VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P2050/2020
Permit Application no.P20/1557 	
CATCHWORDS	

Applicant	Jacfaz Pty Ltd	

Responsible Authority	Mornington Peninsula Shire Council	
Respondent	Gourmet Hummus Co. Australia	
Referral Authority	The Head, Transport for Victoria	

SUBJECT LAND	295 Point Nepean Road
DROMANA VIC 3936	

HEARING TYPE	Hearing	

DATE OF HEARING	3 August 2021	
date of interim orders	20 August 2021 and 17 November 2021	
date of order	6 December 2021	
CITATION	Jacfaz Pty Ltd v Mornington Peninsula SC [2021] VCAT 1470 	

Order
Permit granted
1	In application P2050/2020 the decision of the responsible authority is varied. 
2	In planning permit application P20/1557 a permit is granted and directed to be issued for the land at 295 Point Nepean Road DROMANA VIC 3936 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Use of the land for a food and drink premises (food truck) and alteration of access to a road zone.

Joel Templar
Member			

Appearances
For Jacfaz Pty Ltd	Mr Mitch Seach, town planner of Ratio Consultants	
For Mornington Peninsula Shire Council	Ms Lucy Yang, town planner of Mornington Peninsula Shire Council	
For The Head, Transport for Victoria	No appearance	
For Gourmet Hummus Co. Australia	Mr Amir Samuel, in person.	

Information
Description of proposal	The proposal is to use part of the review site for the purposes of a food and drink premises to be operated from a food truck. This food truck is a mobile unit (see photograph below) that can be towed behind a vehicle and is proposed to be located in an existing vehicle parking space on the review site with the serving window facing the existing building and forecourt area. The space it is proposed to occupy whilst in sue is the northern most on-site space located on the review site. It is proposed to operate between 5:00pm and 11:00pm on Friday, Saturday and Sunday evenings.
	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	Special Use Zone Schedule 2
Environmental Significance Overlay Schedule 25	
Permit requirements	Clause 37.01-1 – to use land for a food and drink premises.	
Land description	The review site is located on the south-easter side of Point Nepean Road in Dromana, approximately 130 metres north-east of the intersection with McCulloch Street. The site is generally rectangular in shape with a frontage of 15.3 metres and a length of 65.5 metres. The site is currently occupied with a single-storey building used as a physiotherapy clinic and associated car parking to the south-western side of the building and toward the rear of the property. Access to the site is gained via a crossover to Point Nepean Road. The site is located at the southern edge of the Dromana Activity Centre situated on Point Nepean Road. 	
Tribunal inspection	29 October 2021	

Reasons
What is this proceeding about?
1	This proceeding concerns the review by the applicant against the council’s decision to grant a planning permit for the use of part of the land for a food truck to operate 5:00pm to 11:00pm Friday, Saturday and Sunday. 
2	The food truck is to occupy a small part of the review site, and at limited times throughout the week and will be removed from the site when not in use. The review site is currently occupied by a single storey building and open concrete car parking and is used as a medical centre and mostly outside the hours of the proposed food truck operating hours.
3	As part of the planning permit application process through the council, surrounding land owners and occupiers were notified of the proposal and objections were received. One of those objectors lodged this application for review against the council’s decision. The grounds relied on relate to whether the proposed use is an appropriate use having regard to the zoning and physical location of the site, and whether there will be any unacceptable amenity impacts as a result.
4	The council’s decision included a permit condition (condition 2) to alter the trading hours to cease at 10:30pm, rather than the 11:00pm applied for by the permit applicant. This condition is not under review in this proceeding.
5	The applicant for review (objector) in this case, made submissions that the zoning of the land and the location of the site do not support the proposed use. In addition, it was submitted that the proposed use would also have amenity impacts on the residential land to the south-west, including through noise, odour, lighting, litter and traffic. 
6	The key issues to be determined in this case relate to those matters raised and relied upon by the objector regarding the use of the land in the SUZ2 and amenity impacts.
7	I have decided that the proposed use will be an acceptable outcome and that the decision of the council be varied. My reasons follow.
preliminary issue
8	At the hearing, I raised the issue of whether the proposed use was prohibited under the zone schedule, given a recent planning scheme amendment had been gazetted which altered the formatting of food and drink premises in the table of uses. None of the parties were aware of this specific change to the zone schedule until I raised it.
9	This amendment changed the formatting of uses in section 3 of the Table of Uses. It resulted in the ‘other than’ uses nested under Retail Premises being altered. See the extracts below of the most immediate previous version of the Schedule, and the current version respectively below.
 
Special Use Zone Schedule 2 as of 1 July 2021
 Special Use Zone Schedule 2 as of 3 December 2021
10	The change can be clearly seen that after the ‘Market’ use, a closing bracket has been inserted. Then on the following line, Food and Drink Premises appears along with Plant Nursery and then a closing bracket but with no opening bracket. Food and Drink Premises is also listed out of alphabetical order, which is the way in which uses are listed in Table of Uses in zones and zone schedules.
11	An interim order was issued on 20 August 2021. A Practice Day Hearing and subsequent orders were also held and issued respectively on 17 November 2021, further dealing with this issue.
12	At the hearing, in the responses following the 20 August 2021 interim order and at the practice day hearing, the applicant maintained that the proposed use was prohibited based on the table of uses.
13	However, in the last set of submissions filed by the applicant on 1 December 2021, and in response to the council’s final submissions filed on 24 November 2021, the applicant conceded that the use was not prohibited and was a section 2 use.
14	On the basis that the parties agree that the use is not prohibited, and I agree, I have proceeded to determine the merits of the proposal below.
physical and strategic context
Strategic
15	The planning scheme directs commercial development broadly to commercial areas and seeks to avoid ‘out of centre’ commercial development and outcomes.
16	Dromana is identified as a ‘Large Township Activity Centre’, along with four other locations. These all sit in the second tier in a hierarchy of five different levels of activity centres.
17	The review site is zoned SUZ2. The purpose of the SUZ is:
To implement the Municipal Planning Strategy and the Planning Policy Framework. 
To recognise or provide for the use and development of land for specific purposes as identified in a schedule to this zone
18	In addition to the purpose of the SUZ, the sole purpose of the SUZ2 is:
To recognise strategic sites that contain recreational, religious, health or educational facilities that performs a significant community function.
19	The adjoining land to the south-west is zoned General Residential Zone and the land to the north-east is zoned Commercial 1 Zone.
20	Decision guidelines in the parent provision of the SUZ are:
•	The Municipal Planning Strategy and the Planning Policy Framework. 
•	Any guidelines in the schedule to this zone.
21	Under clause 2.0 of the SUZ2, application requirements to accompany a planning permit application include:
•	The purpose of the use and the types of activities which will be carried out. 
•	The likely effects, if any, on adjoining land including noise levels, traffic, hours of operation and light spill, affect on the privacy of adjoining properties, solar access and glare.
22	This same clause also sets out the following:
A use must not detrimentally affect the amenity of the neighbourhood, including through the: 
•	Transport of materials, goods or commodities to or from the land. 
•	Appearance of any building, works or materials. 
•	Emission of noise, artificial light, vibration, dust, waste water, or waste products. 
23	Broader amenity considerations are also set out in the PPF and clause 65.
24	Decision guidelines in the SUZ2 are:
•	The Municipal Planning Strategy and the Planning Policy Framework and local planning policies. 
•	The effect that existing uses may have on the proposed use. The drainage of the land. 
•	The availability of and connection to services. 
•	The effect of traffic to be generated on roads. 
•	The interim use of those parts of the land not required for the proposed use.
25	
Physical
26	The review site is a rectangular parcel of land at the south-western edge of the Dromana activity centre. It is located along the southern side of Point Nepean Road, opposite the foreshore area. It supports a single storey building along one side, with a concrete driveway and car parking along the other and concrete car parking area to the rear. A small strip of landscaping is located along the full length of the south-western boundary.

Review site shaded in red above.

Photograph looking at the review site from Point Nepean Road with building on the left and car parking and driveway on the right. The parking space to be utilised by the food truck is located directly behind the palm tree and other vegetation in the foreground.
27	Directly abutting the review site to the south-west is a vacant parcel of land in the General Residential Zone. It has frontage to Point Nepean Road and abuts the full length of the review site. 
28	Further to the south-west is another parcel of land that supports a double storey dwelling on a relatively large lot. This dwelling also has primary areas of secluded private open space on its north-eastern side with some aspect towards the review site. The dwelling is approximately 55 metres away from the proposed food truck location, with the private open space areas between 40 and 50 metres away. Other parts of the site, including the rear car park are between 15 and 25 metres away from the closest parts of private open space.
29	It is understood both these parcels are under the same ownership by the applicant for review.
30	To the north-east are commercial properties in the Dromana activity centre. Directly abutting the review site to the north-east is a small single storey building used as a restaurant.
31	Abutting the rear is a residential property with a building and private open space close to the common boundary.
32	The Point Nepean Road formation in this location includes one lane of traffic in each direction, with a median lane for turning for both directions of traffic. A dedicated lane of on-street car parking is located along the south-eastern side, including room for one vehicle adjacent to the front of the review site.
is the proposed use acceptable in its strategic and physical context?
33	The applicant submitted that the proposed use is not consistent with the purpose of the SUZ2 and that it would be better located in the more core area of the Dromana Activity Centre. 
34	It was also submitted that there are ample opportunities elsewhere within the activity centre where the proposed use could locate, and which is a better strategic fit and would result in lesser amenity impacts.
35	The applicant also made reference to a council policy ‘Control and Management of Itinerant Traders’. The scope of this policy is: 
•	This Policy applies to all public land within the Mornington Peninsula Shire, and all businesses and individuals who seek to use public land to operate a business or for financial gain.
36	The objector set out different elements of this policy and sought to rely on it, at least in part, in support of its objection to this proposal. 
37	Even though this document is a council policy and can be considered under the relevant legislation, it is clear from the document that it is intended to apply only to public land and therefore is not a relevant consideration for this proposal, as the review site is not public land.
38	There was dispute at the hearing about whether the review site was located inside the boundaries of the activity centre, as defined by the ‘township boundary’ in a document that does not yet form part of the planning scheme or referenced in the planning scheme.
39	This document is the ‘Dromana Township Built Form Review’, June 2018. This document forms the basis for planning scheme amendment C224, which aims to introduce built form controls through a Design and Development Overlay. The Review states the following:
Mornington Peninsula Shire Council has engaged Hansen Partnership to prepare the Dromana Township Built Form Review. The Dromana Township Built Form Review will set out a long term strategic framework to consider the potential future built form implications for the Dromana town centre, including building heights and interface treatments. It will also provide a framework for the community based on initiatives and actions, and the integration of Council’s services and programs, existing policies and strategies. It will assist in establishing the role of Dromana in the context of the broader municipality and the Mornington Peninsula region. 
The purpose of the Built Form Review is to allow community discussion and input into the formulation of built form controls for the Dromana township….
40	Amendment C224 has not yet been gazetted but has been through a panel process and is currently awaiting ministerial approval.
41	Submissions from the objector sought to classify the review site as being outside of the ‘township’ boundary and submissions were crafted to make it seem as though the review site was outside the township boundary of Dromana.
42	In relation to the Review, this document and the intended controls that have been drafted on the basis of it, have not yet been gazetted and do not yet form part of the planning scheme. However, more importantly, this amendment and the documents and controls associated with it are not aimed at guiding the use of land, they are aimed at built form outcomes. 
43	Given this proposal is for the use of land only and not development, and the parties agreed this was the case, amendment C224 and associated documents are not of assistance to me in this case. The reliance on it by the objector to espouse that the review site is somehow outside the so-called township boundary and therefore the proposed use was therefore somehow incongruent with policy aimed at containing commercial uses to activity areas, is a submission I assign no weight.
44	The review site is located at the edge of the Dromana commercial area. It currently supports a commercial sue, being a medical centre, with buildings and open car parking in clear view from the public realm. The site appears as part of the commercial area, albeit at the edge of it.
45	The objector acknowledged that the review site does not preclude other uses, or additional uses, it submitted that any such uses must demonstrate that they will not be incompatible with other uses and can address amenity impacts and traffic generation.
46	I agree with the objector that the proposed use is not prohibited and that considerations relating to use compatibility and amenity impacts are important. I also find that these are key considerations in determining this case. 
47	I find that the use of the land, at the intensity proposed, is relatively low. This is a relatively small, mobile food truck that will occupy a very minimal proportion of the site, for a very limited duration over the course of one week. It is not a large, sprawling use such as a convenience restaurant that would have a significant impact on the nature of the sue of the land. 
48	The proposed use will not replace the existing medical centre and at the times it is proposed to operate, there will be a small overlap of when both uses would be operating (between 5:00pm and 6:00pm on a Friday). It is also not the type of use that will likely shift the concentration of activity to this edge of the activity centre – it is not an ‘anchor’ retail premises. It is very much at the low end of the spectrum in terms of high intensity uses and in my view, is not an inappropriate or unacceptable use in this location, having regard to relevant activity centre policy.
will the proposed use result in any unacceptable amenity impacts?
49	A number of potential amenity impacts were raised by the applicant for review. These include noise from both the food truck itself and also from patrons associated with purchasing food from the food truck, who may congregate near the review site. Other issues such as impacts from traffic, odour, light spill and litter were also raised. 
50	The applicant also submitted that no acoustic assessment was undertaken in relation to noise impacts that might result from the proposed use. Therefore, the applicant commissioned its own acoustic assessment and submitted this as part of submissions. 
51	This report was based on background noise from other areas and sound power levels sourced from other sites. None of the assessment was based on actual readings from the review site or the food truck that forms the proposed use. It is therefore difficult to give this assessment any weight.
52	The applicant also called for a condition requiring a Patron Management Plan (PMP) as it was submitted management of patrons within the site after they had purchased food was unclear. It was said that certainty should be provided as to how the operator would manage patrons, particularly those affected by alcohol or drugs.
53	I am not persuaded that the issues raised by the applicant will be of such a magnitude to warrant a refusal of this proposal or that could not be managed appropriately by conditions.
54	I accept that the proposed use will create the potential to attract people to the area and may result in people congregating near the review site and surrounding immediate area. This would likely be generated by people arriving, ordering food, waiting for orders and also eating nearby. This will obviously create the potential for an increase in noise and associated activity nearby.
55	However, the proposed use is relatively small in scale and this will naturally result in limitations on some of the impacts that may result, including the number of people associated with the proposed use congregating nearby. As already set out previously, this use is not expansive, it does not occupy a significant proportion of the site and will have limited operating hours. Further, the location of the food truck is located as close to Point Nepean Road as possible, 
56	I am satisfied that the likely number of people and associated levels of noise will not be unacceptable in this context. The site is at the edge of the commercial area and whilst at an ‘interface’ location, I am not persuaded that the number of patrons visiting the site associated with the proposed use would be significant and therefore that any noise from patrons would be unacceptable. 
57	In terms of noise associated with mechanical plant attached to the food truck, I note the acoustic assessment sets out that during the ‘nighttime’ period, noise from plant is likely to exceed the allowable limits. However, as I have already set out, the basis for these conclusions is not on actual data and therefore it is not of assistance in this case. However, I will include a condition on the permit that requires an acoustic assessment to be undertaken and any recommendations of that to be implemented, should the responsible authority feel it necessary to do so at some future time.
58	Whilst the applicant was concerned about patron behaviour, it did accept that the relevant legislation does not seek to control human behaviour. Further, the applicant was also concerned about the impacts associated with outdoor dining on the site. However, no tables or seating are proposed as part of this application. I understand how there may be some confusion over this issue, considering the notice of decision issued by the council includes a condition about limiting outdoor seating. However, as none is shown on the plans, I will delete this condition.
59	I am not persuaded that a PMP is necessary in this case. As already set out, this use is small in scale and is not seeking to serve alcohol. A PMP is a requirement that would often be required for larger scale operations and/or uses that are seeking to serve alcohol and seeking one for this proposal, in my view, is disproportionate to the scale of the use proposed here.
60	In terms of traffic, I accept that there may be some level of vehicle traffic generated by this proposal. However, given the location of the site at the edge of the activity centre and proximate to the foreshore, I would expect that some patronage would not necessarily need to drive to the site, which would limit traffic generation.
61	Matters related to odour, light and litter are able to be appropriately managed via conditions.
62	In summary, it appears that some of the issues raised by the applicant and the magnitude of potential impacts, as well as ways in which to manage potential amenity impacts are disproportionate to the scale of the proposed use. Whilst I accept that there may be some amenity impacts arising, I am not persuaded that these would be unacceptable in the context.
Conclusion
63	For the reasons given above, the decision of the responsible authority is  varied. A permit is granted subject to conditions.

Joel Templar
Member			

Appendix A – Permit Conditions

Permit Application No	P20/1557	
Land	295 Point Nepean Road
DROMANA  VIC  3936 	

What the permit allowS	
In accordance with the endorsed plans:
•	Use of the land for a food and drink premises (mobile food truck).	

Conditions
Layout and use not altered
1	The use as approved and shown on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.
Hours of operation
2	Unless with the consent of the Responsible Authority, the uses hereby permitted must not operate outside the following hours:
(a)	Friday to Sunday: 5pm – 10:30pm
Amenity and Noise
3	At any reasonable time, the responsible authority may require the operator to commission an acoustic report to be prepared by a suitably qualified acoustic engineer that identifies whether relevant Environment Protection Authority (EPA) requirements are met. If the report identifies that the use is operating such that these requirements are not met, it must identify measures to ensure compliance with the EPA requirements and these measures must be implemented to the satisfaction of the Responsible Authority.
4	The management of the use approved by this permit shall be such that the amenity of the area must not be prejudicially affected by the use through the:
(a)	Transport of materials, goods or commodities to or from the land.
(b)	Appearance of any buildings and works or materials.
(c)	Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
To the satisfaction of the Responsible Authority.
5	Sound levels emanating from the land must not exceed those required to be met under the Environment Protection Regulations under the Environment Protection Act 2017.
6	External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
7	A rubbish bin of suitable dimensions to cater for anticipated waste from the proposed use must be provided during operating hours for use by patrons. All rubbish and waste generated from the use must be collected and disposed of accordingly by the operator, to the satisfaction of the Responsible Authority. 
8	The food truck must not be stored onsite outside of the permitted hours of operation stated in Condition 2 above. 
Department of Transport
9	Vehicles must enter and exit the land in a forward direction at all times.
10	Operating hours of the existing permitted land use and the food truck must not overlap. (i.e. after the closing time of the existing physiotherapy medical centre).
Expiry
 This permit will expire:
(a)	If the use is not commenced within two years of the date of this permit.
In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

– End of conditions –