Document 156 - Submission to Kaufland Stores in Victoria ... · Submission to Kaufland Stores in Victoria Advisory Committee – Frank Mangan – 21 March 2019 Page 1 Submission to

Submission to Kaufland Stores in Victoria Advisory Committee – Frank Mangan – 21 March 2019 Page 1

Submission to Kaufland Stores in Victoria Advisory Committee

Introduction

My Background

1. My name is Frank Mangan. My wife and I live at and have done so

since December 1999. Our family and friends generally reside in the Mt Eliza, Mornington

and Mt Martha areas. We are passionate residents of the Mornington Peninsula, focussed

on Mornington.

2. I am a qualified planner with over 30 years experience, mostly in local government planning

in south‐eastern Melbourne. I also hold a tertiary qualification in urban geography.

From 2003 to 2016 I worked in the strategic planning department of the Mornington

Peninsula Shire. In that position I inter alia project managed the Mornington Peninsula

Activity Centres Strategy 2005 and the Mornington Activity Centre Structure Plan 2007

(MACSP) and the related planning scheme amendments. I have therefore a good

understanding of the policy framework for activity centres on the Peninsula.

My submission

3. I’m deeply concerned about the proposed planning scheme amendment for a major

commercial development on ‘the Bata site’ in Mornington. It flies in the face of the planning

policy framework in the Mornington Peninsula Planning Scheme (MPPS) with its very specific

growth policy for the Mornington Activity Centre (MAC) and its opposition to any out‐of‐

centre commercial development. The proposal is a real threat to the longer‐term success of

the MAC.

Moreover, the proposal would reduce the availability of scarce industrial land in Mornington

and hence reduce employment and investment opportunities suitable for this industrial

land.

4. I fully endorse the Shire’s submission and its supporting expert reports, as well issues raised

by the community about inter alia residential amenity, traffic and the impact on the Mt Eliza

Activity Centre.

5. The committee has already heard a wide range of submissions and expert evidence that

express opposition based inter alia on planning scheme provisions.

My submission highlights in detail some of the local policy framework provisions of the

MPPS, which I submit justify the rejection of the proposal.

The general thrust of my submission is as follows.

There may be merit in providing a range of development approvals for the introduction of

Kaufland stores in various parts of Melbourne.

However, here the proposal is not just prohibited by the zone. The Mornington Peninsula

planning context and the MPPS policy framework are diametrically opposed to the proposal

and substantially different compared to the other ‘more metropolitan’ Kaufland sites. On

that basis the Committee is respectfully requested to recommend that the proposed

Mornington site should not be included in the roll‐out of Kaufland stores.


The Committee may wish to recommend that instead a site within the MAC be investigated.

What is being proposed?

6. The amendment seeks to introduce the Specific Sites Overlay (SSO) to enable the

consideration of a Kaufland store on the Bata site, based on an incorporated document, the

‘Kaufland Supermarket Development’. That document would also act as a development

approval based on included plans and approval conditions. This is required as the proposal

is prohibited under current zoning controls.

7. The proposal effectively makes the Industrial 3 Zone (IND3Z) for this site in relation to the

land uses of shop and office similar to a Commercial 1 Zone (C1Z), with only department

store and laundromat remaining prohibited uses.

The uses of supermarket and related bottle shop must be operated by Kaufland or related

entity, otherwise they remain prohibited.

The proposed shop building has a floor area of some 7,000 sq.m. and is to include a

supermarket of some 3,600 sq.m.

8. The Minister for Planning considers that the proposed roll‐out of Kaufland stores has the

potential to deliver significant economic and employment benefits, as well as greater retail

choice.

9. The process shows similarities with that used to assist the Masters stores introduction,

noting that the relevant Committee rejected one of the proposed sites.

General Concerns

10. The ‘Masters example’, if seen as a precedent, could be considered an undesirable

precedent in Mornington. Also based on a rationale to ‘improve competition and choice’ it

has in Mornington resulted in an out‐of‐centre Coles supermarket, which ironically in view of

the ‘Kaufland rationale’ does neither contribute to competition nor choice.

11. Some submissions, and the Explanatory Report, appear to seek support for the amendment

based on it being part of a ‘roll‐out’ of amendments for Kaufland stores. The Committee has

in its Tranche 1 report advised there is merit in the current coordinated process. Whereas

this may be the reason for the format and process for the amendment, it’s not any

substitute for the strategic planning justification. From the perspective of the MPPS, the

consideration of this amendment must stand on its own feet, unaffected by the other

proposals elsewhere.

12. I consider the Explanatory Report deficient in this and other respects.

13. The gross retail floor area of the building is about 7,000 sq.m. My submission is that that is

primarily what the incorporated document allows. The use of the retail area is ‘controlled’

by its plans, which indicates the areas for the supermarket and bottle shop. However, in

reality it will be the operator who will decide the best use of this retail resource, having the

option to seek approval for amended plans. This approach also allows a more realistic

comparison with the floor areas of existing centres, as outlined in the recent Activity Centres

Strategy 2018 (e.g. Benton Square approx. 9,400 sq.m.; Mt Eliza approx. 18,200 sq.m.). In

short this is a ‘big shed’ in a Peninsula context.


General differences for Mornington site

14. Whilst the amendment is strictly speaking not a rezoning to C1Z, in terms of retail and office

uses in might as well be. This aspect is a very important element that sets this amendment

apart from the Tranche 1 approvals, as none of those, nor do most other known sites, relate

to land where a supermarket is prohibited.

It is important to acknowledge that the proposed amendment is one of a permanent nature.

Should Kaufland cease its operation, it is likely that other operators will seek to undertake a

similar activity, even if that operator does e.g. not increase choice or competition on pricing.

Experience tells us that bestowing retail rights on land on this scale, is a genie that cannot be

put back into its bottle.

15. Another aspect of difference is that the site as a planning unit is not a defined lot on a subdivision and forms part of a larger parcel of land, the future development of which has

not been outlined. This leads to a level of uncertainty and fragmented planning which is

undesirable. It also opens up the prospect that commercial uses permissible in the IND3Z

could be attracted in the future, resulting overall in a larger commercial centre than

currently presented. The existing Bata development may in time well be replaced with

commercial uses that ‘feed off’ the substantial amount of passing traffic that would be

created. Expressing no disrespect to the existing Bata operation on the site, it would not be

unreasonable to imagine that this multinational organisation would understandably see the

total holding as an asset suitable for future land development opportunities.

16. The SSO to be introduced into the MPPS specifies it is only to be used in extraordinary

circumstances. The use of the SSO for the Kaufland roll‐out has already been accepted by

the Committee for three sites. However, as stated above, none of those sites involved a

proposal that was otherwise prohibited. I suggest that for the sake of the integrity of

planning schemes (noting the Minister for Planning is also the custodian of the planning

system) it would be reasonable to consider the extent to which a proposal facilitated by the

SSO is at variance with the provisions of the relevant scheme. Where e.g. a proposal is

permissible and there is less in terms of a policy framework to consider, the ‘bar’ for

introducing the SSO based on there being extraordinary circumstances may be able to be

overcome. However, where (as I submit is the case here and hence another point of

difference) the proposal is prohibited and there is an extensive policy framework to support

that prohibition, the bar would need to be set higher. This would avoid making the SSO,

when reading the scheme as a whole, something of an ‘illogical add‐on’.

17. Formally the proposal is, based on the exhibited plans, for a supermarket and some smaller

tenancies, which may be shops or some of the office uses specified in the incorporated

document. However, the size/floor area and indication of goods to be sold appear to be

more extensive than the usual food, beverages and household products commonly

considered to be provided by supermarkets in Victoria.

Kaufland has been called a hypermarket (Mr Haratsis submission) and seen as a mix of a

supermarket and a discount department store (verbally accepted by Mr Haratsis under

cross‐examination). The planning scheme definitions only include the terms supermarket

and department store, which reflects current conditions in Victoria. Hence, the proposal can

be considered a relatively new concept as a mix of a supermarket and a department store


for the purpose of considering this amendment (the latter would of course in isolation

remain a prohibited use).

The ‘non‐supermarket component’ has been estimated to be in the order of 25‐30% (Mr

Haratsis) of the floor area. In reality again the operator will decide the extent of this

component and there seems to be little stopping the operator to extend this component to

say 50%. I submit that a 7,000 sq.m. shop building combined with the array of goods for sale

will not be ‘just a supermarket’ as it is currently presented, but a ‘higher level’ store that is in

the Mornington Peninsula context more suitable for a major activity centre than as a stand‐

alone facility.

Mornington Township context difference

18. The Local Policy Framework of the MPPS seeks to strengthen the distinct development

pattern of the Peninsula, of both townships and within townships.

The pattern within settlements is a traditional one with a commercial centre at its core that

is surrounded by residential areas, but also with low‐density residential areas at the edges.

The Mornington Township is a good example of that. It has a low‐density residential zone

virtually all around it, which creates low‐density and well‐ landscaped edges and entries,

important for Mornington’s sense‐of ‐place as a Peninsula Township rather than a

Melbourne suburb.

19. In this context the entry to Mornington from the north, transitioning from the important

inter‐urban break between Mt Eliza and Mornington, has been pursued by a Public Use

Zone/secondary college on the west side of the Nepean Highway and a ‘garden industrial

estate’ on the east side. The specific zone for this land with that name under the original

Mornington Planning Scheme was replaced by DPO2 as part of the translation into the new

format planning schemes.

The requirement of the 90‐metre building setback and substantial plot ratio and landscaping

requirements need to be seen in this context. They have been largely adhered to by new

development and are logically of real importance for the Bata site, being the start of the

entry into Mornington.

20. I submit that the proposal in terms of both land use and extent and design of development,

including its large pole sign and its limited landscaped setback, would create a ‘hard urban

edge’ to the township that detracts from its ‘Peninsula character’, and is contrary to the ‘soft

edge’ envisaged by the planning scheme. None of the known Kaufland sites have a context

like this.

Mornington Peninsula Planning Scheme differences

21. There are also a range of planning scheme provisions that sets the Mornington Peninsula

Scheme apart from other schemes.

I emphasise that I mainly refer to elements of the Local Planning Policy Framework of the

MPPS. That is: to provisions that are at present ‘the law of the land’. They have been added

to the planning scheme following Melbourne 2030 and its requirements, community

consultation, external professional advice and consultation with the Department for

Environment, Land, Water and Planning. This has taken years to achieve. Whilst the

amendments to introduce these provisions have been prepared and promoted by the Shire,


ultimately, they have been approved and are therefore owned by the Minister for Planning.

As approved amendments they also represent achieving net community benefit.

Mornington Peninsula Planning Statement

22. First up there is the Mornington Peninsula Localised Planning Statement (LPS) specified in

Clause 11.03‐5S.

None of the other known Kaufland sites are in an area affected by an LPS, which contains

policy directions to manage inter alia commercial development pressures placed on the

Peninsula.

The LPS effectively asks decisionmakers to view proposals through the prism of the

Peninsula alone, as part of a comprehensive consideration of impacts on that area which has

a role that is distinct from the growing metropolitan area.

The LPS thus includes inter alia the following strategy: The hierarchy of settlements on the Mornington Peninsula will be recognised and maintained, with

provisions to reinforce the distinction between major activity centres and other townships through

appropriate density, height and built form controls and provisions to avoid out of centre commercial

development. For the purposes of commercial centre planning the Mornington Peninsula will be

considered separate from metropolitan Melbourne.

In many ways the northern section of the Peninsula, including Mornington, logically receives

the brunt of the development pressures from the growing metropolitan area. The proposed

amendment can be seen as an example of that and its consideration therefore needs to give

appropriate attention to the strategies of the LPS.

Municipal Strategic Statement (MSS)

23. The extensive policy framework for activity centres and commercial development (Cl21,07‐

3) is another difference with other known Kaufland sites.

The Mornington Peninsula has a distinctive and traditional settlement pattern. The MSS

emphasises the need to strengthen this development pattern with its hierarchy of

settlements of relatively evenly distributed townships and villages with their own identity

and sense of place, separated by clear boundaries, set in the context of a wider Green

Wedge Zone (GWZ).

In particular the section of GWZ between Mt Eliza and Mornington is seen as an ‘inter‐urban

break’ important for a clear distinction between metropolitan Melbourne and the Peninsula.

No other known Kaufland site is positioned adjacent to, not just a GWZ, but a crucial inter‐

urban break, which could be detrimentally affected.

24. Overall the strategy of the MSS is to direct growth to the major settlements of the hierarchy

and protect smaller settlements from growth pressures.

25. First, this involves in Cl21,07‐3 a categorisation of a hierarchy of activity centres unique to the Peninsula, based on catchment, size and composition. This is then expressed on a map,

showing Mornington as one of three major activity centres on the Peninsula. The categories

and map are based on the Mornington Peninsula Activity Centres Strategy September 2005,


a reference document of the MPPS. It was prepared by Ratio Consultants (a team lead by Dr

Wolinski) and completed following community consultation.

The map shows a well‐organised and traditional development pattern of centres that serve

distinct communities with different geographies. The proposal is at odds with the

Peninsula’s distinctive and unique development pattern that is very different from areas

other known Kaufland sites are located in. It does not fit in with any of the identified levels

of the hierarchy. Its catchment is larger than that of a township, whereas its size would be

more along the lines of a small township centre.

The proposal is clearly not suitable from the overall hierarchy perspective. Notwithstanding,

the amendment should, given the proposal’s size and composition, have included an

adjustment to both the categories and the map. The absence of that is a shortcoming of the

amendment.

26. Secondly, the MSS states directions for commercial growth. In line with the PPF (based on

Melbourne 2030 and its ‘successors’) growth is directed to activity centres. This is done for

a range of good planning reasons, which can be summarised as comprising the best net

community benefit to be achieved.

The Activity Centres Strategy 2005 recommends to direct 75% of the forecasted retail

growth for the Mornington Peninsula Shire (West) Statistical Local Area to the MAC, with the

remainder to be distributed to the large township centres, mostly comprising the extension

of Benton Square, which has since been done.

The MSS also states that there is no need for new activity centre and that out‐of‐centre

retail development should be avoided.

The proposal is therefore contrary to a number of unequivocal policy statements that make

it crystal clear the subject site is unsuitable. I suspect that few if any Kaufland sites are

affected by policy statements as unambiguous as this.

27. Thirdly, the MSS stipulates that the growth of activity centres is to be managed on the basis

of structure plans. This has led to inter alia the inclusion of the MACSP into the planning

scheme, about which more later.

Local Policies

28. To complement the MSS the MPPS includes a number of local policies to further specify the

policy framework for inter alia Industrial Areas, Activity Centres and the MAC. I note that

both the Industrial Areas and Activity Centres policies require the submission of

development plans, as distinct from the DPO. These have not been submitted.

29. The Local Policy for Industrial Areas includes the following policy direction (Cl 22.01‐3): Proposals for out‐of‐centre commercial developments that undermine the activity

centres policy at Clause 22.02 will not be supported.

The proposal is a substantial commercial development in the context of the Mornington

Peninsula. Providing such shop in this out‐of‐centre location would delay and possibly


prevent the establishment of a major retail store in the MAC and thus undermine the above

policy, again a situation different from most known Kaufland sites.

Separately, the loss of industrial land is significant as vacant industrial land is scarce. I note

that the supply of industrial land in Mornington has been substantially affected by rezoning

to residential and by restricted retail uses (including the Homemaker Centre).The Industrial

Areas Strategy 2018 project was in part initiated in the context of all industrial areas on the

Peninsula ‘filling up’ and the Strategy acknowledges the urgency of taking action to extend

industrial land supply.

30. The Activity Centres policy includes the following policy directions (Cl 22.02‐3):

Encourage retail premises (excluding restricted retail premises) in a Business 1 Zone in

Major and Large Township Activity Centres that facilitate achieving the additional retail

floor area envisaged by 2021.

…

Oppose retail, restricted retail or office developments that would cause a change to the

classification of any activity centre within the hierarchy of activity centres as shown on

the map and in Table 1 to Clause 21.07‐3.

These statements again seek to unambiguously retain the existing identified hierarchy of

activity centres and direct the growth envisaged (in the Activity Centres Strategy 2005) to in

this instance the MAC.

31. The MAC policy (Cl 22.18) formalises in statutory planning terms the outcomes outlined in

the MACSP 2007, which is a reference document to the scheme.

It was prepared by Ratio (a team lead by Dr Wolinski) and with an extensive process of

community consultation and DELWP involvement (a DELWP representative was part of a

steering committee).

32. The Strategic Land Use Framework of that plan (P15, Fig.4.1 ‐see Attachment 1) sets out the

land use structure for the centre, both existing and future. The areas for additional retail are

shown (dark purple) and a notation (red star) denotes that the car park area adjacent to the

Mornington Village Centre is specifically earmarked for a future major retail store.

33. This is formally specified by the MAC policy and its Map 2 and Table 1 (attachments 2 and 3).

The policy aims to:

Ensure that the use and development of land is consistent with the Key Design

Elements shown on Map 2 forming part of this policy.

Ensure that the use and development of land is consistent with the Policies for

Precincts shown in Table 1 forming part of this policy.

34. The addition of a major retail store in this location is a crucial element to both the

composition and design of the centre. In terms of composition a second major store, in

addition to the Target in Mornington Central, is important to properly serve its district and

for the long‐term competitive strength of the centre in comparison to other centres, in

particular Frankston. Its location would, combined with the Mornington Village Centre

(including inter alia Safeway and Aldi), provide a suitable second ‘anchor’ and a balance with


Mornington Central (with inter alia Coles and Target), which is fundamental to the overall

attractiveness of the centre.

35. The Committee has been shown that the earmarked site with an estimated area of some

5,000 sq.m. is of adequate size to accommodate a large shop and is owned by Council. I

note that the land has sufficient fall to enable multi‐level development and that the

structure plan envisages a building height of up to 3 storeys. Moreover, the land is in a zone

(PUZ) in which commercial development is permissible and for which it is clear that a

rezoning to C1Z would be supported. The site should therefore have been included as a

potential site in the evidence of relevant experts. This should also have been acknowledged

in the Explanatory Statement.

36. The proposal is a threat to achieving the Activity Centres and MAC policies by not directing a

substantial retail development to the MAC and thus delaying and possibly preventing the

establishment of a major retail store in the MAC, jeopardising its ongoing success.

37. From my reading of the economic evidence I could not see that this matter has been

addressed. It is not enough to say whether or not the proposal has a limited impact on the

existing businesses of the MAC. Based on the above policy framework it must also be

established that there is no detrimental impact on the additional retail development

envisaged by the planning scheme, in particular the addition of a major retail store.

38. The proposal will require an investment of a magnitude that would delay and possibly

prevent the establishment of a major retail store in the MAC. Investments of this kind will

only occur occasionally on the Peninsula and have not taken place in Mornington for some

time. There has been substantial investment in large retail stores across the Peninsula over

the last 15 years, however In Mornington this has not occurred, adding only an Aldi within

an existing building. Investment appears to have been more directed to the establishment

of the Homemaker Centre.

39. In contrast investment in line with other elements of the structure plan have taken place, in

particular (and in addition to the original outlay for the purchase of all the land now owned

by Council) substantial residential development on vacant land on the northern edge, shops

with apartments above in Main Street and the Esplanade, substantial improvements to Main

Street itself including new pavements, widened footpaths, many additional pedestrian

crossings, the introduction of the 40K speed limit and improvements to the foreshore and its

links with the shops.

40. I submit that the additional large retail store envisaged in the planning scheme will only be

achieved for the MAC by the consistent application of planning policy over a long period of

time. The detrimental impact of the proposal in this respect is unique and again a significant

difference compared to other known sites.

41. Conversely, the location of a Kaufland store in the MAC would comply with the planning

scheme. The available site is sufficient for a large retail store. Like other operators, Kaufland

could adjust the size of their store to Peninsula conditions. These are matters of design and

engineering that can be overcome.


Conclusion

42. In this submission I have attempted to show the Committee that having regard to all the

relevant sections of the MPPS , but in particular the LPPF, the proposed site for the Kaufland

store in Mornington is contrary to its provisions and a threat to both the established

development pattern of the Peninsula and to the MAC, in a way that shows a range of

differences with other known Kaufland sites.

43. I submit at this point that through the LPPF (the MSS and the Local Policies) the Minister for

Planning outlines in more detail wat is envisaged for a particular area. It does therefore not

suffice to state what the PPF says about out‐of‐centre development, without also

acknowledging that the Minister expresses a more specific and this instance narrower view

on what can be considered. I refer here to Mr Biacsi’s evidence in support of the

amendment. Whilst the relevant PPF Cl 17.02‐2S contemplates potential consideration of

out‐of‐centre development from a wider metropolitan perspective, in the LPPF the Minister

makes it clear that such developments are not envisaged for the Mornington Peninsula.

44. I also submit that the existing more detailed LPPF provisions express what the Minister

considers to be achieving net community benefit. It does therefore not suffice to do a net

community benefit analysis of the proposal in isolation, as per the in my view insufficiently

comprehensive assessment by Mr Biacsi. It must be established that the net community

benefit of the proposal exceeds the net community benefit of the policy outcomes

envisaged by the Minister through the MPPS.

45. I note that my conclusion that the proposal is a threat to the MAC varies from Mr Biacsi’s

evidence. However, I also note that his evidence does not mention the provisions of the

MACSP, nor the related Local Policy for the MAC (Cl 22.18 of the MPPS).

46. I hope to have shown the Committee that the proposal is not just prohibited by the zone.

The Mornington Peninsula planning context and the MPPS policy framework are

diametrically opposed to the proposal and substantially different compared to the other

‘more metropolitan’ Kaufland sites. On that basis the Committee is respectfully requested

to recommend that the proposed Mornington site should not be included in the roll‐out of

Kaufland stores.

The Committee may wish to recommend that instead a site within the MAC be investigated

as that would comply with the MPPS.

I thank the Committee for the opportunity to have my say.

Frank Mangan

Grad.Dip. Urban and Regional Planning RMIT

MA Urban Geography and Planning VU Amsterdam


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Document 156 - Submission to Kaufland Stores in Victoria ... · Submission to Kaufland Stores in Victoria Advisory Committee – Frank Mangan – 21 March 2019 Page 1 Submission to