Planning and Environment Act 1987 -...

Planning and Environment Act 1987

Panel Report

Warrnambool Planning Scheme Amendment C99, Planning Permit PP2015‐0150 53‐69 Raglan Parade, Warrnambool

2 June 2016

Planning and Environment Act 1987

Panel Report pursuant to Sections 25 and 96B of the Act

Amendment C99 to the Warrnambool Planning Scheme

Permit Application PP2015‐0150

53‐69 Raglan Parade, Warrnambool

2 June 2016

Trevor McCullough, Chair

Warrnambool Planning Scheme Amendent C99 and Planning Permit PP2015‐0150 Panel Report 2 June 2016

Contents Page

Executive Summary ............................................................................................................. 1

1 The proposal ............................................................................................................... 3 1.1 The Amendment ...................................................................................................... 3 1.2 The Permit Application ............................................................................................ 3 1.3 The proposal ............................................................................................................ 4 1.4 The subject site and surrounds ............................................................................... 4 1.5 Background to the Amendment .............................................................................. 5 1.6 Issues dealt with in this report ................................................................................ 6

2 Planning context ......................................................................................................... 7 2.1 Introduction ............................................................................................................. 7 2.2 State Planning Policy Framework (SPPF) ................................................................. 7 2.3 Local Planning Policy Framework (LPPF) ................................................................. 8 2.4 Other planning strategies, policies or reports used in formulating the

Amendment ............................................................................................................. 9 2.5 Planning scheme provisions .................................................................................. 11 2.6 Ministerial Directions and Practice Notes ............................................................. 11 2.7 Aboriginal cultural heritage ................................................................................... 11 2.8 Conclusion ............................................................................................................. 12

3 The proposed Amendment ....................................................................................... 13 3.1 The issue ................................................................................................................ 13 3.2 The proposed change of zone ............................................................................... 13 3.3 Evidence and submissions ..................................................................................... 14 3.4 Discussion .............................................................................................................. 22 3.5 Conclusions ............................................................................................................ 25 3.6 Recommendations ................................................................................................ 25

4 The proposed planning permit .................................................................................. 26 4.1 The issue ................................................................................................................ 26 4.2 Aboriginal cultural heritage ................................................................................... 26 4.3 Should a planning permit be granted? .................................................................. 28 4.4 Permit conditions .................................................................................................. 30 4.5 Recommendations ................................................................................................ 30

Appendix A Revised planning permit conditions


List of Figures Page

Figure 1 The area proposed to be rezoned ........................................................................... 3

Figure 2 Site context (extracted from Mr De Silva’s evidence) ............................................. 5

Figure 3 Plan 1b from Clause 21.07 (Eastern Activity Centre) ............................................ 15

List of Abbreviations

AAV Office of Aboriginal Affairs Victoria

C1Z Commercial 1 Zone

C2Z Commercial 2 Zone

CHMP Cultural Heritage Management Plan

DELWP Department of Environment, Land, Water and Planning

DTPLI Department of Transport, Planning and Local Infrastructure (former)

EAP Warrnambool Eastern Activity Precinct

EAPSP Warrnambool Eastern Activity Precinct Structure Plan

GRZ General Residential Zone

IN3Z Industrial 3 Zone

LPPF Local Planning Policy Framework

MSS Municipal Strategic Statement

SPPF State Planning Policy Framework

VPP Victoria Planning Provisions

WHC Warrnambool Homemaker Centre


Overview

Amendment Summary

The Amendment Planning Permit PP2015‐0150

Common Name 53‐69 Raglan Parade, Warrnambool

Subject Site 53‐63 Raglan Parade, Warrnambool (Southern Right Motor Inn); 65 Raglan Parade, Warrnambool (Motel Warrnambool); and 69 Raglan Parade, Warrnambool (Gateway Motor Inn).

The Proponent Myers Planning Group on behalf of Clinton Baulch Motor Group Pty Ltd

Planning Authority Warrnambool City Council

Authorisation A03192 authorised on 6 October 2015

Exhibition Between 10 November and 14 December 2015

Submissions Submissions were received from:

VicRoads South Western Region

Myers Planning Group for Clinton Baulch Motor Group

Norwey Pty Ltd

Panel Process

The Panel Trevor McCullough

Directions Hearing A Directions Hearing was not required

Panel Hearing Planning Panels Victoria, 26 April 2016 and at Maddocks Lawyers in William Street Melbourne, 29 April 2016

Site Inspections Unaccompanied, 6 April 2016

Appearances Warrnambool City Council represented by Ms Kate Morris of Maddocks Lawyers and calling expert evidence from:

Mr Chris de Silva of Mesh Planning on planning

Clinton Baulch Motor Group Pty Ltd represented by Mr Steve Myers of Myers Planning Group and calling expert evidence from:

Mr Sean Stephens of Essential Economics on economics

Ms Kirsten Kilpatrick of Tract on planning

Norwey Pty Ltd represented by Mr Peter O’Farrell of Counsel and calling expert evidence from:

Mr Rob Milner of 10 Consulting on planning

Date of this Report 2 June 2016


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Executive Summary

(i) Summary

Warrnambool Planning Scheme Amendment C99 (the Amendment) was prepared by the Warrnambool City Council as Planning Authority. As exhibited, the Amendment proposes to rezone the land at 53‐69 Raglan Parade, Warrnambool, to the Commercial 2 Zone (C2Z).

The Amendment is accompanied by an application for a planning permit (Planning Permit Application No. PP2015‐0150) for the following at 53‐63 Raglan Parade:

Use the land for Motor vehicle sales (and associated repairs and servicing)

Vary the requirements of Clause 52.14 in relation to the size of the office, that exceeds 18 square metres and for the inclusion of on‐site repairs

Display of business identification signage

Create and alter access to a road in a Road Zone Category 1.

The Proponent (Clinton Baulch Motor Group Pty Ltd) currently operates two motor dealerships that have been operating for approximately 40 years. As a result of growing demand and the inadequate size of their current site at 1101‐1109 Raglan Parade, Baulch Motor Group is seeking to relocate the Nissan, Kia and used car dealership to develop a new car showroom and service workshop.

Council has assisted the Proponent to identify several land options within the Warrnambool Eastern Activity Centre with the subject site subsequently chosen as the preferred site. It is understood that the Proponent has entered into a contract of sale to purchase the site.

The one opposing submission from Norwey Pty Ltd raised the following key issues:

The Amendment is ad‐hoc planning without strategic justification.

The proposed use is inconsistent with and will undermine the direction of the Eastern Activity Precinct Structure Plan.

The proposal is not accompanied by any justification identifying the need for additional C2Z land in the Eastern Activity Precinct.

The proposed C2Z shows uses that are too broad and without adequate constraints on the type of development allowed.

A Cultural Heritage Management Plan is required for the site as it is in an area of high cultural sensitivity. Until that has been done, no permit can be issued.

The Panel has considered the strategic justification for the Amendment and accepts that, whilst the strategic justification may be lacking on some aspects, on balance the proposed rezoning is justified and will not have substantial adverse implications in terms of achieving the objectives of the planning scheme. The Panel considers the C2Z is the most appropriate zone to apply to the site and that the Amendment should be adopted as exhibited.

The Panel considered whether it would be appropriate to delay the consideration of the Amendment until after a review of the Eastern Activity Precinct Structure Plan is completed. The review has commenced and is expected to be complete by the end of 2016. The Panel concluded that, given the Amendment is considered to have strategic merit in its own right; there is no reason to defer the consideration.


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The Panel believes that it is not entirely clear whether a Cultural Heritage Management Plan is required for the proposal, and has made recommendations in relation to Council clarifying that advice before a planning permit is considered.

Subject to the adoption of the Amendment and clarification of the issues in relation to the Cultural Heritage Management Plan, the Panel supports the issue of a planning permit for the proposal subject to minor changes to the permit conditions.

(ii) Recommendation

Based on the reasons set out in this Report, the Panel recommends:

Amendment C99 to the Warrnambool Planning Scheme be adopted as exhibited. 1.

Subject to the adoption of Amendment C99, the Panel makes the following recommendations in relation to planning permit application PP2015‐0150:

Council should ask Mr Clark to review his advice on whether a Cultural Heritage 2.Management Plan is required, and that advice should be confirmed by the Office of Aboriginal Affairs Victoria.

A permit should not be issued unless either: the advice from the Office of 3.Aboriginal Affairs Victoria is clear that a Cultural Heritage Management Plan is not required; or, a Cultural Heritage Management Plan is prepared and approved.

Subject to the above recommendation, planning permit PP2015‐0150 is 4.supported, subject also to the revised permit conditions as set out in Appendix A of this report.


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1 The proposal

1.1 The Amendment

Warrnambool Planning Scheme Amendment C99 (the Amendment) was prepared by the Warrnambool City Council as Planning Authority. As exhibited, the Amendment proposes to rezone the land at 53‐69 Raglan Parade, Warrnambool, to the Commercial 2 Zone (C2Z).

Figure 1 The area proposed to be rezoned

1.2 The Permit Application

The Amendment is accompanied by an application for a planning permit (Planning Permit Application No. PP2015‐0150) which seeks permission for the following:

Use the land for Motor vehicle sales (and associated repairs and servicing)

Vary the requirements of Clause 52.14 in relation to the size of the office, that exceeds 18 square metres and for the inclusion of on‐site repairs

Display of business identification signage

Create and alter access to a road in a Road Zone Category 1.1

1 Council submission p3.


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1.3 The proposal

The proposal for the site involves the follow key elements:

1,650 square metres of floor space comprising showrooms, office/administration areas and a workshop

A single storey building with a centrally located mezzanine level with a height ranging from 4.8 metres to 6.0 metres and setback 26 metres from Raglan Parade, 20 metres from the eastern boundary and 25 meters from the western boundary

An external display area in the front setback intended to accommodate approximately 80 cars

A workshop with 4 service bays and a repair bay

41 car parking spaces to be used for staff, visitors, service vehicles and vehicle valuations

On‐site loading and unloading areas at the rear of the proposed workshop

A 1.5 metre wide landscape strip on the western boundary.2

The Proponent submitted that site will employ up to 30 staff on site. It is proposed that the showroom will operate six days a week from 8am to 6pm Monday to Friday, and 8.30am to 4.30pm Saturdays. The workshop will operate from 8am to 4.30pm Monday to Friday. The premises will be closed on Sundays and public holidays.

1.4 The subject site and surrounds

The subject site is located along a key entrance to Warrnambool, on the eastern fringe, approximately 3.5 kilometres east of Warrnambool Central Business District in the Warrnambool Eastern Activity Precinct. The subject site is in the General Residential Zone Schedule 1 (GRZ1) and comprises the following three separate ownerships of land, each of which is currently developed with motels fronting Raglan Parade:

53‐63 Raglan Parade, Warrnambool currently used as the ‘Southern Right Motor Inn’

65 Raglan Parade, Warrnambool currently used as the ‘Motel Warrnambool’

69 Raglan Parade, Warrnambool currently used as the ‘Gateway Motor Inn’ and restaurant.

The overall area of the subject sites (53‐69 Raglan Parade) is approximately 16,200 square metres. The surrounding uses include the following:

Gateway Plaza Shopping Centre is approximately 600 metres north‐west of the subject site

Bunnings Warehouse complex is located approximately 250 metres northeast

Warrnambool Homemaker Centre is directly east

North, south and west of the subject site is vacant rural land. Further east is an established residential area approximately 230 metres away

Approximately 180 metres south of the subject site is the Melbourne‐Warrnambool Railway line.



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Figure 2 Site context (extracted from Mr De Silva’s evidence)

The site is part of the Eastern Activity Centre, which Council described as follows:

This is the secondary retail centre in the municipality, located approximately four kilometres east of the City Centre, and consists of over 260 hectares of land. The precinct includes the following uses: Gateway Plaza shopping centre; Woolworths supermarket development and adjoining Dan Murphy’s store; two car dealerships; Warrnambool Homemaker Centre; three motels (subject to this Amendment); Harvey Norman development; Bunnings Warehouse; a mixed use precinct; Wannon Water; and conventional and medium‐density residential development. The precinct currently contains a mix of C1Z, C2Z, Mixed Use Zone, General Residential Zone and Farming Zone land.

1.5 Background to the Amendment

The Proponent advised the Panel that it currently operates two motor dealerships that have been operating for approximately 40 years. These dealerships are Chrysler, Jeep, Dodge and Isuzu (located at 1067 Raglan Parade); and Nissan, Kia and used car dealership (located at 1101‐1109 Raglan Parade). Baulch Motor Group purchased the dealerships in 2007. In 2014 they undertook a redevelopment of the Chrysler, Jeep, Dodge and Isuzu dealership to provide a new showroom and other facilities. As a result of growing demand and the inadequate size of their current site at 1101‐1109 Raglan Parade, Baulch Motor Group is seeking to relocate the Nissan, Kia and used car dealership to develop a new car showroom


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and service workshop. The Panel was advised that the lease of part of the site is due to expire by the end of 2016, adding some time pressure for the Proponent to relocate.

The Proponent considered that the suggested new site for the dealership (the subject site) meets manufacturer siting design requirements, which are:

Highway frontage (high visibility) and accessible to significant volumes of passing traffic;

A minimum lot size of 8,000 square metres.3

The Proponent Group stated in their submission that there were no suitable commercially zoned sites available for the existing Nissan, Kia and used car dealership. In late 2013, Council assisted the group to identify several parcels within the Warrnambool Eastern Activity Centre which were potentially suitable for development of a new car dealership. These parcels included the subject site at 53‐63 Raglan Parade. Accordingly, in May 2015, Baulch Motor Group entered into a contract of sale to purchase 53‐63 Raglan Parade, Warrnambool.

1.6 Issues dealt with in this report

The Panel considered all written submissions, as well as submissions presented to it during the Hearing. In addressing the issues raised in those submissions, the Panel has been assisted by the information provided to it as well as its observations from inspections of specific sites.

The Proponent made submissions supporting the Amendment and permit.

VicRoads made a submission supporting the Amendment and permit, subject to changes to the permit conditions.

The one opposing submission from Norwey Pty Ltd raised the following key issues:

The Amendment is ad‐hoc planning without strategic justification.

The proposed use is inconsistent with and will undermine the direction of the Eastern Activity Precinct Structure Plan.

The proposal is not accompanied by any justification identifying the need for additional Commercial 2 Zone land in the Eastern Activity Precinct.

The proposed Commercial 2 Zone shows uses that are too broad and without adequate constraints on the type of development allowed.

A Cultural Heritage Management Plan is required for the site as it is in an area of high cultural sensitivity. Until that has been done, no permit can be issued.

This report deals with the issues under the following headings:

Planning context

The proposed Amendment

The proposed planning permit.

3 Proponent submission p7.


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2 Planning context

2.1 Introduction

Council provided a response to the Strategic Assessment Guidelines as part of the Explanatory Report and its submission at the Hearing.

The Panel has reviewed the policy context of the Amendment and made a brief appraisal of the relevant controls and other relevant planning strategies.

2.2 State Planning Policy Framework (SPPF)

The Panel considers the following State policy to be the most relevant to the Amendment, as summarised in Council’s submission:

Clause 11.01‐1 Activity centre network has the objective “…to build up activity centres as a focus for high‐quality development, activity and living…”.

Clause 11.01‐2 Activity centre planning has the objective “…To encourage the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres which provide a variety of land uses and are highly accessible to the community”. Strategies include to:

Undertake strategic planning for the use and development of land in and around the activity centres.

Encourage economic activity and business synergies.

Clause 11.01‐3 Supply of urban land has the objective “To ensure a sufficient supply of land is available for residential, commercial, retail, industrial, recreational, institutional and other community uses”. Strategies include:

Ensure the ongoing provision of land and supporting infrastructure to support sustainable urban development.

Ensure that sufficient land is available to meet forecast demand.

Clause 11.09 Great South Coast Regional Growth has the objective “To strengthen the region’s economy through increased diversification, innovation and development”. Strategies include:

Support growth and economic opportunities throughout the region.

Support rural production and associated economic development opportunities including rural industry, rural sales, accommodation and tourism.

Clause 11.09 also states that planning must take into account the Great South Coast Regional Growth Plan 2014.

Clause 15.01‐1 Urban design has the objective “To create an urban environment that is safe, functional and has a sense of place and cultural identity”. Strategies include to “Promote good urban design to make the environment more liveable and attractive”.

Clause 15.01‐2 Urban design principles has the objective “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”. Strategies include:


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Apply the following design principles to development proposals for non‐residential development.

New development should achieve high standards in architecture and urban design.

Clause 17.01‐1 Business has the objective “To encourage development which meet the communities’ needs for retail, entertainment, office and other commercial services and provides net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities”. Strategies include to “Locate commercial facilities in existing or planned activity centres”.

2.3 Local Planning Policy Framework (LPPF)

Council submitted that the Amendment supports the following local planning objectives:

Clause 21.01 Municipal profile states:

Future development needs to take into account the primacy of the Warrnambool City Centre and the need to take into account the primacy of the Warrnambool City Centre and the need to ensure that all efforts are made to consolidate and strengthen the city centre’s retail and other service functions, particularly as this is the principal centre for servicing the surrounding catchment and the wider south‐west region of Victoria.

The Eastern Industrial Precinct located along the Horne Road corridor has been identified as the preferred location to support major industrial development within Warrnambool.

The Clause states that the Warrnambool South foreshore area is the main holiday accommodation precinct. It also states that a lack of alternative accommodation is directed at other market sectors including 4 and 5 star accommodation.

Clause 21.07 Economic development – This Clause includes the objective “To ensure the development of activity centres fosters the development of a high quality urban environment that increases the liveability and amenity of the municipality”. Strategies include:

Ensure the expansion of centres does not compromise the viability of other centres and results in a net community benefit.

Enhance the diversity of centres and broaden the range of facilities available in each, within the defined role of the centre in the hierarchy.

The MSS describes the Warrnambool Activity Centre Network as:

Warrnambool City Centre as the sole principal activity centre with the primary retail core.

The EAP as one of a number of major activity centres in Warrnambool serving a secondary retail rail and providing a range of weekly and discretionary goods to east Warrnambool and surrounding districts.

The MSS states that the EAP consists of several key developments that are unified by the Princes Highway (Raglan Parade), and consists of the following sub‐precincts:


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A regional bulky goods cluster

The Flying Horse Inn mixed use development

Gateway Plaza and Environs.

The MSS states that new investment is encouraged in the EAP to reinforce its role as a major activity centre that supports the City Centre. In relation to ‘Tourism’, the MSS identifies further strategic work to be undertaken. This includes preparing an amendment to the Eastern Activity Precinct Local Structure Plan to respond to the recommendations of the Industrial Land Use Review 2010.

Clause 22.03‐4 Retail and Commercial Use – This Clause states in relation to the Activity Centre Hierarchy that it is policy to:

Ensure that retail and commercial uses are located within existing identified activity centres

Ensure that where a permit is required for proposals, they are generally in accordance with any structure plan, urban design framework or similar document for the activity centre.

Clause 22.03‐5 Eastern Activity Precinct – This Clause recognises “…the EAP as a vital and recognisable extension to the City comprising integrated retail, business, residential, tourism and recreational facilities that are highly accessible and legible to all users, and configured sensitively around the particular natural and landscape qualities that define the City’s predominantly rural fringe”. The Eastern Activity Precinct Structure Plan 2004 (EAPSP) is a reference document in the planning scheme.

2.4 Other planning strategies, policies or reports used in formulating the Amendment

Warrnambool Amendment C63

Amendment C63 to the Warrnambool Planning Scheme implemented many of the findings of the Warrnambool Retail Strategy 2007 and gave effect to the recommendations of the Warrnambool Eastern Activity Precinct Structure Plan 2004.

It provided for the Economic Development Strategy that now forms Clause 21.07 of the Warrnambool Planning Scheme. Clause 21.07 makes a number of relevant references to the role and intent of Warrnambool’s Eastern Activity Precinct Centre.

Warrnambool Eastern Activity Precinct Structure Plan (EAPSP) 2004

The EAPSP, undertaken by Hansen Partnership and Hyder Consulting, was prepared in response to the recommendations of the Amendment C28, C31 and C32 Panel. The EAPSP is intended to guide the major changes in land use, built form and public spaces over a 20 year period.

Amendment C28, C31 and C32 proposed rezoning land to facilitate an expansion of Gateway Plaza Shopping Centre; the development of a supermarket (Woolworths), liquor store (Dan Murphy) and specialty shops; and the establishment of a trade supplies use (Bunnings). The Panel recommended the following:

Council prepare a Structure Plan for the wider Gateway Plaza Precinct, as a matter of urgency. This could be implemented through a Design and


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Development Overlay or a Development Plan Overlay over the whole of the Gateway Precinct Shopping Centre…

Council review clauses 21.10 and 22.03‐2 to ensure that it reflects the longer term planning objectives for the Gateway Plaza as part of its MSS review.4

The EAPSP did not purport to examine or address land use or land supply and demand for commercial, retail or business development. Amendment C43 (gazetted in December 2006) implemented the recommendations of the EAPSP.

Warrnambool Retail Strategy November 2007

The Warrnambool Retail Strategy 2007 was prepared by Ratio Consultants for Council and subsequently implemented via Amendment C63 to the Planning Scheme. Gazetted in June 2010, Amendment C63 introduced a retail and activity centre policy into the Planning Scheme through changes to Clause 21.07 (Economic Development) the introduction of Local Policy at 22.03‐4 (Retail and Commercial Use) and 22.03‐5 (Eastern Activity Precinct).

Warrnambool Economic Development and Investment Strategy 2015‐2020 (EDIS)

The EDIS provides direction and promotion of the initiatives that are considered as necessary to ensure the continued growth and prosperity of the local economy. The EDIS states that based on population growth forecasts, in excess of 4,000 additional jobs will need to be created over the next 20 years. It describes retail trade as a key industry sector in terms of present employment, and car dealerships as a major employer within the municipality.

Amendment C93 – Planning Scheme Rewrite Project

Amendment C93 implements the recommendations of the Warrnambool Planning Scheme Rewrite Project Final Report January 2015. As exhibited, Amendment C93 incorporates the same activity centre hierarchy table as in clause 21.02‐1 identifying motor vehicle sales as an expected type of development in the Principal Bulky Goods Precinct in the EAPSP. Panel Hearings took place in April 2015, and the Panel completed its report in May 2016.

Review of the EAPSP (March 2016)/ draft Eastern Activity Centre Structure Plan 2016

Council is currently undertaking a review of the EAPSP, in a project undertaken by Mesh Consultants. The project brief sets out various issues to be addressed, including the need to review the proposed land uses within the precinct in conjunction with the Industrial Land Use Review. The overall vision for the precinct is set out in the draft EAPSP as:

…to develop the precinct as a genuine mixed use activity centre, comprising a range of retail, bulky goods, office employment and diverse housing opportunities, that supports the primary retail role of the CBD. The EAP will comprise a range of neighbourhoods, each their own distinct and defined character, and an urban town core and network of linked open spaces that will be the focus for community activation.

This draft strategy is subject to statutory exhibition. The draft strategy states that land along the south side of Raglan Parade, including the subject site, is suitable to accommodate a



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combination of highway related and residential uses. It has the effect of changing the structure and balance of land use along the axis of Raglan Parade and south of the Highway.

2.5 Planning scheme provisions

(i) Zones

The Amendment seeks to rezone the land from the General Residential Zone Schedule 1 (GRZ1) to a Commercial 2 Zone (C2Z).

The appropriateness of the proposed zone is discussed in Chapter 3.

(ii) Overlays

No overlays apply to the site.

(iii) Particular provisions

Clause 52.14 Motor vehicle, caravan and boat sales – This clause has the purpose:

To ensure that amenity, site layout and design are considered when land is to be used for motor vehicle, boat or caravan sales, especially if the site adjoins a residential zone.

and

To ensure that use of land for motor vehicle, boat or caravan sales does not impair traffic flow or road safety.

2.6 Ministerial Directions and Practice Notes

(i) Ministerial Directions

Council submitted that the Amendment is consistent with:

Ministerial Direction 11 (Strategic Assessment of Amendments)

The Ministerial Direction on the Form and Content of Planning Schemes under Section 7(5) of the Act.

(ii) Planning Practice Notes

Planning Practice Note PN58 – Structure Planning for Activity Centres

This Practice Note outlines the preferred process for preparing and reviewing structure plans. It is expected that local detailed plans are expected to be consistent with higher order regional and state strategies and policies.

2.7 Aboriginal cultural heritage

The site has been identified as within an area of Aboriginal cultural heritage sensitivity, although Council made further submissions on this issue, and this is discussed further in Chapter 4.


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2.8 Conclusion

The Panel is satisfied that the Amendment has been prepared in accordance with the relevant Ministerial Directions and Planning Practice Note.

The Panel provides a discussion and recommendations in relation to the strategic justification of the Amendment in Chapter 3 of this Report.


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3 The proposed Amendment

3.1 The issue

Is the proposed rezoning strategically justified?

3.2 The proposed change of zone

The Amendment proposes to rezone the site from the existing General Residential Zone (GRZ) Schedule 1 to the Commercial 2 Zone (C2Z).

The Proponent advised that, within Warrnambool, existing car dealerships are located within the Commercial 1 Zone (C1Z), C2Z and Industrial 3 Zone (IN3Z). The Proponent submitted that the C1Z was an inappropriate zone for the subject site given the wide range of ‘as of right’ uses, and that “…the zoning of the subject site to C1Z would have the potential to undermine the retail hierarchy established within clause 21.07”.

The Proponent noted that the purpose of the Commercial Zone is to:

Encourage commercial areas for offices, appropriate manufacturing and industries, bulky goods and retailing, other retail uses, and associated business and commercial services.

Ensure that uses do not affect the safety and amenity of adjacent, sensitive uses.5

The Proponent considered that the purpose of the Commercial Zone is appropriate to facilitate the development of a range of commercial and retail uses while ensuring that the amenity of existing motels is not impacted.

The Proponent submitted:

The Amendment seeks to rezone land to facilitate the use and development of land for a car dealership and to recognise existing commercial accommodation uses. The existing motels can continue to successfully trade under the C2Z for as long as this represents the ‘highest and best value use’ of this land.6

The Commercial 2 Zone is considered to be the most appropriate zone in the context of the proposed development, existing uses and policy direction to encourage a range of complementary uses within the Eastern Activity Centre.7

5 Proponent submission p23. 6 Proponent submission p24. 7 Proponent submission p24.


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3.3 Evidence and submissions

(i) Warrnambool City Council

Ms Kate Morris, appearing for Council, submitted that the rezoning is necessary to facilitate the proposal because the existing GRZ does not allow for the retail use proposed in the Permit Application. The proposed ‘Motor vehicle sales' use is included in 'Retail’ which is prohibited in the GRZ.

Council submitted that the existing GRZ zoning does not reflect the current and historical use of the site for ‘Motel’. It submitted that “the existing cluster of 'Motel' uses are essentially, commercial uses serving a regional rather than local community need. Bearing this in mind, their use does not sit comfortably with the purposes of the GRZ”, which include:

To allow educational, recreational, religious, community and a limited range of other non‐residential uses to serve local community needs in appropriate locations.

Council submitted that: “a commercial zone is most appropriate for the Subject Land because of its location in the EAP, a major activity centre in Warrnambool and more specifically, directly abutting the identified bulky goods cluster within the EAP.”

Council submitted that the C2Z will best enable the subject land to contribute to achieving objectives for the EAP and the establishment of bulky goods uses, or uses complementary to bulky goods, such as highway sales and showrooms on the subject land would be consistent with the purposes of the C2Z. This would enable a permit to be granted for retail premises such as motor vehicle sales.

Council submitted that C1Z is not appropriate as it allowed a wider range, and is more suited to a core retail area in an activity centre rather than a location on the periphery of an activity centre.

Council referred the Panel to Plan 1b in Clause 21.07 (See Figure 3 below) where “the Subject Site is not only identified as being located in the boundary Activity Centre, but also within the 'Core Commercial Boundary’”.


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Figure 3 Plan 1b from Clause 21.07 (Eastern Activity Centre)

Council submitted that the C2Z would facilitate and encourage uses that are complementary to the existing uses in that precinct:

Given the size of the Subject Site and its excellent highway exposure, it is more than likely that it will attract some much needed new investment in the EAP in the form of highway sales uses, consistent with local planning policy which encourages new investment in the EAP to deliver an expanded range of complementary roles and services that reinforce its role as a major activity centre,8 in particular by encouraging the establishment of complementary activities such as highway sales and showrooms in the EAP.9

Council submitted that, contrary to the evidence of Mr Milner, the Amendment does not depart from the gazetted policy of the EAP. Council submitted that the rezoning does not expand the Activity Centre because it is already inside the Activity Centre boundary.

Council strongly objected in response to suggestions that allowing the proposal would be premature and contrary to orderly planning pending the outcome of the EAPSP review. Council submitted that the proposal is already supported by the existing detailed policy framework in the Planning Scheme relating to activity centres, and the EAP specifically, and the Amendment should not be delayed by the completion of the EAPSP review.

Council submitted that the proposal does not facilitate an expansion of the EAP activity centre. It simply recognises the broad strategic role that the subject site has played for

8 Clause 21.07 – Economic Development p2 9 Council closing submission


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many years already as a 'commercial site' in the EAP activity centre, a role that is already explicitly recognised in the planning scheme.

In response to submissions that there are ample alternative sites within the EAP suitable for a car yard, Council submitted that it is apparent from an inspection of the land within the EAP that there is currently no vacant commercial zoned land with highway exposure that would be suitable for the uses proposed as part of the Permit Application.

Council submitted that “it is not necessary to specifically show that there is a need for additional C2Z land in the EAP. Rather, it is necessary to show that the increase in supply of land in the C2Z associated with Amendment C99 will not undermine the effective operation Council's Activity Centre policy specifically in relation to the Warrnambool City Centre and the EAP”. Council submitted that the increase in supply of C2Z land as part of the Amendment will not undermine the effective operation of Council's Activity Centre policy in relation to the EAP.

Mr De Silva supported Council’s position that the EAPSP should be treated as a general guideline for land use in the area. In his evidence Mr De Silva stated that the Structure Plan is a reference document, although under cross examination by Mr O’Farrell he conceded that the Structure Plan is now included in the planning scheme at Clause 22.03.

Mr De Silva’s evidence was that the Structure Plan reference to tourism uses on the south side of Raglan Parade (including the subject land) appears to acknowledge the existence of motels in this location rather than stemming from a specific desire to accommodate tourism uses in that location. He added that “from a tourism perspective, the land is not likely to be sought after for high quality tourist accommodation, which is better directed to other locations such as the foreshore and Lake Pertobe Precincts”.

Mr De Silva highlighted the economic importance of the EAP and gave evidence that strategic support for the Amendment can be found in the Great South Coast Regional Growth Plan which includes a strategy to facilitate the expansion of the Eastern Activity Centre as the secondary retail centre and service centre for Warrnambool.10 He noted Clause 21.07 Economic Development which also highlights the secondary retail role of the EAP. Mr De Silva noted the following words in the Clause 21.07 description of the EAP:

New investment is encouraged in the EAP to deliver an expanded range of complementary roles and services that reinforce its role as a major activity centre but in a manner which supports the City Centre.

Mr De Silva gave evidence that the Warrnambool Retail Strategy 2007 provides strategic support for the Amendment by its clear reference to the EAP as the preferred location for bulky goods and other highway related uses. He acknowledged that the Retail Strategy is not a reference document in the planning scheme, but argued that it is an important piece of strategic work that informs strategic planning in Warrnambool.

Mr De Silva gave evidence that the rezoning would have negligible impact on the supply of C2Z land, and is unlikely to be sought after for residential use. His evidence was that the

10 Great South Coast Regional Growth Plan p35‐37


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current zone doesn’t best reflect the current or future use, and the Amendment should be supported as it creates a better outcome for the land.

Mr De Silva gave the following summary of his opinion:11

The proposed Amendment and use of part of the land for a new car dealership:

Will enhance Warrnambool’s role as a Regional City

Has the potential to advance the objectives of the EAPSP

Does not have the potential to cause any unacceptable amenity impacts

Will not lead to a significant loss of land for tourism related uses

Will not have a negative impact on land supply for bulky goods purposes

Is appropriate in the Commercial 2 Zone

Is in accordance with State and Local Policy.

Under cross examination from Mr O’Farrell, Mr De Silva did not agree that the Structure Plan doesn’t support the proposed rezoning. He accepted that the area is referred to on the plan as Tourism/Accommodation, but gave the opinion that, when the words in the planning scheme are considered in context, it is consistent.

(ii) The Proponent

At the Hearing, Mr Steve Myers on behalf of the Proponent referred to the draft Eastern Activity Centre Structure Plan 2016, which he acknowledged has not yet been subject to statutory exhibition. He commented that the draft Plan “…identifies land on the south‐side of Raglan Parade (including the subject site) as being suitable to accommodate a combination of highway related and residential uses”.12

Mr Myers submitted that, with the municipality’s expected population growth, there will be increased demand for retail, showroom, trade supplies and services. He further submitted that:

New investment and complimentary activities are encouraged in the Eastern Activity Centre.

More commercial land within the activity centre is required.

The C2Z is the most appropriate zone for the subject sites.

Mr Myers noted that Plan 1b in Clause 21.07 shows the subject site within the ‘Core Commercial Boundary’ (solid blue line) but outside the ‘Bulky Goods Precinct’.

Mr Myers referred to the table on page 3 of Clause 21.07, which states the following types of development are expected in the EAP:

Retail: Large restricted retail premises, with provision for a limited Convenience Node. Opportunity also for a limited number of large format retail shops with a minimum floor area of 1,000 square metres (shops in the

11 From Mr De Silva’s PowerPoint presentation to the Hearing 12 Proponent submission p13


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form of superstores – not discount department stores or supermarkets) in the Warrnambool Homemaker Centre.13

He noted that the table in Clause 21.07 also includes ‘Other Commercial: Showroom development encompassing…highway sales such as auto‐sales, caravan or boat sales’, which is also noted as an objective to be encouraged in clause 21.07 of the planning scheme.

Mr Myers further submitted that the objective applies to the entire Eastern Activity Centre and does not specify the location of these uses within the ‘Bulky Goods Precinct’ or the ‘Retail Core Area’. He noted that Clause 22.03‐5 states:

The Indicative use of land is identified on Map 1: Warrnambool Eastern Activity Centre Precinct Structure Plan Concept and described in the table to Clause 21.07 headed ‘City of Warrnambool Activity Centre Hierarchy: Role and Function of Centres.14

Mr Myers highlighted the use of the word ‘indicative’.

He stated that in terms of the 2004 EAPSP, “…there has been a degree of flexibility in the implementation of this document over many years”.15

In relation the most appropriate zone for the subject land, Mr Myers submitted that the Amendment seeks to rezone land to facilitate the use and development of land for a car dealership and to recognise existing commercial accommodation uses. The existing motels can continue to successfully trade under the C2Z for as long as this represents the ‘highest and best value use’ of this land.

He submitted that, consistent with Ms Kilpatrick’s evidence, the C2Z is an appropriate zone for a wide range of tourism and accommodation uses, as well as the proposed car dealership. The C2Z is considered to be the most appropriate zone in the context of the proposed development, existing uses and policy direction to encourage a range of complementary uses within the Eastern Activity Centre.

Mr Myers called Ms Kilpatrick, who gave evidence that the revised 2016 draft Warrnambool EAPSP identifies the subject site as expansion of bulky goods/highway related uses. She considered that the current EAPSP does not reflect the recent developments in the area. Accordingly, she considered that the Council review of the EAPSP reinforces that the existing Structure Plan in clause 22.03 is outdated.

Ms Kilpatrick further noted that Clause 21.07‐1 states that new investment is encouraged in the EAPSP to provide complimentary services that reinforce its role as a major activity centre, in a manner which supports the ‘City Centre’. She further commented that the location is noted in Clause 21.07‐2 to encourage the establishment of highway sales and showrooms in the EAPSP. Accordingly, she considered that a car sales centre is appropriate for the location, and that the C2Z is the most appropriate zone.

13 Proponent submission p18. 14 Proponent submission p20. 15 Proponent submission p21.


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Mr Myers advised the Panel that his client had conducted a thorough search for a suitable site and concluded that the subject site is the only site within the EAP that is likely to be available within the timeframes required by his client’s business needs.

Mr Stephens gave evidence that:

Provision of Commercial 2 Zone land in Warrnambool is not excessive.

The difficulty in Baulch Motor Group identifying a suitable site for their needs indicates an undersupply of appropriately located and zoned land.

My Stephens concluded that the proposed increase in supply of Commercial 2 Zone land is an appropriate and proportional response to a demonstrated demand for land able to accommodate motor vehicle sales and repairs.

Mr Stephens gave evidence that, if the Amendment did not proceed, it would have a significant impact on the operations of Baulch Motors, including the loss of some, or all, of the 28 positions currently employed at the existing dealership.

Mr Stephens’ expert witness statement notes the completive nature of the motor vehicle sales and repair market in Warrnambool will also be enhanced as a result of the Amendment and accompanying planning permit.

(iii) Norwey Pty Ltd

At the Hearing, Mr O’Farrell of Counsel provided a submission on behalf of Norwey Pty Ltd, the owner of the Warrnambool Homemaker Centre. He submitted that Norwey is opposed to the Amendment because they consider that it is outside the scope of what the planning scheme provides.

Mr O’Farrell noted that the planning scheme provides for ‘Tourism/Accommodation Form’, which arose from a structure planning process. This process, which led to planning scheme Amendment C63, introduced new policies at clause 22.03‐4 and 22.03‐5, and Council adopted the Amendment in the form recommended by that Panel. Mr O’Farrell noted Council’s submission at the recent C93 Panel Hearing in April 2016:

Clause 21.02‐1 contains the Activity Centre hierarchy for the city, which was underpinned by Council’s Retail Strategy and implemented via Amendment C63 in 2010. Amendment C63 was implemented following a rigorous assessment process and Panel hearing. Any policy change to these provisions will be informed by future strategic work…16

Mr O’Farrell submitted that the fact that a lease at a car dealership is said to be expiring, and that a larger site is required with highway frontage, is “…amongst the thinnest justifications” and that the Amendment is “an ad hoc rezoning should be abandoned”.

Mr O’Farrell submitted that the proposed rezoning would not provide a net community benefit, which is integral to the objectives of planning. He noted that within various parts of the planning scheme, the subject land is identified for Tourism/Accommodation form, and submitted that the site is well located for tourist accommodation, with highway frontage

16 Norwey submission p6.


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and on the route between the Twelve Apostles, Portland, Port Fairy and further west towards South Australia.

He further submitted that the LPPF identifies general roles for different parts of the EAP, and that the subject land is within the ‘Tourism/Accommodation’ area. The proposed use is one that is for location within a bulky goods precinct, yet the subject land is outside the bulky goods precinct. Mr O’Farrell further noted that “vast tracts of unzoned land within the bulky goods precinct” remain. Accordingly, Mr O’Farrell stated:

…not only is this amendment seeking to place motor vehicle sales/repairs on land identified in a structure plan for tourism/accommodation, but it is also seeking to add 16,600m2 of Commercial 2 zoned land in circumstances where there is already ample unzoned land within the bulky good precinct…the addition of this amount of land would be a gross unplanned provision considering how much vacant land is available within the precinct.17

Mr O’Farrell submitted that Clause 22.03‐5 specifically identifies the precinct’s tourism/accommodation function.

Commenting on the draft review of the Structure Plan, Mr O’Farrell stated that it “…contains no justification for the change in function for the subject land other than on page 9 which merely references the amendment/permit application”.18

Mr O’Farrell further submitted:

…the amendment and permit application are premature in circumstances where the Council is undertaking a review of the relevant structure plan and the retail strategy. 19

Mr O’Farrell further noted that at the recent Panel Hearing for Amendment C93, Council submitted in relation to the EAP and the hierarchy of Activity Centre; and that Council’s position has altered in relation to the current Amendment. During this recent Hearing, Council supported the following:

Ensure that any proposed use or development within the Eastern Activity Precinct is generally in accordance with the Eastern Activity Precinct Structure Plan, including the Eastern Activity Precinct Framework Plans… 20

Mr O’Farrell submitted that the review of the Structure Plan which is currently underway should be regarded as having no status and should not be relied upon to justify this Amendment:

It is submitted that the Panel ought reject the Council and proponent’s approach in seeking to rely upon a planning exercise that is yet to take place, and of which the outcome is unknown. It is yet to go through any public process and scrutiny by the planning system.

17 Norwey submission p9 18 Norwey submission p10 19 Norwey submission p10 20 Norwey submission p11


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This is particularly the case in circumstances where the current planning provisions are within a relevant town planning horizon (noting that the Eastern Structure Plan set a time frame for over 20 years in 2004) and which resulted from the implementation of a Structure Plan into the planning scheme in June 2010 through amendment C63.21

Mr O’Farrell submitted that it is of concern that the there is nothing to compel the Proponent to act on a planning permit should one be issued, and this is of concern given the broad range of uses that are either as‐of‐right or discretionary in the C2Z.

Mr Rob Milner, expert witness called by Norwey Pty Ltd, gave evidence that Amendment C99 seeks to depart from the gazetted policy and planning framework, advocating a change in strategic role. He noted that the Amendment is based on a draft revision to the existing structure plan, the Warrnambool Eastern Activity Centre 2016, which he considered should not be given weight. He considered that the proposed Amendment is inconsistent with the adopted policy and structure planning framework, and noted that the need for additional C2Z land is not justified. He stated:

The proposal is contrary to the fair, orderly and economic use of the land and can be characterised as incremental spot zoning.22

Mr Milner considered that the existing use as motel accommodation is consistent with the intent of the policy framework. The Warrnambool CBD is the principal activity centre, whilst the Eastern Activity Centre is a secondary retail centre, based around Gateway Plaza and Warrnambool’s principal bulky goods precinct. The subject land is explicitly excluded from the land identified as the bulky goods precinct.

Mr Milner further noted that the draft structure plan is not supported by any specialist reports to strategically justify the structural shifts of land use composition and distribution. He noted that Clauses 21.05 and 21.07 detail the hierarchical structure of activity centres, referencing detailed structure plans that are to inform the location of preferred activity. This has been the result of a number of strategic studies undertaken over the last 15 years (which are outlined at Clause 21.10) and planning scheme amendments (for instance, Warrnambool C28, 31, 32, 63 and 70).

Mr Milner described the proposed Amendment as “…a spot zoning – incremental opportunism – without appropriate justification”, and premature in the absence of an orderly structure plan review.

Mr Milner gave evidence that:

The proposal has been parachuted in without foundation.

The Commercial zoning should not be extended when the north side of Raglan Parade has not been developed. Land to the north side is more appropriate for car sales.

Structure planning should provide certainty, and this proposal is not in accordance with the existing structure plan.

21 Norwey submission p9‐10 22 Mr Milner expert witness statement p4


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Tourism is shown explicitly in the planning scheme for that part of the Activity Centre.

He concluded that the Amendment is at best premature and should be abandoned, or at least held until the strategic issues are properly examined through the Structure Plan review.

Under cross examination by Ms Morris, Mr Milner accepted that the subject site is in a core commercial area, but expressed concern that the proposed C2Z encourages bulky goods and gave his opinion that this is not appropriate for the subject site.

Mr Milner also conceded under cross examination that there can be some degree of flexibility in interpreting the Structure Plan and agreed that Structure Plan is conceptual. He reiterated, however, that tourism is a specific objective in the Structure Plan. He accepted that C2Z does not prevent tourism uses.

Mr Milner agreed with Ms Morris that if there is strategic justification for the Amendment, then there is no need to wait. He added that he doesn’t agree that there is strategic justification.

3.4 Discussion

The key issues the Panel has reviewed in formulating a recommendation on the Amendment are:

Is there strategic support for the proposed change in zoning to the C2Z?

Does the Structure Plan allow sufficient flexibility so as the proposed use and development is not prevented?

What is the most appropriate zone?

Is the Amendment premature, and should it be deferred?

Strategic justification

The Panel agrees with Mr De Silva that there is general strategic support in the Great South Coast Regional Growth Plan 2014 and the Warrnambool Retail Strategy 2007 for encouraging new retail activity in the EAP. More specific planning scheme support is contained in Clause 21.07‐2 Economic Development Objectives, which include:

To encourage the establishment of complementary activities such as trade and building supplies, rural and farm machinery supplies, highway sales and showrooms in the Eastern Activity Precinct.

The Panel also believes that the description of the EAP referred to by Mr De Silva is significant in its reference: “New investment is encouraged in the EAP to deliver an expanded range of complementary roles and services…”

Council and the Proponent submitted that the proposed development represents a substantial new investment that ought to be supported. Mr O’Farrell argued that this is not, in its own right a justification.

The question for the Panel is whether, on balance, there is sufficient strategic justification to support the changes proposed in the Amendment. In answering that question, the Panel has reviewed the evidence and submissions on other issues raised with the Panel, to assess whether any are fatal to a decision to support the Amendment.


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The Panel agrees with Mr Milner that the Amendment could be interpreted as ‘opportunist’ and lacking in detailed analysis. It would have been better if Council had done further strategic work on the demand and supply of commercially zoned land, and the impact on the tourism industry of the proposal. The Panel does not, however, believe that the absence of this work is necessarily fatal to the Amendment, and accepts the evidence of Mr De Silva and Mr Stephens that:

The impact on supply of commercially zoned land is negligible

The subject site is not likely to be highly sought after for tourism accommodation, as other locations are now favoured.

The Panel agrees in theory with Mr O’Farrell’s submission, supported by Mr Milner, that it would be preferable for other previously identified commercial sites to be developed for highway sale first. The Panel accepts, however, that the subject site is in the EAP and that commercial uses generally are encouraged in the EAP in Clause 21.07. In any case, the Panel must provide advice on the matter before it and cannot speculate about whether there might be other suitable sites.

On balance, the Panel considers that there is sufficient justification to support rezoning the land to support the proposal, and there are no substantial adverse implications in terms of achieving the objectives of the planning scheme.

The Panel accepts that the EAPSP that is currently in the planning scheme dates from 2004 (brought into the planning scheme via Amendment C63 in 2010), and it is appropriate to update it. That work is proceeding with the EAPSP review and is due for completion in late 2016. That work is in the early stages, however, and the draft currently out for consultation cannot be relied upon as any form of justification of this Amendment.

Flexibility of the Structure Plan

The existing EAPSP, which is included in the planning scheme at Map 1 in Clause 22.03, clearly shows the subject site as ‘Tourism/Accommodation Form’ and shows various other forms such as retail, commercial and ‘Peripheral Sales’ located on other sites. The Policy in Clause 22.03‐5 Eastern Activity Precinct says that “The indicative use of land is identified in Map 1.” The use of the word indicative in this policy, along with the terminology used on Map 1 itself which is titled the “Warrnambool Eastern Activity Centre Precinct Structure Plan Concept” supports Council’s submission that the EAPSP should be treated with some flexibility.

The Panel agrees with Council’s submission, supported by the evidence of Mr De Silva and Ms Kilpatrick, that the Structure Plan should be treated as a guideline rather than a rigid requirement, and should be considered in the context of other policy and objectives in the planning scheme.

The Panel notes that, in any case, ‘Motel’ is still an allowable use within the C2Z, so the objective of providing for tourism uses is not compromised by the rezoning.

The Panel therefore concludes that the reference to the subject site on Map 1 of Clause 22.03 as ‘Tourism/Accommodation Form’ is not a barrier to rezoning the site.


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How flexibly the ‘Tourism/Accommodation Form’ designation in Clause 22.03 can be interpreted also has relevance to whether the permit application is generally in accordance with the planning scheme. This is discussed in Chapter 4.

The most appropriate zone

The Panel accepts the submissions of Council and the Proponent, supported by the expert evidence of Mr De Silva and Ms Kilpatrick, that the C2Z is the most appropriate zone. The proposed zone will not only enable the proposed use also allows the Motels as Section 2 uses.

The Panel agrees with Council that the C1Z is not appropriate as it provides for a wider range of uses more suited to a core retail area in an activity centre.

The Panel agrees with Mr De Silva that the loss of this land from the GRZ is not significant.

The Panel is not concerned that the Amendment will open the door for bulky goods development on the subject site. Plan 1b in Clause 21.07 shows the site as within the Activity Centre Precinct but outside the Bulky Goods Precinct. Whilst the C2Z may allow Bulky Goods, the subject site would not be identified as part of the precinct where bulky goods has express policy preference. If the Amendment is implemented, Council should seek to reinforce this in the review of the EAPSP, and give clear direction on preferred land use and any limitations on the subject site to prevent any unintended extension of the Bulky Goods Precinct.

Is the Amendment premature?

As noted, work is proceeding with the EAPSP review, and it is due for completion in late 2016.

In response to a question from the Panel, Mr De Silva, agreed that it would be more ideal for the EAP review to be completed before implementing this Amendment; although he was quick to add that the risk was low in allowing the Amendment to proceed and nothing is lost by allowing the land to be better utilised for another purpose.

Council put the position that, if the Amendment is strategically justified in its own right, then there is no need to delay it. Mr De Silva supported this and Mr Milner accepted this as a general proposition (although didn’t agree that the Amendment was strategically justified).

The Panel believes that it would be most ideal to wait until the EAPSP review is complete so that a broader range of issues in the EAP can be canvassed, but also believes that it is not the purpose of town planning to frustrate development for the sake of a better analysis if the justification for a proposal is sufficient based on existing policy.

Having concluded that the proposed rezoning is strategically justified (albeit perhaps lacking in some respects), the Panel therefore sees no reason to delay the Amendment pending the EAPSP review.


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3.5 Conclusions

The Panel concludes:

The Amendment is strategically justified.

There are no substantial adverse implications of the Amendment in terms of achieving the objectives of the planning scheme.

The reference to the subject site on Map 1 of Clause 22.03 as ‘Tourism/Accommodation Form’ is not a barrier to rezoning the site.

The Panel sees no reason to delay the Amendment pending the EAPSP review.

3.6 Recommendation

The Panel recommends:

Amendment C99 to the Warrnambool Planning Scheme be adopted as exhibited. 1.


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4 The proposed planning permit

4.1 The issue

If a rezoning is ultimately approved, should the proposed permit be granted, and if so what are the appropriate permit conditions?

The details of the proposal and the planning permit application are as set out in Chapter 1 of this report.

4.2 Aboriginal cultural heritage

(i) The issue

Council acknowledged that a permit cannot be granted if a Cultural Heritage Management Plan (CHMP) is required and has not already been prepared and approved by Aboriginal Affairs Victoria (AAV).

(ii) Submissions

Council submitted:

Section 46(a) of the Aboriginal Heritage Act requires a CHMP for a proposed activity (i.e. a development or use of land) if the Aboriginal Heritage Regulations (AH Regulations) require the preparation of the CHMP for that activity. Whether a CHMP is required is a matter of fact to be determined by reference to the relevant AH Regulations.

Regulation 6 of the AH Regulations indicates that a CHMP is required for an activity if:

all or part of the activity area for the activity is an “area of cultural heritage sensitivity”; and

all or part of the activity is a “high impact activity”.

There is no doubt that the Permit Application is for a high impact activity. The issue is whether all or part of the activity area is in an area of aboriginal cultural heritage sensitivity.

Areas of aboriginal cultural heritage sensitivity are specified in Division 2 of the Aboriginal Heritage Regulations. The specified areas comprise registered Aboriginal cultural heritage sensitivity Places as well as various types of landforms and land categories that are generally regarded as more likely to contain Aboriginal cultural heritage.

To assist in identifying areas of Aboriginal cultural heritage sensitivity, AAV provide maps on their website indicative information about the location and extent of areas of cultural heritage sensitivity. The maps on the AAV website are helpful as first point of reference, but ultimately, an assessment needs to be made about whether land is in an area of Aboriginal cultural heritage sensitivity having regard to the Aboriginal Heritage Regulations.


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In making an assessment about this in relation to the part of the Subject Land subject of the Permit Application, Council has considered and accepted a report by Nicholas Clark of Clarkeology tendered by the Proponent which concludes that land has been incorrectly marked or mapped on the AAV website. It concludes that the land is not actually located in an area defined by the Regulations as being an area of cultural heritage sensitivity. Mr Clark is a qualified Aboriginal heritage advisor and is recognised as such by AAV.

Council concluded that a CHMP is therefore not required and a planning permit application can be granted.

Mr O’Farrell submitted that the Clarkeology report contains errors and cannot be relied upon. He referred the Panel to section 52 of the Aboriginal Heritage Act 2006 which states:

52(1) The decision maker must not grant a statutory authorisation for the activity unless a cultural heritage management plan is approved under this Part in respect of the activity.

He submitted that the Panel has not been equipped with information to enable it to make a recommendation as to whether there is any cultural heritage fabric on the land.

(iii) Discussion

The Panel accepts that Mr Clark is a qualified Aboriginal heritage advisor and that he has provided a report to Council in relation to whether a CHMP is required.

Mr O’Farrell has raised an issue that may indicate an error in the report, and the Panel believes that Council should satisfy itself that the report is accurate before it relies on that to determine whether a CHMP is not required. As noted by Mr O’Farrell, the Panel was not given the opportunity to question Mr Clark, and so is not in a position to un‐categorically accept that a CHMP is not required. At the very least Council should put the issues raised by Mr O’Farrell to Mr Clark and ask him to review his advice. Confirming advice should also be sought from the Office of Aboriginal Affairs Victoria. It is understood that no Registered Aboriginal Parties are appointed in this area.

(iv) Conclusion

The Panel concludes that Council should ask Mr Clark to review his advice on whether a CHMP is required, and that advice should be confirmed by the Office of Aboriginal Affairs Victoria. A permit cannot be issued unless either that advice is clear that a CHMP is not required; or a CHMP is prepared and approved.


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4.3 Should a planning permit be granted?

(i) The issue

If the site is rezoned, should a permit be issued?

(ii) Submissions

Council submitted that there is strategic support for the permit application for the following key reasons:23

the Subject Land is located in the EAP, which is identified as a major activity centre in the LPPF

the Subject Land directly abuts the WHC, which forms part of a regional bulky goods cluster

the LPPF encourages new investment in the EAP to deliver an expanded range of complementary roles and services that reinforce its role as a major activity centre. A 'motor vehicle sales' use would be complementary to the existing bulky goods uses in this part of the EAP and would reinforce the EAP's role as a major activity centre

the proposed use of the Subject Land for 'motor vehicle sales' is consistent with the planned role of the EAP as set out in the Activity Centres Hierarchy at page 3 of Clause 21.07. Specifically, it is consistent with the role of the EAP as a Principal Bulky Goods Precinct providing a wide range of infrequently‐purchased, large, discretionary household goods. Further, 'motor vehicle sales' is one of a number of types of commercial developments expected in the EAP.

Council submitted that an ‘Motor vehicle sales' use of the scale proposed in the permit application is likely to assist in achieving numerous objectives for the EAP set out in the LPPF including:

to facilitate the development of a unified, more cohesive precinct, through the delivery of physical and visual integration between Gateway Plaza and Environs, the bulky goods clusters and future surrounding neighbourhoods

to encourage the establishment of complementary activities such as highway sales and showrooms in the EAP

to establish Raglan Parade as one of the premier business and activity addresses in Warrnambool and an attractive and recognisable urban corridor defining the City's eastern entry

to achieve harmonious integration between individual commercial developments and existing residential fabric

to generate a clear urban form and activity transition across the Precinct

to achieve an intensity of activity across the EAP that creates the critical mass of people, facilities and services.

23 Council submission p25


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Council acknowledged that:24

The proposed use of part of the Subject Land for 'motor vehicle sales' is not generally in accordance with the EAPSP as extracted in Clause 22.03 Economic Development in the Planning Scheme. It is not generally in accordance with the EAPSP because the Subject Land is located within an area identified for Tourism/Accommodation built form rather than Retail/Commercial built form or Peripheral sales form. However, Council submits that this should not be fatal for the proposal given the Permit Application otherwise enjoys some strategic justification. In the circumstances, Council submits that the Policy should be applied flexibly here.

Mr Myers, on behalf of the Proponent supported Council’s assessment, concluding that “the use and development of land at 53‐63 Raglan Parade for the purposes of car sales and associated motor repairs and servicing is appropriate and potential off‐site impacts can be suitably addressed through planning permit conditions.”

Mr O’Farrell submitted that “there could not be a clearer example of a proposal that is not ‘generally in accordance with’ the Structure Plan that is incorporated into the planning scheme at page 9 of clause 22.03. It simply cannot be said that car sales and motor repairs is indicative of Tourism/Accommodation and visa versa. They are diametrically opposed land use functions.”

Mr O’Farrell submitted that the proposed uses sit outside the ‘Roles and Function’ statements of the table to clause 21.07‐1 which expects “other commercial – including highway sales such as motor vehicle sales” within the Bulky Goods Precinct. He noted that the subject site is, however, not within the Bulky Goods Precinct.

(iii) Discussion

The Panel agrees with Council that the permit has general strategic support and would achieve the objectives of the EAP. In particular, the Panel has previously noted the following objective of the EAP in Clause 21.07‐2:

To encourage the establishment of complementary activities such as trade and building supplies, rural and farm machinery supplies, highway sales and showrooms in the Eastern Activity Precinct.

The Panel notes Mr O’Farrell’s submission that ‘Motor vehicle sales’ appears in the Table in Clause 21.07 as an ‘Expected type of development’ in the ‘Principal Bulky Goods Precinct’ rather than the ‘Secondary Retail Centre’. It is not clear in this table what the ‘Secondary Retail Centre’ area is. Plan 1b (see Figure 3) defines the area of the ‘Bulky Goods Precinct’ but has no reference to ‘Secondary Retail Centre’. The subject site is clearly outside the ‘Bulky Goods Precinct’ but it is not clear to the Panel what ‘expected type of development’ is intended to apply to a site that is not in the ‘Core Retail’ area but is within the ‘Core Commercial Boundary’. In any case the Panel is of the view that the Table in Clause 21.07

24 Council submission p26


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should only be regarded as a guide. The terminology in the table supports that with the words ’Expected type of development’.

As previously noted, the Policy in Clause 22.03‐5 Eastern Activity Precinct says that “The indicative use of land is identified in Map 1.” The use of the word indicative in this policy, along with the terminology used on Map 1 itself which is titled the “Warrnambool Eastern Activity Centre Precinct Structure Plan Concept” seems to support Council’s submission that the EAPSP should be treated with some flexibility. The Panel believes this flexibility should also extend to determining whether a permit application is ‘generally in accordance with’ the planning scheme.

It is correct to say that the proposed use of the subject site for ‘Motor vehicle sales’ is not consistent with ‘Tourism/Accommodation Form’ as shown on Map 1 of Clause 22.03. However, when the Map itself is said to be a ‘concept’ and use of land ‘indicative’, it does not follow that non‐compliance with the map is necessarily non‐compliance with the planning scheme. In this case the Panel accepts that the proposal otherwise has strategic merit and supports the objectives of the EAP, and therefore concludes that non‐compliance with the ‘indicative’ built form is not fatal to supporting a planning permit for ‘Motor vehicle sales’ on the site.

(iv) Conclusion

The Panel concludes that:

There is strategic support for the permit application

The proposal is likely to assist in achieving numerous objectives for the EAP set out in the LPPF

Non‐compliance with the ‘indicative’ built form shown in Map 1 of Clause 22.03 is not fatal to supporting a planning permit for ‘Motor vehicle sales’ on the site.

4.4 Permit conditions

Council proposed a number of minor changes to respond to conditions requested by VicRoads, and to correct minor drafting errors.

The changes requested by VicRoads are minor. Council has proposed permit conditions that will enable the final design of outer separator breaks and entrance treatments to be determined at the final design phase. The Panel supports this approach.

The Proponent generally supported the proposed minor changes, and no other party made submissions in relation to the permit conditions.

4.5 Recommendations

In the event that the subject land is rezoned to the Commercial 2 Zone, the Panel makes the following recommendations in relation to planning permit application PP2015‐0150:

Council should ask Mr Clark to review his advice on whether a Cultural Heritage 2.Management Plan is required, and that advice should be confirmed by the Office of Aboriginal Affairs Victoria.


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A permit should not be issued unless either: the advice from the Office of 3.Aboriginal Affairs Victoria is clear that a Cultural Heritage Management Plan is not required; or, a Cultural Heritage Management Plan is prepared and approved.

Subject to the above recommendation, planning permit PP2015‐0150 is 4.supported, subject also to the revised permit conditions as set out in Appendix A of this report.


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Appendix A Revised planning permit conditions

Planning and Environment Regulations 2015 ‐ Form 9. Section 96J

Date issued:

Date permit comes into operation:

(or if no date is specified, the permit comes into operation on the same day as the amendment to which the permit applies comes into operation)

Signature for the responsible authority:

Permit No.: PP2015‐0150

PLANNING PERMIT GRANTED UNDER SECTION 96I OF THE PLANNING AND ENVIRONMENT ACT 1987

Permit No.: PP2015-0150 Planning Scheme: Warrnambool Planning Scheme Responsible Authority: Warrnambool City Council

ADDRESS OF THE LAND: Lot 1, Title Plan 014345Y, 53-63 Raglan Parade, Warrnambool THE PERMIT ALLOWS:

Construction of buildings and works for car dealership, use of land for car sales and motor repairs and servicing,display of business identification signage, access to a Road Zone 1 and variation to the requirements of Clause 52.14 of the Warrnambool Planning Scheme. THE FOLLOWING CONDITIONS APPLY TO THIS PERMIT:

Plans

1. All buildings and works must be constructed and undertaken in accordance with the endorsed plans to the satisfaction of the responsible authority prior to the use starting.

Developer Works

2. Prior to the commencement of works for the development (including any preliminary site preparation and establishment works), the applicant must submit detailed design drawings which provide for the following: Construction of developer works including road and drainage infrastructure in accordance with the responsible authority’s Design Guidelines, including:

a) Closure and reinstatement of the outer separator (median) between the existing service lane and highway adjacent the subject land;

b) Construction of a new outer separator (median) for a service lane exit point to the highway west of the development, including traffic management to discourage heavy vehicle traffic (leaving the subject site) traveling further to the west along the service lane.

c) Upgrade of the existing service lane between the existing entry and the new exit to cater for heavy vehicle traffic associated with the proposed use, including; i. asphalt surfacing

ii. road pavement rehabilitation and widening iii. kerb and channel (both sides) iv. traffic management, signage and line marking v. street lighting

vi. landscaping


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vii. a shared concrete footpath viii. on street parking provisions.

Detailed design drawings for the above items must be submitted to and approved by the responsible authority and will form part of this permit.

3. Before the use begins and/or the building(s) are occupied, the developer works as described in Condition 2 must be constructed to the satisfaction of the responsible authority, at the full cost of the applicant.

Schedule of Materials and Colours

4. Before the development starts, a schedule of construction materials, external finishes and colours to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the schedule will be endorsed and will then form part of the permit.

5. The exterior colour and cladding of the building must be of a non-reflective nature and finished in muted tonings to the satisfaction of the responsible authority.

Construction Management Plan

6. Before the commencement of works for the development (including any preliminary site preparation and establishment works) a Construction Management Plan must be submitted to and approved by the responsible authority. The Construction Management Plan must include and address the following: a) Details of Public Safety, Amenity Considerations and Site Security. b) Environmental Management Plan (EMP) in accordance with the Environment

Protection Authority document Environmental Guidelines for Major Construction Sites, February 1996 or its successor document, including:

i. Operating Hours, Noise and Vibration Controls; ii. Air and Dust Management; iii. Stormwater and Sediment Control; and iv. Waste and Materials Reuse Management.

c) Construction Program. d) Traffic Management Plan. e) Evidence of Responsible authority approvals and insurance required to undertake

works. f) Asset Condition Report, with photos and assessment of any prior damage to public

infrastructure and identified actions to minimise damage to infrastructure during construction.


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Once approved, the Construction Management Plan will be endorsed and form part of this permit.

7. To safeguard the local amenity, reduce noise nuisance, and to prevent environmental pollution during the construction period:

a) Stockpiles of topsoil, sand, aggregate, spoil or other material must be stored clear of any drainage path or easement, natural watercourse, footpath, kerb or road surface and must have measures in place to prevent the movement of such material off site.

b) Building operations such as brick cutting, washing tools, concreting and bricklaying must be undertaken on the building block. The pollutants from these building operations must be contained on site.

c) Builders waste must not be burnt or buried on site. All waste must be contained and removed to a Waste Disposal Depot.

8. All works on the land must be undertaken in accordance with the endorsed Construction Management Plan to the satisfaction of the responsible authority.

Storm Water Management Plan

9. Before the commencement of works for the development, (including any preliminary site preparation and establishment works) a Storm Wwater Management Plan must be submitted to and endorsed by the responsible authority. The plan must be in accordance with the responsible authority’s Design Guidelines, and provide for the following:

a) Underground storm water network to the legal point of discharge. b) Comply with the current best practice performance objectives for Water Sensitive

Urban Design. c) Storm water facilities servicing the proposed development to cater for a 1 in 20 year

storm event. d) A maximum discharge rate from the site is to be determined by computations to be set

at predevelopment levels. e) Details of how the works on the land are to be drained and/or retarded. f) Demonstrate storm water runoff resulting from a 1% AEP storm event is able to pass

through the development via reserves and/or easements, or be retained within development.

10. The endorsed Storm Water Management Plan is to be implemented prior to the use starting.


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Landscape Plan

11. Before the development starts, a Landscape Plan to the satisfaction of the responsible authority, must be submitted to and approved by the responsible authority. When approved, the Landscape Pan will be endorsed and will then form part of this permit. The plan must be drawn to scale with dimensions. The plan must include:

a) A survey (including botanical names) of all existing vegetation to be retained and/or removed;

b) Buildings and trees (including botanical names) on neighbouring properties within at least three (3) metres of the boundary, or where impacted;

c) Details of surface finishes of hardstand areas; d) A planting schedule of all proposed trees, shrubs and ground covers, including

botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;

e) A 1.5-metre-wide landscaping strip on the western and southern boundary. f) A 3 metre wide landscaped area on the southern boundary. f) Proposed trees and/or shrubs should be a minimum two (2) metres tall when planted in

the landscaped areas on the western and southern boundaries. g) The provision of street trees along the frontage of the site. h) Details of site boundary screen fencing and any internal screening, All species selected must be to the satisfaction of the responsible authority.

Completion of landscaping

12. Before the use starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

Landscaping maintenance

13. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.


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Car park construction

14. Before the use or occupation of the development, the car parking area must be provided to the satisfaction of the responsible authority. The works must be designed in accordance with the following where plans are to be submitted to and endorsed by the responsible authority prior to construction.

a) In accordance with Australian Standards b) Finished with an all-weather surface c) Drained in accordance with the endorsed Storm Wwater Management Plan d) Provision for appropriate lighting, signage and line marking e) Driveway crossovers and required traffic management works

to the satisfaction of the responsible authority.

15. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

Vehicle manoeuvering

16. All car parking spaces must be designed to allow all vehicles to drive forwards both when entering and leaving the property.

Number of car spaces required

17. No fewer than 41 car spaces must be provided on the land for the use and development.

Protective kerbs

18. Protective kerbs must be provided to the satisfaction of the responsible authority to prevent damage to fences or landscaped areas.

Vehicular crossings

19. Prior to the use or occupation of the development, the applicant must provide access to the satisfaction of the responsible authority, where:

a) Access is to be provided in in accordance with the responsible authority’s Design Guidelines;

b) The access width provided accommodates all vehicles accessing the development; and c) Clearance is provided to any service / utility infrastructure and street trees. Any

relocation, alteration or replacement required shall be in accordance with the requirements of the relevant authority and shall be at the applicant’s expense.


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Provision of kerb/barriers

20. Concrete kerbs or other barriers must be provided to the satisfaction of the responsible authority to prevent direct vehicle access to Raglan Parade other than via the vehicle crossings shown on the endorsed plans.

Loading and unloading

21. The loading and unloading of vehicles must only be carried out on the land.

General amenity

22. The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

a) transport of materials, goods or commodities to or from the land

b) appearance of any building, 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.

23. No vehicle for sale or hire may be displayed outside the title boundary.

Hours of operation

24. The use (car sales) may operate only between the hours of

8.00 am and 6.00 pm Monday to Friday. 8.30 am and 4.00 pm Saturday.

25. The use (motor repairs and servicing) may operate only between the hours of

8.00 am and 4.30 pm Monday to Friday.

Maximum number of vehicles for sale

26. The number of cars for sale must not exceed 80, as per the requirements of Clause 52.14 of the Warrnambool Planning Scheme.

Delivery times

27. Deliveries to and from the site (including waste collection) must only take place during the approved hours of opening:

8.00 am and 6.00 pm Monday to Friday. 8.30 am and 4.00 pm Saturday.


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Noise control

28. Noise levels emanating from the workshop must comply with the requirements of the Environment Protection Authority document “Noise from Industry in regional Victoria” or its successor document.

29. All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.

30. All plant and equipment must be installed and located so that it does not adversely affect the amenity of the area due to the emission of noise, all to the satisfaction of the responsible authority.

31. Waste collection, loading and unloading and deliveries to the premises are to occur within the hours of operation specified in this permit.

32. The use of external ringers is prohibited.

Car washing

33. All car washing must only be carried out within the bay provided for this purpose.

Plant/equipment or features on roof

34. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the written consent of the responsible authority.

Control of light spill

35. 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.

Garbage storage

36. Provision must be made on the land for the storage and collection of garbage and other solid waste. This area must be graded and drained and screened from public view to the satisfaction of the responsible authority.


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Business Identification Signage

37. The location and details of the sign as shown on the endorsed plans, must not be altered without the written consent of the responsible authority.

38. The sign lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.

Parking signs

39. Signs to the satisfaction of the responsible authority must be provided directing drivers to the area(s) set aside for car parking and must be located and maintained to the satisfaction of the responsible authority. The area of each sign must not exceed 0.3 square metres.

Wannon Water conditions

40. The provision, at the developers cost, of the required sewerage works necessary to serve the proposed development.

41. The provision, at the developers cost, of the required water supply works necessary to serve the proposed development.

42. The developer obtaining the necessary consents and approvals for: Alteration to or connection of on-site plumbing. The discharge of “trade waste” (other than domestic sewage) from the property. Changes to the natural surface levels that result in a greater portion of the building or

allotment not being able to be provided with gravity sewerage services.

VicRroads conditions

43. Prior to the development coming into use, the developer must complete the following works to the satisfaction of, and at no cost to VicRoads: a) The existing central median and outer separator openings of the Princes Highway

(Raglan Parade, located immediately adjacent to the proposed development, must be removed and the area reinstated.

b) The existing east – bound right turn lane into the existing central median opening of the Princes Highway (Raglan Parade), located immediately adjacent to the proposed development, must be removed and the area reinstated.

c) Within the Princes Highway’s (Raglan Parade) existing service road, an additional exit only opening must be installed to a standard and at a location approved by VicRoads.

44. The discharge of any concentrated drainage or sullage onto the Princes Highway West’s (Raglan Parade) road reserve shall not be permitted.

45. The applicant must enter into a formal agreement with VicRoads regarding processes and fees associated with all works undertaken within the declared road reserve of the Princes Highway’s (Raglan Parade).


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Permit expiry

46. This permit will expire if one of the following circumstances applies:

a) The use and development is not started within two (2) years of the date of this permit.

b) The use and development is not completed within four (4) years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing in accordance with the provisions of Section 69 of the Planning and Environment Act 1987.

IMPORTANT INFORMATION ABOUT THIS PERMIT

WHAT HAS BEEN DECIDED? The Responsible Authority has issued a permit. The permit was granted by the Minister under section 96I of the Planning and Environment Act 1987 on approval of Amendment No. C99 to the Warrnambool Planning Scheme.

WHEN DOES THE PERMIT BEGIN? The permit operates from a day specified in the permit being a day on or after the day on which the amendment to which the permit applies comes into operation.

WHEN DOES A PERMIT EXPIRE? 1. A permit for the development of land expires if—

the development or any stage of it does not start within the time specified in the permit; or

the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act 1988 and the plan is not certified within two years of the issue of a permit, unless the permit contains a different provision; or

the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.

2. A permit for the use of land expires if—

the use does not start within the time specified in the permit, or if no time is specified, within two years after the issue of the permit; or

the use is discontinued for a period of two years.

3. A permit for the development and use of land expires if—

the development or any stage of it does not start within the time specified in the permit; or

the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or

the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development: or

the use is discontinued for a period of two years.

4. If a permit for the use of land or the development and use of land or relating to any of the circumstances mentioned in section 6A(2) of the Planning and Environment Act 1987, or to any combination of use, development or any of those circumstances requires the certification of a plan under the Subdivision Act 1988, unless the permit contains a different provision—

the use or development of any stage is to be taken to have started when the plan is certified; and

the permit expires if the plan is not certified within two years of the issue of the permit.

5. The expiry of a permit does not affect the validity of anything done under that permit before the expiry.

WHAT ABOUT REVIEWS? In accordance with section 96M of the Planning and Environment Act 1987, the applicant may not apply to

the Victorian Civil and Administrative Tribunal for a review of any condition in this permit.

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