THE Victorian Civil and Administrative Tribunal has refused permission for a bottle shop to be added to the sales and restaurant activities at Tully’s Shed, in Moorooduc Highway, Mornington.
The decision follows a site inspection by VCAT senior member Russell Byard who described the “shed” as a supermarket offering goods from around the world.
The decision to not allow the bottle shop can only be overturned by the Supreme Court or VCAT.
The 17.3 hectare property at the Wooralla Drive intersection is within a Green Wedge zone which bans shops but allows plant nurseries, sales of primary produce and restaurants.
The VCAT appeal followed Mornington Peninsula Shire’s November 2015 refusal of an application from property owner Estina Pty Ltd to open a bottle shop in addition to the supermarket, restaurant and plant nursery already operating on the site.
“No planning permission can be granted for a shop. Bottle shop being a subcategory of shop and a sub-subcategory of retail premises, is consequently also a prohibited land use,” VCAT senior member Russell Byard said in his written reasons for refusing Estina’s appeal.
Part of the shire’s refusal of the bottle shop was that it “will result in an intensification of a retail use which is prohibited in the Green Wedge zone”.
Opening a bottle shop would have also required Estina to obtain a liquor licence.
Mr Byard said the shire and an objector, former shire councillor and Mt Eliza resident Leigh Eustace, maintained that “planning permission cannot, or alternatively, should not be granted”.
Mr Byard said changes to the use and development at Tully’s Shed – also known as Tully’s Corner Produce Store and Tully’s Stockfeed and Rural Supplies – “have created a complex situation” which involved appeals to VCAT dating back to April 2003.
At that stage, as well as an orchard, the site included a packing shed which appeared to have been used since 1960 “not only for storage, sorting and packing activities in relation to fruit and vegetables, but also for the wholesale and retail sale of such produce [and some] imported onto the land from other places. “Although principally fruit and vegetables, some other limited ranges of goods such as honey, eggs, apple juice, locally made jam and the like,” Mr Byard stated and adding “such trading was lawful by virtue of existing use rights”.
In October 2007 the shire agreed to a plant nursery and in June the following year agreed to a definition of “existing use rights” that limited retail sales through Tully’s Corner Produce Store with fresh produce comprising at least 80 per cent of goods for sale.
Mr Byard said that since 2003 “a so called tree farm raising seedling trees up to a transplantable size” business had replaced the property’s use as an orchard and for grazing. Neither of two existing house “survives as a dwelling”.
“My inspection confirmed the evidence given that the retailing on the site now amounts to something like a supermarket, indeed it really is a supermarket, and quite a substantial one with a wide variety of goods for sale,” he said. He said “a large part of the range of goods on sale are not primary produce in any ordinary sense of the word and certainly not from the land or immediate locality”.
Mr Bayard said bottled and canned food and drink “clearly do not originate from the locality, but come from elsewhere in Victoria, Australia and around the world”.
He said there was bottled mineral water from Italy and other goods from Scandinavia, Turkey and Poland.
“There is a butcher shop section and a seafood section selling seafood from South Australia and Queensland. There is a delicatessen, dairy section and refrigerated goods.
“The range of package teas and coffees on display clearly do not come from the land or adjacent land.
“Even in relation to fresh fruit and vegetables, which might be regarded as primary produce, the offering includes goods that are not grown in this locality including, for example, oranges and bananas.”
Mr Byard said the shire was “quite moderate in submitting that the evidence shows that not even a majority of the goods could be described as fresh primary produce”.
“Many local suburban self-service grocery shops, now referred to as supermarkets, are notably smaller in area and the range of food on offer.” Mr Bayard said supermarkets were a prohibited use in this zone and that produce from the area now only amounts to a small proportion of the total offering”.
In relation to opening a bottle shop, Mr Byard said no grapes were being grown on Estina’s or any adjoining land that could be considered as primary produce.
“The nearest vineyards sought to be relied upon are three kilometres away.
“I find that this proposal is to use land as a shop, indeed a bottle shop, as defined in the planning scheme.
“It is prohibited.”
Mr Bayard went on the say that he would refuse a permit for a bottle shop at Tully’s even if there was discretion “on the grounds of planning policy and planning merit”.
He said large scale retail ventures should be run in commercial zones.
“It is hardly fair to users complying with these planning requirements that other people should compete from out of centre locations with less overheads on cheap land; cheap in terms of price or rent.”
Land zoned for farming “should be devoted to farming and compatible purposes and not blighted with substantial commercial undertakings along highways and other main roads or on rural zoned land”.
First published in the Southern Peninsula News – 2 August 2016
