A recent Planning Panels Victoria report, Moira C88 (PSA)  PPV 34 (3 June 2019), has highlighted the need for local councils to adopt a clear, coherent and up-to-date strategic direction in their planning scheme regarding commercial land zones.
The Panel considered a joint planning permit application and amendment to the Moira planning scheme (Planning Scheme) under section 96A of the Planning and Environment Act 1987 (PE Act). The permit application was for a 8,615 square metre retail centre in Cobram in northern Victoria. The proposed Amendment C88 (Amendment) sought to rezone the subject land from Commercial Zone 2 (CZ2) to Commercial Zone 1 (CZ1) in order to facilitate a full line supermarket and a further 4,800sqm of retail and ancillary space. Ultimately, the Panel recommended that the amendment be abandoned and that a planning permit not be issued.
The site was located outside Cobram’s town centre, approximately 300 metres from the nearest CZ1 and separated by a park and existing light industrial uses. The Panel considered the Amendment and permit to be ‘premature’ and stated that ‘more targeted policy and strategic direction’ is needed in the Planning Scheme for a centre of this scale and nature. The Panel stated that the Shire’s forecast population growth presented an opportunity for Council to revisit Cobram’s existing ‘out-of-date policies and strategies’ and that there was ‘insufficient strategic justification’ in the Moira Planning Scheme to support rezoning the subject land to CZ1.
Mark Bartley and James Nunez of HWL Ebsworth Lawyers represented an objector to the permit application and planning scheme amendment (Now Make Pty Ltd).
The subject land at 2-6 Colgan Street, Cobram is in the CZ2, a zone which prohibits a supermarket larger than 1,800 square metres. The Amendment sought to rezone the land as CZ1 to allow for a full line supermarket of 3,800 square metres within a larger retail centre of 8,615 square metres.
As well as a large supermarket, the retail centre would include a second supermarket of 1,700 square metres, a ‘mini major’ (discount supermarket) area of 635 square metres, a medical centre, 12 retail tenancies, two kiosks and 434 car parks.
The subject land fronts a highway and is in an established industrial-commercial precinct in Cobram. It is approximately 285 metres from the western edge of the town centre retail core.
In 2016, Cobram recorded a population of 6,014.
A lack of strategic justification
The Municipal Strategic Statement in the Planning Scheme was pivotal in the Panel’s report.
Clause 21.07-1 sets out that development in Cobram should be generally consistent with the Cobram Framework Plan 2007, which is a map of Cobram included in the Planning Scheme. The Framework Plan shows the site located in an area with the annotation ‘consolidate restricted retail uses and other complimentary uses’ and the area 300m east of the site, being part of the town centre, has the annotation ‘consolidate retail town centre’. Clause 21.07-1 includes strategies which include:
- Maintain the clear division of land uses;
- Relocate inappropriate, non-core uses in the town centre to more suitable and appropriately zones sites; and
- Protect the town centre by supporting new retail developments that provide active frontages on the ground floor with offices above the ground floor in the streets surrounding the town centre.
The Panel stated that for a retail development of this size the policy contained in clause 21.07-1 is ‘unclear and contradictory’ as it provides policy support for an expanded centre to accommodate retail uses requiring larger sites, while at the same time aiming for a consolidated retail core and vibrant centre. The Panel stated given its extensive retail floorspace and retail mix and its physical separation from the retail town centre the proposal represented a second retail core.
The Panel concluded that there is no specific policy support for a retail centre of the scale proposed; that the proposal did not align with the objective to consolidate the retail town centre; and that in the absence of relevant policy, the proposal should be considered on its merits taking into account its economic impact and impact on the functionality and retail core.
Although the Panel found that the proposal represented a ‘second retail core’, it found that it was not an out-of-centre development for the purpose of clause 17.02-2S in the Planning Scheme. That clause refers to ‘activity centres’.
The Panel referred to a 2007 reference document, the ‘Cobram Strategy Plan’ that identified a large area as the Cobram activity centre. However, the Panel stated it gave ‘greater weight’ to clause 21.07-1 than the ’12-year-old reference document’. The Panel accepted the opinion of one of the Proponent’s planning experts that the subject land was within the Cobram activity centre (as defined by the extent of the commercial zones) and outside and adjacent to the town retail centre as identified in clause 21.07-1 of the Framework Plan map.
The Panel had conducted a site visit of the town and identified the streets that make up the ‘retail core’ of Cobram. The Panel concluded that clause 17.02-2S was not relevant.
Economic impact and net community benefit
One of the Proponent’s experts estimated that the impact of the proposal on the Cobram activity centre would be an initial decrease of $18.9 million or 17.5 per cent, predominantly on existing supermarkets. The decrease would amount to more than 10 per cent over a ten year period. The Panel concluded that although there was sufficient demand in the Main Trade Area for an additional full-line supermarket, the economic impact of the development on the Cobram activity centre was ‘unreasonable’. Further, the Panel stated that there was insufficient information to understand the economic impact on the existing retail core.
The Panel turned to clause 71.02-3 of the Scheme and the need to balance conflicting objectives in favour of net community benefit. The Panel concluded that the proposal would not create an acceptable planning outcome or a net community benefit. The Panel stated that it was not in the community’s benefit to allow a major retail centre to proceed without understanding issues including:
- How the town centre’s two independently operating retail cores will work together; and
- What land uses and structure is needed for the land between the two.
Finally, the Panel stated:
In the absence of more certain policy direction for the town centre, the Panel cautions Council’s support for the proposal without an understanding of the consequences or planning in place to manage them.
The weight given to the Scheme, reference documents and documents adopted by Council
In terms of order of importance, the Panel made clear that the Planning Scheme itself is to be given ‘greater weight’ than reference documents in the Planning Scheme, and reference documents are to be given greater weight than documents adopted by Council (but not incorporated or referred in the Planning Scheme).
As is often the case, the message is to regularly update the Planning Scheme including the planning policy framework. Too often it seems Councils have old documents referenced even where there are new strategies or plans that have not been through a Planning Scheme amendment process.
How can we help you?
HWL Ebsworth Lawyers acts on behalf of a variety of clients, including planning applicants, responsible authorities and objectors in a range of planning, environment and government matters. Our breadth of experience allows us to provide insightful advice to issues including strategic justification in joint planning scheme amendment and permit application matters. If you would like to discuss how this decision affects a proposed development, or any other matter, please do not hesitate to contact us.
This article was written by Mark Bartley, Partner and James Nunez, Solicitor.
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