Mornington Peninsula Shire has had a back-handed win at VCAT in the matter of Tully’s Corner Produce Store in the Moorooduc Highway, Mt Eliza – back-handed in the sense that shire officers last October recommended councillors approve Tully’s wish to open a bottle shop at the Green Wedge site and councillors knocked them back.

Then VCAT, through its colourful Senior Member Russell Byard, delivered a sharp coup de grace, citing limits and prohibitions in the shire’s own planning scheme as part of his reasoning.

A bottle shop, he ruled, “is prohibited” in the GWZ, leaving Bandicoot wondering why shire officers did not also know this.

Mr Byard went further. He indicated very forthrightly that the applicant, Estina Pty Ltd (Tully’s), had extended its commercial activities far beyond its use rights, even though the permitted uses were set out in a legal agreement with the shire in 2007.

Bandicoot infers from this that VCAT, via Mr Byard’s ruling, has sent a clear signal to shire enforcement officers that Tully’s activities need to be examined and brought into line with its permit conditions.

Mr Byard said: “My inspection [of the property] confirmed … that the retailing on the site now amounts to something like a supermarket, indeed it really is a supermarket, and quite a substantial one … the responsible authority [submitted] that 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.”

The shire, having adroitly reversed its position after the councillor knockback and when former councillor Leigh Eustace became a respondent/objector at VCAT, also told VCAT that “By no stretch of the imagination could all, or even the majority of the existing products offered for retail sale at Tully’s Corner Produce Store fall within the definition of ‘Primary produce sales’.”

Mr Byard expanded on this, citing goods sold at the store.

There is a wide range of bottled and canned lines of food and drink that clearly do not originate from the locality, but come from elsewhere in Victoria, Australia and around the world,” he wrote. “Amongst the goods from Italy there is bottled mineral water. Olive Oil is not produced in this locality.

Other goods come from Scandinavia, Turkey, Poland and other places. 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.”

He concluded: “…‘Supermarket’ is a recognised land use in [clause 74 of the planning scheme]. It is a subcategory of the land use ‘Shop’. As such it is a shop which is a prohibited use.”

Bandicoot expects that, based on this 19 July 2016 ruling, the shire has taken a keen interest in ensuring that Tully’s has, or will soon, cut its offerings to allowable primary produce – defined in the planning scheme as “primary produce, grown on the land or adjacent land. It may include processed goods made substantially from the primary produce.”

Tully’s argued that packaged wine is processed grapes, provided the grapes are grown “on the land or adjacent land”.

Mr Byard’s ruling was emphatic. “No grapes are produced on the land,” he wrote. “… no grapes are grown on adjoining or neighbouring or nearby land. The nearest vineyards sought to be relied upon are three kilometres away.”

After considering definitions of “adjacent” he ruled that land three kilometres away was “not adjacent within the meaning of the definition or in this context”.

He added: “It is not necessary, for the purpose of deciding this case, to determine where the boundary of adjacency would lie. If it was necessary I would be considering something less than one kilometre” – a ruling no doubt to be raised at future tribunal hearings. Lawyers frequently brandish dictionary definitions in VCAT cases.

Mr Byard was familiar with the bottle shop – “for the sale of packaged liquor for consumption off the land” – argument. He had heard a similar case in 2011, when Noels Gallery in Red Hill sought a permit to sell wine from its premises on Mornington Flinders Rd. The application was also knocked back because “bottle shop” was then (and clearly still is) a prohibited use in GWZ.

In that case Mr Byard also spanked past shire approvals, casting doubt on some of the six permits the shire had issued to Noels from 1981 to 1995 for uses including “tea rooms” and “restaurant”. Where did the tea rooms mentioned in one permit spring from, he asked, and why would a “lunch room” seating 30, all presumably staff, be required?

The whole process in relation to this purported [bottle shop] permit seems to be rather muddled,” he grumbles in his decision, going on to describe as “shoddy and unclear” the documents applying to Noels.

As to the restaurant, Mr Byard again asks: where did the restaurant spring from? He found no specific permission for either it or the tea rooms in any earlier permits issued.

The 2011 Noels decision appears to have come back to haunt the shire. As then, shire officers initially indicated clearly to the applicant that what was sought was legal. A 2007 letter to Noels concluded: “I also wish to advise that [the liquor licence] proposal does no contravene the Mornington Peninsula Planning Scheme.”

Mr Byard observed tartly: “… the responsible authority now repents of that sentence … (the shire) cannot … legally authorise the sale of packaged liquor … (councils) are creatures of statute and have only the powers granted to them by statute.

They cannot make up statutory processes or grant permits or privileges, or regulate activities except by and in accordance with statutory powers.”

Spank, spank!

Bandicoot heartily agrees and adds that, since the shire is about 70% GWZ, its provisions should be exceedingly well known to planning officers. In the Tully’s case the planning department appeared to have no memory of the Noels case, despite the shellacking Mr Byard gave it on a number of fronts – the sort of criticism that should be etched into a bureaucracy’s culture forever.