werribee.  Council later advised that they would have refused the proposal on a number of grounds that relate to matters of urban design, impacts on amenity, car parking design and impacts of the licensed premises.
2	The objectors supported Council’s refusal of the proposal and raised concerns relating the proposed traffic arrangements, impact on the local street network and provision of car parking spaces, the social impact of the use in the area and the overall design of the building.
3	The applicant for review (applicant) submitted that the amended plans respond appropriately to the context of the land, demonstrate a high level of compliance with the Wyndham Planning Scheme (scheme), and that a planning permit should be issued subject to conditions.  
4	The key issues identified by the parties related to matters of the social impact, traffic and urban design. 
5	Having regard to the submissions, evidence and the planning scheme, I have decided to affirm the decision of the Council and refuse to grant a planning permit.  I am refusing this proposal as the proposed design fails to achieve policies that guide the development of the activity centre and this site.  I find that the proposed Dan Murphy’s store does not align with the vision of the planning scheme.  I also make some observations about a number of other issues including the social impact of the proposal and traffic and car parking but make no conclusive findings as I have refused the proposed development primarily for built form and policy reasons.  My reasons follow.

the proposal

Figure 1 Proposed layout of proposed Dan Murphy’s store.
6	The proposal includes the following components:
•	The construction of a two-storey building comprising a Dan Murphy’s bottle shop at ground level (approximately 1067 square metres of floorspace) with ancillary office space (approximately 215 square metres) above.
•	Use of land for the sale of liquor. 
•	The building is sited to abut the road frontages to both Princes Highway and Wattle Avenue, and the ground floor level including clear glazing at street level to activate these frontages.
•	Loading bay at the rear of the building for deliveries and waste storage areas, with an awning proposed above that wraps around the building above the footpath to both Princes Highway and Wattle Avenue.
•	The maximum building height is proposed at 12.6 metres, with a setback of 11 metres (approx.) from the rear boundary. 
•	Car parking is located to the north-east and rear of the proposed building with 32 car spaces provided, plus three additional click and collect car spaces. 
•	A new 2.5 metres high rear boundary acoustic fence is proposed along the southern boundary with a 500mm angled 45-degree extension; 
•	Five bicycle spaces are provided on site, being two staff spaces and three visitor spaces. 
•	Access to the site is proposed via the existing crossover of 22 Princes Highway, with an additional double crossover proposed via Wattle Avenue. 3.4 
•	The operating hours for the Proposal are as follows: 
o	9am to 9pm Monday to Saturday. 
o	10am to 9pm Sunday. 
o	Deliveries are intended to occur Monday to Sunday. 
•	The Proposal will employ up to 25 full time staff.
7	I understand that there is a current planning permit (WYP8977/16.01) for an office development including a café at the ground floor.  The development provides 89 car spaces to the rear of the site and within a basement.  The applicant put that the current permit has not been acted upon because there is no market for the office development.
Physical context

Figure 2: Review site. 
8	The review site is located on the corner of Princes Highway (Synnot Street) and Wattle Avenue, in Werribee.  It comprises of two parcels including 18-20 Princes Highway and part of 22 Princes Highway.  The land at 18-20 Princes Highway is vacant, with no existing crossover provision, to either frontage.  The land at 22 Princes Highway comprises a single storey commercial building occupied by Telstra for telecommunication purposes.  Vehicle access is provided via a crossover to Princes Highway at the western extent of the land, just beyond a bus stop.  The site is generally flat and comprises of an easement along a portion of its rear boundary.  The surrounding area comprises of residential development to the south.  
9	The site is located at the end/start of the Werribee Activity Centre (WAC) and is located with close proximity to the future East Werribee Employment Precinct.  The site forms part of the Principal Public Transport network and is approximately 1 km walking distance from the Werribee train station.
10	This is a highly exposed site due to the width of the intersection partly due to the recent intersections works including the rail overpass.
Wyndham Planning scheme
11	What needs a planning permit?
i	To construct the buildings and construct and carry out works in the Activity Centre zone under clause 37.08-5. 
ii	A permit is required under clause 52.06 for a reduction in the number of carparking spaces. 
iii	The sale of packaged liquor requires a planning permit by operation of clause 52.27. 
iv	Princes Highway is a Road Zone Category 1 road. Alteration of access to that road requires a permit under clause 52.29.
12	A permit is not required for the use of the site as a shop.
Zone provisions
13	The Site is within the Activity Centre Zone Schedule 1 (ACZ1).  It is within a precinct identified as an ‘Increased Intensity Mixed Use Area’.  The purpose of the ACZ1 is to, amongst other things, encourage a mix of uses, intensive development of the activity centre, is a focus for business, shipping, working housing, community facilities and create good urban design.  

Figure 3: Zoning of review site and surrounding properties. Source C Dunstan evidence statement.

14	A review of the zoning plan details that there is a break in the ACZ along Princes Highway with a residential zone.  These lots back on to Princes Highway and front Larose Place.  Whilst I might find the zoning curious and disruptive to the activity centre zoning, it is not my role to question its appropriateness but to implement the provisions of the planning scheme, and in this case, the site is zoned AC1.
15	The ACZ1 includes a number of land use and development objectives to be achieved.  The site forms part of Precinct 4B of the Activity Centre which forms part of the Synnot Street South precinct.  
16	The preferred building height for this precinct is 8 metres to 18.5 metres with a preferred building setback of 0 metre front and side setbacks to a height of 8 metres at street frontages.  It is further stated that where land adjoins residential zones land, the standards for side and rear setbacks specified in clause 55.04-1 are to be met.  It is noted that whilst the adjoining properties to the south/rear are residential properties, they are zoned Commercial 1 Zone (C1Z).

Figure 4: Extract of ACZ1 Werribee City Centre Framework Plan.

Particular provisions
Clause 52.27 – Licensed premises
17	The purpose of clause 52.27 is:
•	To ensure that licensed premises are situated in appropriate locations.
•	To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

18	Planning permission is required under clause 52.27 to use land to sell or consume liquor if a licence is required under the Liquor Control Reform Act 1998. A packaged liquor licence is required under that Act and therefore planning permission is also required to use land to sell liquor.  Under this provisions, the following decision guidelines must be considered, as appropriate, in determining to grant a permit:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.
•	The impact of the hours of operation on the amenity of the surrounding area.
•	The impact of the number of patrons on the amenity of the surrounding area.
•	The cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.
Other relevant documents
Practice Note 61
19	Ms Rosen in her evidence, referred to Planning Practice Note 61 Licensed Premises: Assessing Cumulative Impact dated June 2015.  This Practice Note is intended to guide the assessment of cumulative impact having regard to clause 52.27 Licensed Premises.  It is a document that is most relevant to proposed licensed premises that operate after 11pm and is in a cluster of licensed premises.  Ms Rosen submitted that it was her opinion that the application of the Practice Note is of limited utility in this case as the bottle shop will not operate after 11pm, it is not located within a cluster of licensed premises and accessibility to the town centre that contains several clusters of liquor licences is limited (based on the assessment that the site is within an area that is highly car dependent.)
20	Having made those conclusions, Mr Rosen did note that she considered it necessary to use the following factors in the Practice Note during her assessment of the potential cumulative impact of the proposal:  
•	any cumulative impact assessment already undertaken by the responsible planning authority 
•	proximity to sensitive uses (for example, schools, kindergartens, or drug or alcohol treatment facilities) 
•	activity mix (the balance between licensed premises and other uses) 
•	existing levels of local amenity 
•	the number and types of existing licensed premises in the area
Other Council documents
21	Werribee City Centre Structure Plan, 2013 prepared and adopted by Council in 2013. This is not part of the planning scheme but provides the basis for the Activity Centre Zone provisions. 
22	Urban Design Framework Plan – A vision for the Princes Highway / Geelong Road Corridor, adopted by Council in July 2016.
Planning policy
23	A number of planning policies were referred to by the parties in a general sense including policies relating to activity centres, urban design, diversified economy, business and out-of-centre development.  At the local level, I was referred to policies such as 21.06 ‘Built Environment and Heritage’ and 21.08 ‘Economic Development’.
24	Clause 21.08 nominates Werribee as the Principal Activity Centre with its function to be a vibrant city centre that takes advantage of its connection to the Werribee employment precinct.  The Werribee Centre Activity Land Use and Built Form Map identifies the site as being within a Proposed Increased Intensity Mixed Use Area and a Potential Key Development Site.
Discussion of key issues
Design

Figure 5: Render of proposed building.  

25	A key consideration is the proposed design.  It is therefore necessary to review what the planning scheme inform us of the vision for the site?  It tells us:
•	Map 6 – Werribee City Centre Activity Land Use and Built Form Map at clause 2108 identifies the site as within an Increased Intensity Mixed Use Area.  The site is identified as a Potential Key Development Site.  An *asterix is provided within the centre of the Princes Highway identify ‘Gateways/Entry Points’.  
•	The site is in the ACZ1 ‘Werribee Principal Activity Centre’.  The Framework Plan Werribee City Centre nominates the site within an Increased Intensity Mixed Use Area.  It is also noted (and discussed below) that an *asterix is provided within the centre of the Princes Highway identify ‘Gateways/Entry Points’.  A land use and development objective to be achieved includes:
To intensify street level activity by: 
•	Encouraging a mixture of land uses that generate high levels of activity to locate at ground level along street frontages, 
•	Encouraging residential, commercial and other land uses that generate low levels of pedestrian activity to locate either above ground level or behind street-facing active land uses, and
•	Integrating public and private land uses.
•	Other built form objectives of the ACZ1 include:
Built Form objectives 
•	To encourage exemplary architecture and innovative building design. 
•	To achieve engaging, high quality, accessible and environmentally sustainable development. 
•	To achieve a built form and urban fabric which features ‘fine-grained’ elements, such as narrow ground level shop-fronts, articulated facades, and regular openings/entrances to the street. 
•	To create a comfortable, accessible, attractive, human-scale built environment at street level. 
•	To provide a generous and continuous overhead cover to footpaths along active street frontages. 
•	To ensure that new development provides passive surveillance from upper levels, and addresses public spaces including the Werribee River and Wyndham Park. 
•	To encourage tall buildings on key/gateway sites to improve legibility of the urban form, and ensure that new built form on these sites is of a high architectural standard. 
•	To encourage higher density development. 
•	To achieve an appropriate built-form transition to any adjoining residential zoned areas through the height, setback, scale, massing and detail of new development.
Clause 4.4 Design and development includes:
Design and development 
Building design New buildings and works should meet the following design criteria: 
•	Buildings should be designed to a high architectural standard. 
•	Buildings should be designed to respond to their solar orientation. 
•	Buildings should be designed to address street frontages and respond to their urban context. 
•	Buildings with ground-level frontages to streets, pedestrian areas and/or passive open spaces should contribute to the appearance and function of these areas by providing:
•	At least 60% of the street frontage as transparent entries or display windows.
•	Clear glazing (tinted, or obscured glazing should not be used) with any security screens open in design and located behind glass in windows. 
•	Generous and continuous overhead cover to footpaths (extending approximately 2.5 metres from the building façade) unless it is demonstrated that the particular circumstances do not require it. – 
•	Direct access from the footpath to ground level premises with minimal change of level; (doorways should be automatically opening and not require steps to be traversed). 
•	Floor to ceiling heights at ground level of a minimum of 3.5 metres to accommodate changes of use over time.
•	Building height.  Multistorey development is encouraged, in line with the objective for growth and intensification of the Werribee City Centre.  
•	The site is located within Precinct 4 - Synnot Street South Precinct.  The site is located within sub-precinct 4B with a preferred building height of 8 metres to 18.5 metres and preferred building setback of 0 metre front and side setbacks to a height of 8 metres at street frontages.  The precinct guidelines include:

•	Ground level active frontages to Synnot Street should be maximised.
•	Opportunities for pedestrian and vehicle connections through to Synnot Street from the street south of Synnot Street should be maximised. 
•	Where possible, car park entries should be from the streets located south of Synnot Street rather than directly from Synnot Street. 
•	New development within 30 metres of residential zoned land should provide an appropriate built-form transition to adjoining residential zoned areas through the height, setback, scale, massing and detail of new development, as demonstrated by an Urban Context Report and Design Response. 
•	New development with a boundary adjoining residential zoned land should meet the standards for side and rear setbacks in Clause 55.04 – 1 and the standards for overshadowing in Clause 55.04 – 9. 
•	New development at 1 Tower Road is to be sensitively designed to ensure the prominence of the historic water tower.
26	The above review of planning policies and zoning provisions informs me that the site is highlighted as a potential key development site, located at the entrance to the activity centre, has a permissible height between 8 and 18.5 metres, seeks activated frontages and encourages exemplary architecture, innovative building design and environmentally sustainable development.  
27	Council submitted that the proposed building fails to provide for good urban design and built form and the proposal is not a mixed-use development.  It was the evidence of Mr Campbell that the proposed building:
•	Is a poor urban design outcome which fails to successfully respond to or acknowledge the site’s important ‘gateway’ position at the eastern approach to the Werribee Activity Centre.  
•	Does not comprise a mix of uses as sought by policy. 
•	Does not present an appropriate built form outcome at this prominent corner and essentially turns its back to the intersection and Princes Highway corridor, providing a bland architectural response which does not sufficiently activate or engage with the streetscape frontages. 
•	Fails to appropriately mitigate off-site amenity impacts associated with its customer car park to the abutting dwellings and their various secluded private open space (SPOS) conditions to its rear interface.
28	The applicant submitted that this building is different from a standard Dan Murphy’s store, an architect has been engaged and there has been an effort to provide a high level of design for the building.  The Applicant relied on the evidence statement of Mr Finlayson regarding the acceptability of the built form of the Proposal, having regard to physical context of the Land, and the provisions in the planning scheme.  Mr Finlayson gave evidence on planning evidence matters as well as commenting on urban design elements.  He made the following submissions:
•	The building is appropriate and that whilst the ACZ1 objectives call for tall buildings on key/gateway sites, the site is to the west of the ‘gateway’ nomination.  
•	The lack of a mixed use is not a concern.
•	The building adopts good articulation and visual interest to both the Princes Highway and Wattle Avenue frontages.
29	I am persuaded by Council that the proposed building fails to achieve the policies of the planning scheme as the building that encourage a building that is of high architectural merit and design.  

Figure 6 Street view of review site.  Source Nearmap.

30	There was a great deal of discussion regarding the location of the site and whether or not the site was considered to be a gateway site or a landmark site.  The ACZ1 Werribee City Centre Framework Plan includes an *asterix within the road reserve.  It is not on the site but strangely in the centre of the road at the commencement of the activity centre designation.  The planning provision is unclear as to where the asterix applies to, however what is evident is that at the broad level, the ACZ1 sets the built form objective to encourage tall buildings on key/gateway sites to improve legibility of the urban form and ensure that new built form on these sites is of a high architectural standard.  As identified earlier, the site is located on a highly exposed corner.  The site is at the entrance to the activity centre.  It is a development site located on a key corner due to the recently completed rail overpass.  The site has the hallmarks of a key development site given its location and prominence to the intersection.  
31	The proposed building will not win any architecture awards, but for a big box retailer, it is obvious that there has been some effort in the design.  It is clear that a designer had attempted to improve the built form of a ‘big box retailer.  Despite the attempts at improving the design of a large retail box store, I find the built form, will continue to read as retail box store.  I am persuaded by the evidence of Mr Campbell that the building is essentially a bland box that has been ‘spruced up’ visually with the coloured renders.  It is often put in submission, that design does not have to be optimal, just acceptable.  This principle refers to the decision Rozen v Macedon Ranges SC concerning the development of four dwellings and matters of water quality and landscape and visual impact considerations.  In this decision the observation was made that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes.  It often submitted that the planning scheme only requires acceptable outcomes and that we should not seek anything more.  
32	In the decision Richmond Icon Pty Ltd v Yarra CC & Ors the Tribunal Members discusses the concept of “design excellence” or “architectural excellence’ and make the observation that there is “rarely any useful objective criterial included in the planning scheme to enable a judgement to be made”.  The decision refers to another at Pentas Property Investments Pty Ltd v Port Phillip CC which make the following observation:
From our perspective however, the consideration of design excellence must be focussed entirely on those matters encompassed within the planning scheme, and in particular Clause 19.03(now clause 15.01)  which, in general terms, seeks to “....achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties......”, and which “....take into account the natural, cultural and strategic context of its location”. Issues of individual taste or preference for architectural styles are irrelevant.
33	Having regard to the objectives of clause 15.01 Built Environment and Heritage which promotes excellence in the built environment to create places that are enjoyable, contribute positively to local character and a sense of place and enhance the function, amenity and safety of the public realm, I question why we would accept anything less than high quality where the planning scheme explicitly seeks more.  Why is mediocracy acceptable on a location that has been designated in the planning scheme as a site that is at the gateway/entrance to the activity centre, one where activation is encouraged, one where exemplary architecture is encouraged, one where a height up to 18.5 metres is permissible and on a site that has a high level of exposure and because of this, will have a high visual impact on the intersection.  Within the planning scheme, there is a strong policy basis seeking high quality design including:

•	Buildings should be designed to a high architectural standard. 
•	To encourage exemplary architecture and innovative building design. 
•	To achieve engaging, high quality, accessible and environmentally sustainable development. 
•	To ensure that new development provides passive surveillance from upper levels, and addresses public spaces including the Werribee River and Wyndham Park. 
•	To encourage tall buildings on key/gateway sites to improve legibility of the urban form, and ensure that new built form on these sites is of a high architectural standard. 
(my underlining for emphasis)
34	On my site inspection, I observed a confused intersection dictated by the railway overpass, Council office buildings that are hidden behind vegetation, an allied health building and a vacant site (the review site).  I find that this building will sit prominent to the corner in this context and find the proposal fails to achieve the vision of the planning policies identified above and for the following reasons detailed below.
35	Mixed use:  The proposal is for a shop that sells packaged liquor and internal office space for employees at a mezzanine level.  It is not a mixed-use development.  The ACZ1 policy encourages a mixture of land uses that generate high levels of activity to locate at ground level along street frontages.  Planning policy encourages a mixture of land uses that generate high levels of activity to locate at ground level along street frontages.  
36	Entrance/gateway:  There was much discussion about whether or not this building is a gateway or at the entrance, given the ambiguity of location of the asterix on the framework plans.  What is relevant to note is that the site is located at commencement of the activity centre (there is one site located to its east) and the site is highly exposed due to the recent rail overpass works.  Any development of the site should recognise that the site does have a level of visual prominence.  
37	Planning policy encourages tall buildings on key/gateway sites to improve legibility of the urban form and ensure that new built form on these sites is of a high architectural standard. I am persuaded by the submissions of Council that the proposal does not attempt to fill either of the gateway or connecting functions required of this site.  I acknowledge that the proposed height of 12 metres is within the preferred building height of 8 metres to 18.5 metres, but I have a concern that visually the upper component of the building will read as the backdrop for Dan Murphy’s signage.  As the render details, the most prominent element of the façade is the upper-level green steel.  There was no application for signage submitted as part of the proposal, but I agree with Council that this section of the façade may host some level of signage which I consider would detract from the building façade.  
38	Active frontages:  The frontage addresses both Princes Highway and Wattle Avenue.  Whilst it is recognised that big box retailers do not have the same level of interaction as fine grain strip shopping centre development does, the proposed building should offer more to the street to improve activation sought by the planning scheme.  It is policy to maximise active street frontages.  The proposed building is constructed to the street boundaries and provide a series of windows to both Prince Highway and Wattle Avenue.  To ensure that there is visibility within the building, the applicant agreed to a condition requiring there is no internal displays or advertising blocking the windows.  However, I agree with Council that windows to the street on a large frontage, will fail to read as an activated frontage.  The entrance to the store has been located to the eastern elevation off an internal access road, away from the street frontage.  Arguably it may be visible when driving along Princes Highway but that would be a glimpse.  I do not see how the proposed design maximises ‘active street frontages’.   
39	Sustainable design: Council raised the concern that, whilst the applicant submitted a ‘tick the box’ Sustainable Design Assessment’ as part of the planning application material, it has failed to provide adequate detail for a full assessment to be undertaken.  Council further put that clauses 15.02 and 22.08 generally encourage best practice in sustainable design, having regard to matters including energy efficiency and passive design, urban cooling, and integrated water management.  Whilst this is not a key reason to refuse the proposal, sustainability is an issue that is increasingly becoming more important.  It is a relevant consideration that it is policy in the ACZ1 “To achieve best practice environmentally sustainable design (ESD) within new developments”.  Sustainability should be one of the key considerations in building design.  
Summary
40	It was submitted by the applicant that the building has been architecturally designed and adopts good articulation and visual interest.  Despite the attempts to improve the design of a big box retailer, it is fair to say that when I think of Dan Murphy stores, the buildings and designs do not win architectural awards.  They are essentially a big box retailer with a multitude of signage, sometimes overwhelming the building and surrounding environment.  This building has failed to comply with policies that encourage exemplary or high-quality design, fail to provide a design that provides active street frontages and fails to demonstrate a sustainable development.  

Signage
41	The application for permit does not include any proposal for signage.  It wasn’t disputed in the hearing, that signage generally forms part of the Dan Murphy’s branding.  Council put to me that it would be a reasonable proposition for any decision maker to consider the likely form and impact of signage.  That is, I am entitled to take into account the future signage that may be applied for.  
42	In the hearing, I advised the parties that I was familiar with the Dan Murphy’s signage.  There is a corporate image, and it is generally bold and includes a face with words ‘Lowest Liquor Price Guarantee’.
43	I cannot refuse the proposed development because it has failed to include signage, but I will add that signage is a relevant consideration in this location and on this building.  It would have been preferable that the signage was included as part of the integrated planning package.
Car parking and traffic
44	Council did not object to the proposed reduction in car parking spaces but raised concern with Design Standards 6 and 7 of clause 52.06 submitting that the proposal does not provide for a safe car parking area or meaningful landscaping.  The objectors raised concern about the number of spaces to be provided particularly for staff and with the operation of Wattle Avenue given the recent completion of the rail overpass and the increased traffic using Wattle Avenue.
45	I do not have a concern with regards to the number of car spaces provided but I share Council’s concerns regarding some lack of detail around safety and share the objectors concerns that it is difficult to undertake a full assessment during this current COVID-19 period.  I will address the concerns raised.  
46	Council raised specific concern regarding a proposal by Ms Dunstan to include a condition requiring the carpark to be lit. Council submitted that whilst lighting would improve the safety of the carparking areas, it might have adverse amenity impacts on neighbouring residents.  I do not consider the lack of a lighting plan a reason to refuse the proposal but again question why the detail wasn’t provided as part of the package of information.  
47	Council raised the concern that design criterion of clause 52.06 requires that “the Design of carparking must maximise natural surveillance and pedestrian visibility from adjacent buildings”.  Council put that this criterion has not been satisfied as the building to the carpark presents a continuous blank wall, expect for the entry to the click and collect area.  Buildings have a ‘back’ and in this case it is the correct decision to locate the car parking at the rear and not in the street frontage.  However, I share the concern relating to the lack of surveillance.  There has been no attempt to include any windows, for example, a mezzanine level to provide passive surveillance to the rear car parking area.  I also share Council’s and the objectors concerns regarding the operation of the loading and car park areas.  
48	The rear of the building appears busy with the loading bay, ‘click and collect’, car parking spaces, a trolley bay and pedestrians walking to the entrance.  Refer figure 7 below.  It was the evidence of Ms Dunstan that the site and all the different loading, parking and pedestrian components work.  It was her evidence that staff in such stores know how to manage the arrival of delivery trucks and any potential disruption with ‘click and collect’ parking bays.  What is a new element however is the ‘click and collect’ parking bay for three car spaces.  It was put that ‘click and collect’ has become increasingly popular, so that these parking bays will need to be managed and cleared when delivery trucks arrive.  Again, it was put, staff will manage this.
49	Clause 52.06 Design standard 6: Safety states:
Car parking must be well lit and clearly signed. 
The design of car parks must maximise natural surveillance and pedestrian visibility from adjacent buildings. 
Pedestrian access to car parking areas from the street must be convenient. 
Pedestrian routes through car parking areas and building entries and other destination points must be clearly marked and separated from traffic in high activity parking areas.

Figure 7: Plan extract detailing loading and click and collect arrangements.

50	Clause 65.01 requires the responsible authority to 
The adequacy of loading and unloading facilities and any associated amenity, traffic flow and road safety impacts.
51	I am not persuaded by the evidence that the arrangements of the loading, click and collect car spaces, the remaining car spaces and pedestrian access is safe.  
52	I find that the arrangement at the rear, the lack of surveillance and the increasing popularity of click and collect does not create a safe arrangement.  The pedestrian route through the carpark adjoins the loading bay and the click and collect bays, with no surveillance from the rear of the building.  This is a new development, it is not an old supermarket or other type of store where the competing needs of loading, car parking and pedestrian paths are ‘made to fit’.  I find that there should have been a more refined resolution of the management and working of the different activities of loading, parking, and pedestrians.
53	The objectors raised concern with access and egress from the site and the potential impact on Wattle Avenue.  It was submitted that since the completion of the railway overpass, there has been an increase in traffic using Wattle Avenue to access the freeway.  Ms Dunstan confirmed that she had not been able to undertake recent surveys due to COVID-19 imposed directions restricting access to the site but noted that her office undertook a queuing assessment of the north bound approach to the intersection on 8 September 2021.  Ms Dunstan acknowledged that the assessment was undertaken during lockdown restrictions associated with COVID-19 but compared the traffic volumes against those of November 2019 to determine how much higher ’normal’ conditions are to current conditions.  Ms Dunstan during her evidence stated that she supported the access and egress from Wattle Avenue and a left only egress on to Princes Highway.  She did not consider it necessary to restrict a right-hand turning movement out of the site to Wattle Avenue as the peak times of the use would be outside peak commuter times.  However, during the evidence, Ms Dunstan agreed that it would be appropriate to require a review of the traffic arrangements after the use had been operating for 12 months to determine if restricting a right-hand turn in to Wattle Avenue should be imposed.  
54	I agree with the parties that COVID-19 has imposed restrictions, which have resulted in difficulties for assessments and traffic counts to be undertaken.  Whilst Ms Dunstan has referred to earlier traffic studies and comparisons to other sites, the full impact of the rail crossing to Wattle Avenue is unknown until such time that traffic conditions return to normal levels.  Anecdotally the objectors submitted that they have seen a change in traffic patterns since the completion of the rail overpass as the overpass leads into Wattle Avenue.  
55	I note that the current permit provides access to a basement car parking from Wattle Avenue.  I am not refusing the proposed development because of the proposed access arrangements to Wattle Avenue.  I consider some level of access is appropriate (even if it was subject to a review).  I make the observation that in any future proposal, a full assessment, hopefully outside COVID-19 restrictions can be undertaken.

Social impact
56	Council refused the proposal on the following ground:
[5] The proposed development is inconsistent with Clause 52.27 as it does not ensure that the licensed premises is situated in appropriate location and does not consider the cumulative impact of the licensed premises on the amenity of the surrounding area.
57	Council submitted that the lack of a permit trigger does not mean that a packaged liquor shop is appropriate anywhere in the ACZ1. Council called Ms Rosen to provide social impact evidence and relied on her conclusions that the proposed location of the site selling packaged liquor is inappropriate because the site:
•	Will increase the accessibility of discount alcohol as it is within 400 metres of concentrations of people at an increased risk of alcohol-related harm.
•	Is in close proximity to high proportions of people renting social housing. 
•	Is inappropriate given the surrounding sensitive (residential) uses. 
•	Associated impacts on amenity such as litter and anti-social behaviour and the health and well-being (such as assaults and violence including domestic violence). 
58	Council further highlighted the evidence of Ms Rosen described, that the link between the availability of alcohol and adverse social impacts is well-established and the is clearer when there is discounted alcohol. Council contended that the proposal is inconsistent with clause 52.27.
59	I was referred to two decisions Liquorland and the decision of Deputy President Dwyer’s in Hunt Club. The Hunt decision is often referred to for the now well-established principal that town planning is not a panacea for all perceived social ills nor a forum for addressing all issues of social or community concern.  It goes on further to say that it is “not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society”.
60	Ms Rosen emphasised, that Dan Murphy’s is a discount liquor store advertising that it will ‘beat any price’. It was the discount nature of the store that was a key concern. She would not have the same level of concern, if the proposal was, for example, for a boutique wine store.

61	As I refused the proposed development for built form reasons, I make no conclusive findings regarding the social impact of the proposal.  However, whilst noting the observations of Hunt, given the nature of the proposed use, the potential social impact of the use particularly in a vulnerable community, will need to be considered.  As Mr Rosen highlighted, the review site is in an area that has an elevated risk of alcohol-related harm (including young people aged 18-24 years, households renting social housing, Aboriginal and Torres Strait Islander People and people experiencing socio-economic disadvantage).  These are factors that are to be considered.  
Conclusion
62	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.  

Tracey Bilston-McGillen
Member