Victorian Civil and Administrative Tribunal|2007-07-23|Before: Ms J

The applicant relied upon findings that I made in the case of Java Sands Pty Ltd v Frankston CC[3] in which I found that a childcare centre was generally in accordance with the development plan under the Development Plan Overlay in that case. In making that decision, I said:

[28] With changing demographic patterns and increased rates of participation by women in the work force, the social need for childcare has grown. This need is being met through a proliferation of commercial child care centres. Many such centres choose to locate in residential areas because of the nature of the use and the fact that they are serving local community needs. In my view, child care centres are part and parcel of residential areas. They meet a community need that is directly related to residential use and development in much the same way as schools and kindergartens. As such, I consider that a child care centre being located in a residential area, even a low density residential area, can be said to be generally in accordance with the development plan provided there are no specific locations otherwise shown for the location of such facilities. Whether the particular location proposed is suitable having regard to its merits and other policy considerations that may exist, is a question to be decided when the application for planning permit is decided.

The applicant says that the development plan in the present case is comparable and I should reach a similar conclusion.
By contrast, the council and others, who consider that the childcare centre is not generally in accordance with the development plan, point to the detailed nature of Schedule 2 to the Development Plan Overlay and seek to distinguish the case of Java Sands.
It is generally accepted that the following principles are applicable in deciding whether a use or development is generally in accordance with a permit or plan:

(a) General accordance is a question of fact to be judged on the facts and circumstances of the case, and

(b) The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".[4]

In Java Sands, with reference to the development plan in that case, I said:

[25] The Langwarrin Outline Development Plan includes conventional residential areas and low density residential areas. Sites for schools, pre-schools and infant welfare centres (existing and proposed) are shown in the residential areas but not in the low density residential areas. There is no reference at all to child care centres.

[26] I do not consider that the identification of sites for schools, pre-schools and infant welfare centres is relevant to a consideration of where commercial child care centres may be established. I consider that commercial child care centres fall into a different category of use and the approved development plan simply does not descend to this level of detail.

A similar situation prevails with respect to the Point Cook Gardens Development Plan. The whole of the development plan area is shown for conventional residential subdivision. Sites for a primary school and community facilities are shown but these are in the category of public or community facilities. There are no sites shown for commercial or private non-residential uses on the development plan. To that extent, the Point Cook Gardens Development Plan is similar to the Langwarrin Outline Development Plan considered in the Java Sands case. However, there are differences with respect to the schedules under the respective Development Plan Overlays.
Schedule 1 to the Development Plan Overlay in the Frankston Planning Scheme (Carrum Downs, Langwarren and Baxter Outline Development Plan) is a simple document and the only requirements which a development plan must show are:
- The location and extent of areas set aside for various land uses, including housing, shops and, where relevant industry.
- The proposed road network and traffic control measures.
- A network of pedestrian and bicycle paths.
- The distribution of schools and other community facilities.
- A proposed open space network including land set aside for both active and passive activities.
- For land at the eastern boundary of the Carrum Downs urban area, the treatment of the interface between rural and residential areas generally in accordance with diagram 1 to this schedule.
By contrast, Schedule 2 to the Development Plan Overlay (Future Urban Development Areas) in Wyndham Planning Scheme is a far more sophisticated document. There is more than a page of requirements that a development plan must show. In addition to details about the proposed road layout pattern, the proposed subdivision layout, major infrastructure easements, significant sites and various buffers, the development plan must also show:
- A clear indication of the location of all proposed land uses within the plan area;
- Where relevant, the provision for local shops and community facilities and any non-residential land use.
An additional feature in the Wyndham Planning Scheme is the Non-residential Uses in Residential Zones Policy at clause 22.13. This policy applies to all land zoned residential where a permit is required to establish a non-residential use. Clause 22.13 states:

The Municipal Strategic Statement emphasises the protection of the character and amenity of existing and future residential areas. Residential areas require complementary non residential uses for the convenience of local residents. These uses include display homes, childcare centres, medical centres, veterinary clinics, places of assembly and worship, convenience shop and cafes. However care must be taken in selecting and siting non residential uses to avoid loss of privacy, amenity, and convenience to residents living nearby. It is considered appropriate to provide guidelines to adequately protect residential areas, guide uses which have the potential to change the function and character of residential areas and avoid development of defacto commercial strips inconsistent with Council's commercial Activity Centres Strategy.

The purpose of the local planning policy in clause 22.13 is to provide guidelines for considering permit applications for non-residential uses in residential zones. Clause 22.13-4 contains specific guidelines for childcare centres. Clause 22.13 was included in the Wyndham Planning Scheme by amendment C60 on 5 February 2004. This postdates the inclusion of Schedule 2 to the Development Plan Overlay in the planning scheme and the Point Cook Gardens Development Plan.
It is axiomatic that a commercial childcare centre is a non-residential use. It does not need reference to clause 22.13 to establish this. Clause 22.13 is relevant to the interpretation of the Point Cook Gardens Development Plan in terms of acknowledging that: "Residential areas require complementary non-residential uses for the convenience of local residents". This policy basis, which is found within clause 22.13, reflects the following purpose of the Residential 1 Zone:[5]

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

Reading the policy and the zone purpose together, I find that within the Residential 1 Zone under the Wyndham Planning Scheme, a childcare centre is seen to be an appropriate non-residential use, providing care is taken "to avoid loss of privacy, amenity, and convenience to residents living nearby".[6] This will be achieved by applying the policy decision guidelines set out in clause 22.13 when considering the merits of the particular planning permit application.
At present, I am only required to determine whether a permit application for a childcare centre can be said to be "generally in accordance" with the approved development plan. The development plan is for a residential area. Therefore, based on the purpose of the Residential 1 Zone and the policy basis for the Non-residential Uses in Residential Zones Policy in clause 22.13, I conclude that a childcare centre (and the other types of uses mentioned in clause 22.13-1) is the type of non-residential use that could reasonably be expected to be located in a residential area, and hence would be generally in accordance with a development plan which shows residential areas, unless there is some specific aspect of the development plan or schedule to the overlay that would lead to a different conclusion.

This conclusion represents a general presumption. However, each development plan must always be assessed individually to determine whether the general presumption is displaced by the facts of the particular case before finally concluding that a specific permit application is generally in accordance with the development plan. Thus, if a development plan specifically identified certain sites for a childcare centre, an application for a childcare centre in another location could not be said to be generally in accordance with the development plan. In the present case, the development plan is not so specific. There are sites identified for a school and community facilities, but not for any other non-residential uses.
Schedule 2 to the Development Plan Overlay requires that a development plan must show:

Where relevant, the provision for local shops and community facilities and any non-residential land use.

Does this requirement mean that if there is no provision made for any non-residential land use, it is intended that there be no non-residential land uses within the development plan area and any application for such use could not be said to be generally in accordance with the development plan? To decide this, it must be determined what "any non-residential land use" means in the context of Schedule 2 because it cannot be assumed that it necessarily means the same thing as in clause 22.13.

In considering this issue, it is relevant to have regard to the purpose of development plans under the Development Plan Overlay. The purpose of the Development Plan Overlay includes:[7]

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

The VPP Practice Note, Applying the Incorporated Plan and Development Plan Overlay, in amplifying the operation of the overlay, states:

Unlike most overlays, the IPO and DPO enable a plan to make provision for use as well as development. In drawing up a plan, it will almost always be necessary to think about relationships between future uses as well as future development. A plan that controls physical development without considering use may result in incompatible uses becoming established on adjacent sites.

The practice note also deals with "plan form". It notes that whilst there are no statutory requirements that govern the form of a plan, it is advised that the plan contains certain identified elements. They include: a map; an ordinance; objectives; criteria or performance measures; use provisions; buildings and works provisions; and possibly staging provisions. With respect to use provisions, the practice note states:
- Uses that will be generally in accordance with the plan need to be identified. It may be that all uses not prohibited by the zone are generally in accordance, in which case the plan use provision can simply record this. However, if a smaller group of uses are supported by the plan, a more sophisticated list may be required. This may be in the form of a table that is similar to a zone table of uses.
- Wherever possible, the table should be drafted with reference to land use terms and nesting diagrams in Clauses 74 and 75 of the planning scheme.
- Where the future use or development supported by the plan is entirely certain, the table can be drafted exclusively to prevent the consideration of noncomplying permits unless the schedule provides otherwise. Where future intentions are less clear, inclusive drafting can be used to ensure that innominate section 2 uses are still generally in accordance. Where this approach is taken, the table can also specify those uses that are not considered to be generally in conformity with the plan.
- If the plan does not intend to affect the consideration of permits for use, the plan should specify that all uses in section 2 of the zone are generally in accordance with the plan.
I have noted earlier that the Point Cook Gardens Development Plan is a very simple plan. It consists of a map only and does not contain an ordinance or display the level of sophistication or detail suggested in the VPP Practice Note, Applying the Incorporated Plan and Development Plan Overlays. The map shows in detail the proposed road layout pattern and the proposed subdivision layout. It shows the provision of community facilities. It does not make any provision for local shops or non-residential land use. However, Schedule 2 only requires their provision "where relevant". What does this mean?
Schedule 2 to the Development Plan Overlay applies to "Future Urban Development Areas". DPO2 applies in various, widespread locations within the municipality of Wyndham. Most of the areas to which it applies are residential areas included in the Residential 1 Zone. However, it also applies to other land. For example, in the general Point Cook area, DPO2 applies to a Mixed Use Zone at the intersection of Tom Roberts Parade and Boardwalk Boulevard; and to two Business 1 Zones, one on Point Cook Road north of Jamieson Way and one on Sanctuary Lakes North Boulevard south of Greg Norman Drive. In my view, it is land in these type of zones that is being referred to when Schedule 2 requires a development plan to show, where relevant, "any non-residential land use". I do not consider that this phrase, when it is used in the context of Schedule 2 to the Development Plan Overlay, is referring to the type of non-residential land uses on individual sites in a residential zone that clause 22.13 and the Non-residential Uses in Residential Zones Policy is referring to.
In growth areas such as Wyndham, it is quite usual in the planning of future urban areas to identify sites for town centres, neighbourhood centres or other business or industrial areas. It is in the context of a schedule to an overlay having a broad application to a variety of extensive future urban areas that a development plan is required "where relevant" to show non-residential land use. I do not consider that schedule 2 requires planning at a micro level in terms of identifying specific land uses for specific lots. Rather, it is intended that development plans show those areas where non-residential uses generally will be located, such as town centres or neighbourhood centres or the like.
Whilst not specifically stated on the Point Cook Gardens Development Plan, it is a necessary inference that the plan area is intended to be a residential area. There is no sophisticated list in the development plan specifying a smaller group of uses or excluding any specific uses that might generally be permitted in a residential area under the zone provisions. In my view, it is therefore a situation where most, uses not prohibited by the zone may be considered to be generally in accordance with the development plan. They would certainly include those non-residential uses identified in clause 22.13 as being "complementary" in residential areas "for the convenience of local residents". This does not necessarily mean all such uses should be approved. But it does mean they would not be precluded from being assessed on their merits.
It is worthwhile to refer again to the general principles identified earlier, which are applicable in deciding whether a use or development is generally in accordance with a development plans. Applying them to the present case, I believe that considerable flexibility is given by the phrase "generally in accordance with" because there is little detail or precision regarding proposed land uses in the Point Cook Gardens Development Plan. Far more detail and precision about proposed land uses would need to be included in the development plan before I could conclude that the proposed childcare centre was not generally in accordance with the Point Cook Gardens Development Plan.
I therefore find, as a question of fact based on the facts and circumstances of this particular case and this particular development plan, that planning permit application WYP/0400/06 for a childcare centre on the subject land is generally in accordance with the approved Point Cook Gardens Development Plan.

The applicant seeks an order that the persons who have lodged statements of grounds in application P1006/2007 have no standing pursuant to clause 43.04-2 of the planning scheme and those parties be struck out from the proceeding.
A further purpose of the Development Plan Overlay is:

To exempt an application from notice and review if it is generally in accordance with a development plan.

As noted earlier, this application has been the subject of a vigorous community campaign both for and against it. Notwithstanding the public interest it has generated, I consider the provisions of the Development Plan Overlay are quite explicit in terms that there are no third party review rights.[8]
I am confident that the council is fully aware of the views of residents who both oppose and support the proposal, and that as part of its presentation to the Tribunal hearing the merits of this application for review those views will be identified by the council. As I said in the case of West Valentine Pty Ltd v Stonnington CC[9]:

[21] The objectors' concerns about equity are not determinative of the issue of whether they should be made parties. They are not entitled to be parties pursuant to the Planning & Environment Act and the provisions of the Heritage Overlay, and those provisions cannot be altered by the Tribunal. Such an explicit scheme should not be circumvented by the Tribunal through the exercise of its powers under section 60 of the Victorian Civil and Administrative Tribunal Act unless there are very compelling reasons to do so. Such circumstances do not exist in this case. In reality however, their objections were taken into consideration by the responsible authority when it decided to refuse to grant the permit and their concerns are reflected in the grounds of refusal. The objectors may reasonably anticipate that the responsible authority will address their concerns in the submission it makes to the Tribunal at the hearing, so far as the concerns are relevant to the ambit of discretion being exercised in the case.

The West Valentine case was concerned with identical exemption provisions in the Heritage Overlay. What was said there is equally applicable to the Development Plan Overlay. I am not satisfied that there is any compelling reason to join any of the persons who have lodged statements of grounds as parties pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998. This applies also to Andew Grech, who is an adjoining landowner and who has made a specific application to be joined as a party. However, whilst I will not make an order joining any objectors as parties, it is open to the Tribunal to take the written views expressed in their statements of grounds into consideration pursuant to its general power under section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 to inform itself on any matter as it sees fit.

A consequence of my finding that the permit application is generally in accordance with the approved development plan is that there is now no need for the development plan to be amended before the permit application can be considered on its merits. Therefore, although Application P1007/2007 will be listed for hearing at the same time as application P1006/2007, it may not need to be dealt with.
I was advised at the hearing that council has made application to the Minister for Planning to amend the planning scheme to remove the Development Plan Overlay from Point Cook Gardens. This is not a matter that is relevant to my decision. I must interpret and apply the planning controls as they exist at the time of my decision. I note that the VPP Practice Note, Applying the Incorporated Plan and Development Plan Overlay, advocates the regular review of all overlays and plans, especially in circumstances where the proposal anticipated by the plan is substantially complete.
I was also advised that council resolved to refuse the request to amend the Point Cook Gardens Development Plan as contemplated by application P1007/2007 "until redundant development plan overlays over developed areas of the municipality are removed." I make no comment about the substantive merits of the council resolution, except to note that if a Development Plan Overlay is removed, the development plan itself will become redundant and there will be no power or need to consider its amendment.
The Tribunal must determine any applications properly and lawfully made under the provisions of the Planning and Environment Act 1987. Whilst the need to amend the Point Cook Gardens Development Plan, which is the subject of application P1007/2007, may now have been removed, if the applicant still intends to pursue this application for review at the hearing, the Tribunal will need to make a decision about it.

[1] Planning permit application YWP/0400/069

[2] There are no third party rights of review in respect of the section 149 application for review (P1007/2007). If the application, which is the subject of this decision, is successful, the section 79 application (P1006/2007) is exempt from third party rights.

[4] Canet v Brimbank CC [2003] VCAT 13 at [44]

[8] Although clause 43.04-2 refers only to the review rights of section 82(1) of the Act, for the reasons set out in West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224, this exemption applies to the rights of objectors to participate in all applications for review concerning a decision to grant a permit, refuse a permit, failure to grant a permit and conditions in a permit.

Amber Vision PL v Wyndham CC [2007] VCAT 1297 (23 July 2007)

Amber Vision PL v Wyndham CC [2007] VCAT 1297

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Parties

Cases Cited (1)

Amber Vision PL v Wyndham CC [2007] VCAT 1297 (23 July 2007)