Land Use Planning - Case Study 1
Land use planning decisions have an enormous impact on the future protection of the Green Wedges. Such decsions determine all land use and development in the Green Wedges. At one level are proposed amendments to planning schemes. These include major decisions on any proposed changes to zoning and directions for the interpretation of planning policy both by the State Government and municipal councils. At the highest level they can involve issues relating to the urban growth boundary but are more often relate to issues of potential for urbanisation to impact on the Green Wedges.
The other level is the planning applications handled by individual municipal councils under their respective planning schemes. We have previuosly referred to the cumulative impact of individual planning permit decisions as haing the potential for 'death by a thousand cuts' for the values of the Green Wedges.
To help member organisations exchange experiences in this area of land use planning, case studies will be prepared with different member organisations to detail individual cases an dprovide for this information exchange.
The first case study is reproduced below and also attached as a separate file.
ISSUE: Expansion of retail in the Green Wedges
Planning Permit application:
Mornington Peninsula Shire P14/2320
632 Moorooduc Highway, Mornington.
PROPOSAL: Use of land for primary produce sales and packaged liquor.
This case study was prepared in conjunction with Leigh Eustace who has been an active member of GWC since 2006 and is a former Mornington Peninsula Shire Councillor for Mount Eliza (2008-2012)
In July this year the Victorian Civic and Administrative Tribunal (VCAT) affirmed a decision by the Mornington Peninsula Shire Council to refuse to grant a permit to use an additional part of an existing retail business, Tully’s Corner Produce Store, for the sale of wines and packaged beer.
This decision is a landmark for both reaffirming the planning policies protecting the values of the Morning Peninsula Green Wedge and an important precedent for protecting for the expansion of any existing retail businesses in the Green Wedges as a whole.
Planning Permit application
The applicant for this planning permit sought approval to use an additional part of Tully’s Corner Produce Store to enable the sale of wines and packaged beer, under “Primary produce sales” as Section 2 permit required use in the Green Wedge Zone and as a “Licensed Premises” under Clause 52.27 of the planning scheme.
The history of the site is that in the early 2000’s the land was used for orchards and grazing. The planning approval for retail sales in 2003 was subject to strict obligations under a S173 agreement. In brief, the obligations required that the sale of fresh produce must remain the primary purpose of the land and must comprise at least 80% of the total floor stock. There was no allowance for the sale of non food products, including alcohol. Other exclusions the detail of which can be viewed in the S173 agreement basically reinforced that the use is not to expand to other retail uses (e.g. hot food, amusement parlour, cafe/restaurant etc).
Grounds for objection
The planning application was advertised by the Council in mid 2015 and received one objection from Leigh Eustace who has been an active member of GWC since 2006 and is a former Mornington Peninsula Shire Councillor for Mount Eliza (2008-2012) The site is adjacent to the old Mount Eliza Ward. Broadly, the grounds of the objection were that
- The application for consideration of the proposed use under “Primary produce sales” was not the correct definition and really equated to a “Bottle Shop” that is a prohibited use in the Green Wedge Zone.
- The permit for the operation of the Tully’s Produce Store is subject to a Section 173 agreement which states the boundaries relating to items that can be sold by the existing retail operation.
- The stated justification for seeking a permit under “Primary produce sales”, the promotion of tourism for local wineries, is not valid.
- The application seeks to incorporate the sale of alcoholic products within the boundaries of the general Coolstore retail area that include packed beer and confuses green wedge cellar door sales with the traditional bottleshop and as such a liquor licence for the site should not be granted.
Council meeting 26 October 2015
The Statutory Planning Report to the Council Meeting of 26 October 2015 recommended the planning application P14/2320, with conditions, be approved as meeting the requirements of the Mornington Peninsula planning scheme and not resulting in detrimental amenity to any other person.
Mr Eustace spoke at the meeting reinforcing his objections to the permit application.
Key issues presented to Councillors:
- Planning provisions for Green Wedge Zones, provisions within the draft GW Management Plan and restricting retailing to town centres.
- Known history of the operations at the site and reinforcing that a bottle shop is a “Shop” and the morphing of retailing on the property.
- Lack of primary produce produced on the site and reliance on other growers’ product.
- Consideration of what is “adjacent” land and whether the Officer recommendation was lawful and enforceable.
- Permit approval would automatically provide for “ancillary” sales. (i.e. beer & cider).
- The “need” for a bottle shop considering a current amendment to provide a larger bottle shop close to the site to promote local wines.
The Council voted to refuse the permit application on the grounds that:
- The sale of liquor from a retail premises fails to comply with the purpose and intent of Clause 35.04 Green Wedge Zone.
- The proposal will result in an intensification of the retail use which is a prohibited use in the Green Wedge Zone.
The applicant subsequently appealed to VCAT against the decision by Council to reject the planning application.
Victorian Civic and Administrative Tribunal (VCAT) hearing
As noted earlier, in July this year VCAT released its decision affirming the action by the Mornington Peninsula Shire Council to refuse to grant a permit to use an additional part of an existing retail business, Tully’s Corner Produce Store, for the sale of wines and packaged beer.
The following summary of the VCAT decision to uphold the refusal provides a very valuable insight into the issues raised by Leigh Eustace and the detail of the issues for addressing any further inevitable planning applications of this kind in the Green Wedges. It is a précis of the report highlighting the planning issues significant to any application of this kind in the Green Wedges. Reading the original VCAT report is recommended for those wanting the detail of the decision (VCAT Ref. P2452/2015).
Use of the land for primary produce sales
The applicant in applying for a permit described the proposed additional use as “Primary produce sales”. This use is defined in Clause 74 of the planning scheme as:
Land used to display and sell primary produce, grown on the land or adjacent land. It may include processed goods made substantially from the primary produce.
Primary produce sales” is a permissible use in the Green Wedge Zone and in this case, because the total area of display and sale of produce is greater than 50m2,, a planning permit would be required.
The position adopted by the applicant was that wine sales qualify as a processed good made from primary produce (vineyards) sourced from adjacent land. The key issue hinged on the meaning of the word ‘adjacent’.
In the objection it was contended that the wineries named in the application cannot be reasonably defined as adjacent land. In the Statutory Planning report to the Council meeting in October 2016, it was recommended that adjacent could be reasonably considered to be within 3 kilometre radius of the subject land. No objective basis provided for this position.’
The proponent’s expert witness report (Ratio 4 May 2016) did not even address this issue that but just accepted the 3km radius for the subject land as recommended in the original statutory planning report to Council. This was considered a major flaw in the report as the definition of ‘adjacent ‘was contentious and a fundamental planning issue for deciding the validity of the application.
An analysis of the location of the wineries (as detailed in the original planning application) and the functioning of these wineries relevant to this application was provided as follows:
- Jones Road Wines, 2 Godings Road, Moorooduc - 9.2km by road, approximately 5km as the crow flies, and has cellar door sales.
- Moorooduc Estate, 501 Derril Road, Moorooduc - 9.5km by road, approximately 6km as the crow flies, and has cellar door sales
- Phaedrus Estate, 220 Mornington-Tyabb Road, Moorooduc - 9.2km by road, approximately 4.5km as the crow flies, and has cellar door sales
- Yabby Lake Vineyard, 86 Tuerong Road, Tuerong - 10km by road, approximately 7.5km as the crow flies, and has a restaurant and cellar door sales
- Stumpy Gully Vineyard, 1247 Stumpy Gully Road, Moorooduc – 9.6km by road, approximately 5km as the crow flies, and has a restaurant and cellar door sales
Even if the 3km definition were to be accepted (which it is not) none of the wineries named in the application appear on the analysis fall within that radius. Under these circumstances alone these wineries cannot reasonably be defined as adjacent to the site proposed for including wine as a primary produce under the definition as proposed in the statutory planning report to Council.
In addition, the local wineries are a major tourist drawcard in their own right and the proposal would detract rather than encourage that experience. The dominant intent of the introduction of Primary produce sales was to provide flexibility for farmers by allowing for sale of farm produce without the need for a planning permit for relatively small areas for display and sale.
The VCAT report contains a very thorough examination of the meaning of ‘adjacent’ including both dictionary definitions and precedents from other VCAT tribunals. In the VCAT report it was concluded that if it was necessary to determine the case on the basis of adjacency the boundary would be something less than one kilometre.
The VCAT report concluded that this proposal does not conform with the use of the land as Primary produce sales.
VCAT found that the use constituted a ‘Bottle shop’ that is defined as “Land used to sell packaged liquor for consumption off the premises”. In the planning scheme, ‘Bottle shop’ is nested under “Retail premises” and such premises (other than Manufacturing sales, Market, Plant nursery, Primary produce sales and Restaurant) are a prohibited use in the Green Wedge Zone.
VCAT concluded that the land use would be for a bottle shop that is prohibited in the GWZ.
Clause 52.27 Licensed Premises applies to this planning application as the sale of liquor must be licensed under the Liquor Control Act 1998. The purpose of this licensing 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
In evaluating the appropriateness of the location, the VCAT report addressed the Municipal Strategic Statement (MSS) in the Mornington Peninsula Planning Scheme. It was found that the location of Tully’s Corner Produce Store is not an appropriate location because it is contrary to the MSS policy to:
- Strongly discourage retail development locating in out-of-centre non urban locations to avoid fragmentation of commercial activity and strengthen the existing hierarchy of activity centre.
- Protect rural areas from intrusion by commercial uses that are primarily urban in character and more appropriately located in township areas.
This policy is further reinforced in the Clause 22.06 Development on Highways, Main Roads and Tourist Routes of the Local Planning Policies.
The VCAT report concluded for the reasons summarised above that the site was not an appropriate location for a liquor licence and that no permission should be granted under Clause 52.27.
In summary the VCAT report concluded that:
- This proposal would not be for use of the land as Primary produce sales.
- The proposed land use would be for a bottle shop which is a prohibited use in the zone.
- If it were permissible a permit should be refused on the grounds planning policy and planning merits in relation to the Green Wedge Zone provisions in clause 35.04 of the planning scheme and also in relation to the licensed premises provisions in clause 52.27 of the planning scheme.
VCAT affirmed the decision by the responsible planning authority to refuse to grant a permit.
The key factor in this process to successfully stop further retail development on the site was the initiative of Leigh Eustace. It is useful to list the multiplicity of actions Leigh undertook in pursuing this application:
- Identifying a planning application in the Green Wedge Zone that was contrary to the purpose of the zone.
- Lodging of an objection to the planning application to the Mornington Peninsula Shire Council.
- Actively engaging with the Council and Councillors in the lead up to the consideration of the planning application at the Council meeting in October 2015 and successfully achieving refusal of the application. And subsequent further engagement with the Council about a range of issues after the meeting.
- Appearance as an objector at the appeal by the applicant against the Council’s decision to grant a permit at the VCAT hearing in mid 2016.
The main lessons for land use planning are:
- To as a starting point always address the land use definitions as set out in Section 70 of the planning scheme. In this case the proponent sought to characterise the application as a simple case of ‘Primary produce sales’ that is an allowable use in the Green Wedge Zone, either as of right or subject to permit application. The determination that this was not a legitimate definition of proposed use and that it came under the definition of ‘Bottle shop’ was critical to the proposal being a prohibited use in the GWZ.
- The testing of the proposed use as a Bottle shop against the requirements for a liquor licence ultimately led to sustaining the rejection of the appeal by the proponent at VCAT.