The proposal fails to respond appropriately to the Mornington Peninsula Activity Centres Strategy.
The proposals scale, built form and visual prominence will dominate the surroundings and fail to respond positively to the surrounding context.
The proposal fails to respond appropriately to the Clause 65 matters in the Victorian Planning Principles.
The proposal fails to respond appropriately to Council's policies regarding the hierarchy of activity centres, and of out-of-activity centre commercial uses.
The proposal will generate unacceptable amenity impacts upon the public realm and surrounding sites in the form of noise, light, offensive odour and traffic.
The proposal will generate unacceptable road safety impacts for road users noting its plan to create access to a classified road using a double wide crossover.
Immediately south of the subject site is a Childcare Centre use.
The extent of lighting associated with the proposal will have adverse impacts upon marine life and biodiversity, bird and sea animal habits, movement and migration.
The proposal for 24 hour operation will especially generate unacceptable amenity impacts re acoustic, light, pedestrian noise, traffic, offensive odour.
The proposal will generate unacceptable social and environmental impacts through the increased litter in road reserves, the beach, and waterways.
The proposal to not cease the use of electronic ordering devices with loudspeakers after midnight will also increase unacceptable acoustic impacts upon the surroundings at times according to the wind conditions.
Wind studies have not demonstrated that nearby residential sites will not be affected by the emission of offensive odour from the business premises, nor has the applicant demonstrated acceptable attenuation of the offensive odour.
The applicant has not demonstrated to an acceptable standard by acoustic, environmental consultants reports that there will not be unaccepable amenity impacts arising from the proposal.
The proposal is a legally ambitious one, and fails to show that it is an "acceptable planning outcome".
VCAT has held in Gordon Avenue Investments Pty Ltd v Greater Geelong CC [2021] VCAT 1005 that (at 33) We say ‘acceptable’ on the basis of the Supreme Court case of Knox City Council v Tulcany Pty Ltd confirming this to be the standard that needs to be met by planning permit applications.
The granting of a permit would be an error in decision making and law noting the judgment of Contour Consultants v Mornington Peninsula SC [2010] VCAT 1797.
In AA Holdings Pty Ltd v Mornington Peninsula SC [2021] VCAT 1441 (at 60) the Member notes: "In Brimin Gem Pty Ltd v Mornington Peninsula SC [2004] VCAT 1381 the Tribunal considered whether a carwash (and not a convenience restaurant, as in this proceeding) was a separate use from a service station. On the facts in that case, the Tribunal found that certain common areas could not be excluded from the service station site."
In AA Holdings Pty Ltd v Mornington Peninsula SC [2021] VCAT 1441 The tribunal Member affirmed Council's decision to refuse to grant a permit.
Council is urged to refuse to grant a permit and defend any bid by the applicant to challenge that decision at VCAT.
