Applicant v Respondent

1. The Applicant in these proceedings, Intrapac Ellarook Pty Ltd ('Intrapac'), is the registered proprietor of land located at 267-279 Woods Road, Truganina ('Intrapac's land').
2. On 28 May 2024, the Victorian Civil and Administrative Tribunal ('the Tribunal') determined that Intrapac's proposal to develop part of its land as a multi-lot residential subdivision would not be 'generally in accordance' with a planning instrument known as a 'precinct structure plan' ('PSP') as a preliminary question posed for it by the parties because:[1]

(a) the land proposed to be subdivided was designated for use as a 'potential government primary school'; and

(b) properly construed, the PSP did not countenance the possibility of the land being used for an alternative purpose.

1. The effect of the Tribunal's decision, if correct, is that Intrapac would be prevented from developing the land in the manner proposed unless the relevant PSP and planning scheme were to be amended.
2. Intrapac seeks leave to appeal the Tribunal's determination on the preliminary question pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). Section 148(1) of the VCAT Act provides that a party to a proceeding before the Tribunal may appeal, with leave, to the Trial Division of this Court, on a question of law arising from an order of the Tribunal. Section 148(2A) provides that leave may be granted under s 148 only if the Court is satisfied the appeal has a real prospect of success.[2]
3. The correctness of the Tribunal's determination turns on the proper construction of the PSP and the planning scheme, and in this case involves a question of law, or at least of mixed fact and law.
4. For the reasons which follow, leave is granted and the appeal is allowed.

1. On 13 November 2014 the 'Truganina Precinct Structure Plan' ('Truganina PSP' or 'the PSP') was incorporated into the Wyndham Planning Scheme ('the planning scheme') by Amendment C175. The PSP was subsequently amended by Amendment VC213 to the planning scheme on 14 July 2022. As an incorporated document, the PSP forms part of the planning scheme approved under the Planning and Environment Act 1987 (Vic) ('PE Act').
2. The Truganina PSP covers 1,089 hectares. The precinct is anticipated to include a mix of residential and employment uses, with the increase in population to be serviced by fixed rail public transport, commercial and community facilities, and open space.
3. The Truganina PSP is given effect by the provisions of the Urban Growth Zone ('UGZ'), and specifically clauses 37.07-9 et seq, and Schedule 10 to that clause entitled 'Truganina Structure Plan' ('Schedule 10').
4. The Truganina PSP includes a plan which shows the future urban structure proposed for the Precinct ('Plan 2'). Plan 2 is included in clause 1.0 of Schedule 10 to clause 37.07 of the planning scheme. Clause 1 states that Plan 2 'shows the future urban structure' of the Truganina PSP.
5. Clause 37.07-10 relevantly provides that:

A permit is required to subdivide land. Any requirement in the schedule to this zone or the precinct structure plan must be met.

• Be generally in accordance with the precinct structure plan applying to the land.
• Include any conditions or requirements specified in the schedule to this zone or the precinct structure plan.

1. It is common ground that Plan 2 is an important part of the PSP, and of the architecture of provisions intended to guide future development of the precinct.
2. Plan 2 is extracted below. It is not a detailed design drawing. Rather it depicts the location of the features which make up the 'future urban structure' of the precinct - the location of roads, parks, commercial areas, etc. Plan 2 is not, and is not intended to be, a blueprint or technical drawing. Nor is it purely a conceptual sketch, as it contains a level of detail which evidences that in the planning for the area important decisions have been made about the general layout of roads and the locations of features.
3. Importantly, Plan 2 is not the Truganina PSP, but rather part of the Truganina PSP. The Truganina PSP comprises 108 pages of text and diagrams covering a wide variety of matters relevant to the future urban development of the precinct. Plan 2 is a graphical representation of the synthesis of key aspects of land use, transport networks, open space, community and commercial infrastructure which is envisaged as the future urban framework of the precinct.

CAPTION: Plan 2 showing the location of the Intrapac land. In the northeast corner of the Intrapac land is the land designated as 'potential government primary school' coloured orange. To the south of the Intrapac land is the land designated 'potential non-government school' but which was acquired and developed by the State as a government school.

1. The Intrapac land forms part of the Truganina PSP area (as shown above). In total the Intrapac land is approximately 43 hectares. The Truganina PSP depicts the Intrapac land as accommodating predominantly future residential development, but also accommodating areas for drainage, open space, waterways, and local parks. Plan 2 shows the northeastern corner of the Intrapac land designated as a 'potential government primary school'.
2. Intrapac's land comprised two lots: Lot A and Lot B as shown on Plan of Subdivision PS808263N, and as depicted below.

1. The plan of subdivision created Lot A in a location which coincided with the designation within Plan 2 of the PSP of that part of the Intrapac land as 'potential government primary school'.
2. Following the creation of Lots A and B, the land in Lot B was further subdivided into conventional residential lots, and developed with roads and public open spaces in accordance with the Truganina PSP.
3. On 27 October 2016, the Wyndham City Council ('Council') issued planning permit WYP8843/15 ('Permit') allowing a multi-lot staged subdivision of 267 Woods Road. The Permit required that plans be prepared and endorsed by the Council before development commenced in accordance with the Permit. On 1 July 2022, the Council endorsed the 'Ellarook Estate Development Plan' ('Endorsed Plan') under the Permit, and as a consequence the Endorsed Plan formed part of the Permit, such that any change to the plan would require an amendment to the Permit under s 72 of the PE Act.
4. Below is an extract of the Endorsed Plan. The area corresponding to Lot A on Plan of Subdivision PS808263N is labelled 'Proposed Primary School' coincided with that part of Plan 2 in the Truganina PSP which designates the same land as 'potential government primary school'.

1. At the time of the hearing before the Tribunal, the Intrapac land had been largely developed in accordance with the Permit, as depicted in the aerial photograph tendered to, and extracted in, the Tribunal's reasons.

1. On 21 December 2022, the Victorian Department of Education and Training ('Department') wrote to Intrapac advising that the part of Intrapac's land designated in the Truganina PSP as a 'potential government primary school' was no longer required. This decision was communicated to the Council. It was common ground that the Department had acquired other land in the precinct for use as a school. In fact, the Department had acquired the land further south which the PSP had designated as a 'potential non-government school'. The Department made clear that it no longer needed the Intrapac land (Lot A) for educational purposes.
2. On 22 May 2023, Intrapac applied to amend the Permit ('proposed amendment') pursuant to s 72 of the PE Act. The substance of the proposed amendment was to remove the designation of Lot A as a 'Proposed Primary School' from the Endorsed Plan and to obtain approval to develop the land for further residential lots.

1. On 14 December 2023, the Council refused the proposed amendment on the following grounds:
   1. The amendment is not generally in accordance with the Truganina Precinct Structure Plan as it proposes a residential subdivision of a government school site.
   2. The amendment cannot be considered because unlike for a non-government school, the Truganina Precinct Structure Plan does not enable the Responsible Authority to allow the land to be used for a different land use.
   3. The amendment does not constitute orderly planning as it prematurely provides for a site suitable for an education use to be developed for non-education purposes.

4. The amendment does not provide a net community benefit.

1. The amendment does not produce an acceptable subdivision layout and does not meet the requirements of the Truganina Precinct Structure Plan that relate to waterway corridor interfaces.

1. In summary, the grounds of refusal raise two broad issues:

(a) First, whether the Council had power to grant a permit which would, in effect, permit the use of the Lot A land for a purpose other than a 'government primary school'.

(b) Second, whether, even if the Council had power to grant a permit, the planning merits of the proposed amendment justified approval.

1. On 15 December 2023, Intrapac made an application to the Tribunal for review of the Council's decision to refuse the proposed amendment.
2. The Tribunal listed the matter for a preliminary hearing to consider a single question, namely:

Is the residential subdivision of the land shown as potential government primary school on Plan 2 of the Truganina Precinct Structure Plan proposed by Planning Permit Application WYP8843/15.35 'generally in accordance' with the Truganina Precinct Structure Plan pursuant to the provisions of Clause 37.07 and Clause 2.4 of Schedule 10 to the Urban Growth Zone in the Wyndham Planning Scheme?[3]

1. The Tribunal found that the proposed residential subdivision of Lot A was not generally in accordance with the Truganina PSP and for that reason no planning permit could be granted.[4]
2. The Tribunal correctly:

(a) identified that the land is designated as a 'potential government primary school' in Plan 2 of the Truganina PSP;[5]

(b) approached the task of construction on the basis that the meaning to be attributed to the word 'potential' in the phrase 'potential government primary school' was central;[6]

(c) concluded that the word 'potential' is to be given its natural and ordinary meaning; and[7]

(d) accepted that 'potential' was used as an adjective, and that the most appropriate dictionary definition of the word in the context was 'possible as opposed to actual'.[8]

1. The Tribunal accepted that the Department's letter was to the effect that there was no longer any potential or possibility that the land would be developed for a government school.[9]
2. Notwithstanding the absence of express language excluding consideration of alternative uses, the Tribunal interpreted Plan 2, and the description of Lot A as 'potential government primary school', to mean that it excluded consideration of alternative uses.
3. The Tribunal found:

[T]hat the qualifier 'potential' identifies that at the time of the preparation of the Truganina PSP, the possible development and use of the school sites, be they designated for a government or non‑government school, was not perfected by the relevant provider through a formal acquisition agreement.

...

As such, the reference to 'potential' is not that Lot A could potentially be developed and used for a government primary school or it might be developed and used for another purpose. Rather, in this context, the reference to 'potential' indicates an intention for Lot A to be developed and used for that purpose, provided that this is approved by others.

When read in this way, cognisant of the type of use contemplated (i.e. a government school), I regard there to be less flexibility inherent in the use of the term 'potential' than might be the case for another type of use that is within the control of the developer and the Council to approve.[10]

I find that the Truganina PSP intends for those sites to be developed and used for schools, it is just that until there is a formal acquisition of each site, this remains a 'potential'.[11]

1. Having reached that conclusion in relation to the meaning of the word 'potential', the Tribunal then embarked upon answering the question: Is the [proposal] generally in accordance with the Truganina PSP?
2. The Tribunal's conclusions as to the proper construction of Plan 2 foreclosed on the possibility of finding that the proposed residential subdivision could be generally in accordance with the PSP.
3. The Tribunal drew support for its interpretation from two other parts of the PSP:

(a) Requirement R33 ('R33') - which made express provision for the consideration of alternative uses on land which the PSP had designated for 'potential non-government schools'; and

(b) Guideline G26 ('G26') - which contemplated the possibility of changes to the layout of schools as shown in Plan 2.

1. As to R33, the Tribunal drew a comparison between the treatment of non-government schools with government schools in the text of the PSP. In Plan 2 both categories of schools are described in the legend by the same adjective: 'potential'. In relation to 'potential non-government schools' the PSP includes R33 which provides that:

Where the Responsible Authority is satisfied that land shown as a non-government school site is unlikely to be used for a non-government school, that land may be used for an alternative purpose which is generally consistent with the surrounding land uses and the provisions of the applied zone.

1. No equivalent passage is to be found in the PSP in relation to 'potential' government schools. The Tribunal reasoned that the absence of such a passage was significant, reinforcing its principal conclusion that despite the inclusion of the word 'potential' in the adjectival phrase 'potential government primary school' there was not a sufficient degree of flexibility within the PSP to entertain any alternative use. The Tribunal concluded as follows:

I disagree with the applicant that the silence in the Truganina PSP in relation to the alternative use of potential government school sites enables the site to be used for another purpose and still be 'generally in accordance with' the Truganina PSP. Rather, I find that in light of the inclusion of requirement R33 enabling the alternative use of potential non‑government school sites, the silence with respect to potential government school sites is made even louder. This silence indicates to me that there is no flexibility for the responsible authority to approve the development and use of a potential government school site for an alternative purpose and that such a change would not be generally in accordance with the Truganina PSP.[12]

The indicative layout of community facilities, schools and open space as illustrated in Plan 2 may be altered where approved by the responsible authority.

1. The Tribunal recorded the Council's submission that:

The Council refers to guideline G26 and submits that the reference to the indicative layout of schools as illustrated in Plan 2 being able to be changed with the approval of the responsible authority does not extend to removing the school entirely: for there to be an indicative layout that can be changed, there needs to be a school.[13]

1. The Tribunal recorded Intrapac's submission that:

In the context of guideline G26, the applicant submits that the reference to the 'indicative layout' of schools as illustrated in Plan 2 being able to be altered is suggestive that the layout on Plan 2 is not prescribed and that discretion is available. However, the applicant accepts that the discretion to alter the indicative layout might not extend so far as to remove the school entirely.[14]

1. The Tribunal ultimately agreed with the Council and concluded that:

Guideline G26 enables the 'indicative layout' of a school shown in Plan 2 to be altered where approved by the responsible authority. I agree with the Council that guideline G26 would not extend to the removal of a school site, but rather, would deal with its general location in Plan 2; for instance, whether the site be made wider or longer or extend further along a road interface. Through oral submissions at the hearing, I understood the applicant to broadly agree with this interpretation of guideline G26.[15]

1. The detailed analysis of the provisions of the PSP undertaken by the Tribunal are not recited here in full, but form a sound and transparent basis for an examination of the issues raised in this appeal.

1. Intrapac seeks leave to appeal[16] on five grounds which may be summarised as follows:

(a) Ground 1: the Tribunal misconstrued the expression 'potential government primary school' on Plan 2 of the Truganina Precinct Structure Plan.

(b) Ground 2: the Tribunal misconstrued the PSP by effectively construing Plan 2 in the PSP as containing, in itself, independently of any 'requirement' in Part 3 of the PSP, a requirement that use and development of land must be in accordance with Plan 2.

(c) Ground 3: the Tribunal misconstrued the PSP, effectively by inferring from the existence of R33 in Part 3.3.2 relating to a 'non-government school site', a requirement or other rule or norm in the PSP relating to a site designated in Plan 2 as 'potential government primary school' with which the proposed permit would be inconsistent.

(d) Ground 4: in light of the Tribunal's finding that there was 'no longer any potential or possibility that Lot A will be developed and used for a government primary school',[17] it was not open to the Tribunal on a proper construction of the PSP to conclude that the residential subdivision of Lot A is not 'generally in accordance with' the PSP for the purposes of clause 37.07 of the Urban Growth Zone - Schedule 10 to the Wyndham Planning Scheme.

(e) Ground 5: the Tribunal erred in construing G26, and in so doing, erred in its construction of Plan 2 and the Truganina PSP more generally.

1. Intrapac's grounds 1 to 3 and 5 turn on the proper construction of Plan 2 in the PSP, either in its own right or by reference to other provisions of the PSP, and invite an answer to the overarching question of law: did the Tribunal misconstrue Plan 2?
2. Ground 4 stands separately from the other grounds because it contends that the Tribunal's finding was not reasonably open to it. Intrapac says that if one or more of grounds 1 to 3 is made out, the Tribunal's conclusion that the proposal was not generally in accordance with the PSP was not reasonably open because it had also found that there was no potential or possibility that the land would be developed as a government primary school. Indeed, Intrapac says that the only conclusion available to the Tribunal in those circumstances was a finding that the proposed development was generally in accordance with the PSP.
3. Ground 4 is directly related to the relief sought by Intrapac. In the first instance, Intrapac invites this Court to set aside the decision of the Tribunal and, in effect, remake the decision by positively concluding that its proposal is generally in accordance with the PSP. It says that the Court has the power to do so under s 148(7)(c) of the VCAT Act. In the alternative, Intrapac seeks an order remitting the matter to VCAT to be determined in accordance with any directions this Court might give as to the conduct of the case upon remittal.

Grounds 1-3 and 5: The Proper Construction of the PSP

1. In the absence of express language in the PSP endorsing or prohibiting the ability to consider an alternative use to that of a 'government primary school', the meaning of the word 'potential' as it is used in Plan 2 assumes considerable significance. The Tribunal correctly proceeded upon the basis that the word 'potential' must be interpreted as having work to do.
2. It is apparent that the Tribunal was troubled by a number of aspects of the drafting of the PSP. The Tribunal said:

Based on the material before me, it is not clear:

1. why the only categories in the legend to Plan 2 that have the qualifier 'potential' are the three types of schools; and
2. for what purpose the qualifier 'potential' has been employed in reference to the schools.[18]

1. The ensuing paragraphs of the Tribunal's decision records its attempt to resolve the perceived conundrum. It is apparent that the Tribunal was concerned about the consequences of a construction which would permit consideration of a proposal for alternative uses. It is also apparent from the reasoning of the Tribunal that it was uncomfortable with the possibility that alternative uses might be considered to be generally in accordance with PSP as a matter of principle. The Tribunal said:

I accept that there is a general discretion retained by the Council in relation to its management of development and its issuing of permits. I also accept that the Truganina PSP specifically provides that not every aspect of the use, development or subdivision of land is addressed in the Truganina PSP.

However, in my view, the retention of this general discretion needs to be read in conjunction with the requirements of the UGZ10, and specifically the operation of clause 37.07-10 that a permit for subdivision must be generally in accordance with the Truganina PSP. If the general discretion is read too broadly, with the effect that it enables the Council to approve alternate use and development that is not specifically contemplated in the provisions of the Truganina PSP, there is the potential for this process to provide a 'back door' to changing the content of the Truganina PSP, without the rigour of the PSP amendment process. This would also seemingly undermine the requirements of the UGZ10 for use, development and subdivision to be 'generally in accordance with' the Truganina PSP, given the responsible authority could approve a planning permit for something different, even if this was not generally in accordance with the Truganina PSP.[19]

1. It might be said that this was a distraction from the textual analysis of the language of the PSP.[20]
2. There can be instances where a departure from the natural and ordinary meaning of the word is justified. In SZTAL v Minister for Immigration and Border Protection ('SZTAL') [21] the High Court restated succinctly, and relevantly in this case, that:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[22]

1. That said, in my view there is nothing in the context, text or purpose of the PSP, nor in how 'potential' is deployed in Plan 2, which justifies a departure from the natural or ordinary meaning of the word in this case.
2. In adopting the ordinary meaning of the word 'potential', a sensible and harmonious construction of the PSP as a whole can be discerned, namely:

(a) At the time of drafting the PSP, the land where schools (government and non-government) might be established was identified and depicted in the plan.

(b) At that time, it was not certain that all of the schools depicted would, in fact, be established in those locations.

(c) To reflect that uncertainty, the land for schools was designated in a qualified way by inserting the word 'potential' - reflecting the possibility that if schools were to establish in the Truganina precinct, they would be established in the designated locations.

(d) The natural and obvious corollary of this drafting is the possibility that schools would not be established in the designated location.

1. Adopting that meaning, the question of construction is: whether the PSP and the planning scheme, taken together, prohibit consideration of alternative uses where the designated 'potential' use is incontrovertibly precluded?
2. The answer to that question lies in an analysis of both the language of the PSP read as a whole, and the provisions of the planning scheme which give it effect. In my view, interpreting the PSP and the planning scheme in a way which would permit the consideration of possible alternative uses would yield a construction which is consistent with:

(a) The ordinary meaning of the word 'potential' as it appears throughout the PSP;

(b) The text and images contained within the PSP taken as a whole; and

(c) The inherent flexibility contemplated by the words 'generally in accordance with', as they appear in the planning scheme.

1. The better view is that, on the proper construction of this PSP, there is power to consider possible alternative uses. Whether that power should be exercised will depend upon a range of factors which are matters for the planning decision maker and the Tribunal on review.

1. It is an important canon of construction that where the same word appears in the same legislation it should, in the absence of a contrary intention, be given the same meaning.[23]
2. The word 'potential' appears more than 20 times in the PSP. It variously describes:

(a) A 'potential' railway station;

(b) 'Potential' community facilities depicted in concept plans for the town centres within the precinct; and

(c) 'non-government' schools, which the PSP expressly acknowledges in a number of places, may not proceed.

1. In each instance, the word must be construed to mean 'possible and not actual'. In each case the possibility of the use materialising will depend upon some future assessment or the happening of an event which may or may not transpire.
2. The problem with the Tribunal's interpretation of the word 'potential' is that it attributes to it a narrower meaning when used to describe government schools than the proper construction of the same word elsewhere in the PSP, when used to describe other schools and other uses, absent a textual justification for doing so.

1. The language and structure of the PSP creates a framework which:

(a) Acknowledges the possibility of departures from what is shown in drawings within the PSP;

(b) Creates boundaries around such departures in some instances, but not in all cases;

(c) Recognises that some proposals may not be addressed at all in the PSP;

(d) Articulates guiding principles for the assessment of proposals which are not explicitly dealt with in the PSP.

1. In the context of this framework, there is nothing in the language of the PSP or the planning scheme which expressly prohibits consideration of possible alternative uses where the word 'potential' is used to describe the designation of the land use on Plan 2.
2. Clause 37.07-10 provides that all development must meet the requirements of the PSP. Importantly, it is not a requirement of the clause, Schedule 10 or the PSP that all use and development must be located in precise accordance with what is shown on Plan 2.
3. Here, what is shown for Lot A on Plan 2 is the designation of a 'potential' land use. Notwithstanding that the Intrapac land has the locational attributes which make it suitable for the designated use, the language recognises that there remains the possibility that the Intrapac land will not be used for that purpose. Instead of language which expressly prohibits its use for any other purpose in that situation, the PSP recognises that there is the potential for consideration of development proposals which are not explicitly addressed.

1. Part 1.1 of the Truganina PSP gives express guidance as to how the document is to be read:

This structure plan guides land use and development where a planning permit is required under the Urban Growth Zone or another provision in the Wyndham Planning Scheme that references this structure plan.

A planning application and a planning permit must implement the outcomes of the precinct structure plan. The outcomes are expressed as the vision and objectives.

Each element of the precinct structure plan contains requirements, guidelines and conditions as relevant.

Requirements must be adhered to in developing the land. Where they are not demonstrated in a permit application, requirements will usually be included as a condition on a planning permit whether or not they take the same wording as in this structure plan. A requirement may reference a plan, table or figure in the structure plan.

Guidelines express how discretion will be exercised by the responsible authority in certain matters that require a planning permit. If the responsible authority is satisfied that an application for an alternative to a guideline implements the outcomes, the responsible authority may consider the alternative. A guideline may include or reference a plan, table or figure in the structure plan.

Conditions in this PSP must be included in a permit as relevant.

Development that meets these requirements, guidelines and conditions will be considered to implement the outcomes of the precinct structure plan.

Development must also comply with other Acts and approvals where relevant e.g. the Environment Protection and Biodiversity Conservation Act 1999 in the case of biodiversity or the Aboriginal Heritage Act 2006 in the case of cultural heritage amongst others.

Not every aspect of the use, development or subdivision of land is addressed in this structure plan. A responsible authority may manage development and issue permits as relevant under its general discretion.

[emphasis added]

1. The underlined parts of the quoted passage reinforce important assumptions which inform the proper construction of the PSP as a whole, namely that:

(a) The PSP is not the source of power to grant a permit;

(b) The PSP does not profess to address every aspect of use, development or subdivision in the structure plan. It must be taken to expressly contemplate the possibility that development which proposes something not addressed by the PSP may occur. The necessary corollary of that assumption is that land uses designated in Plan 2 could change in appropriate circumstances;

(c) Any permit must meet the requirements set out in the PSP - mirroring the content of the clause 37.07-10 - importantly there are no requirements which dictate that all development must accord with Plan 2;

(d) Guidelines in the PSP are not requirements, but rather guides from which a proposal may depart. It must follow from this text that a development which proposes an alternative to what is shown in the PSP may be considered - and approved - where the proposal meets any relevant requirements, and where it is a proposal which implements the outcomes sought by the PSP.

1. Importantly, Part 1.1 of the PSP makes clear that a requirement may reference a plan, table or figure in the structure plan. Plan 2 is not referenced in any requirement which would preclude consideration of alternative uses like that proposed.

1. The overarching issue for the consideration of any proposal within the PSP area is whether it implements the outcomes sought by the PSP. The 'outcomes' (comprising the vision and the objectives) are set out in Part 2.0 of the Truganina PSP. The stated 'vision', contained in Part 2.1, is broadly expressed. The statement of 'vision' records the core elements that have informed the planning of the area. These include the following statements of most relevance to the present case:

Under the Truganina Structure Plan, these waterways, dry stone walls, plantings, and other historic remnants become the founding element of a new urban structure that maintains and embraces the character of the plains.

The creeks and their tributaries will link a series of new neighbourhoods across the precinct. ... The network will interconnect town centres and community hubs, extending over 20 kilometres within the bounds of the precinct and further into the surrounding region.

...

In the north-east the Truganina local town centre, located adjacent to the potential future Truganina station, will complement the major centre with additional local services for the nearby residential neighbourhoods, office parks and industrial areas.

...

[T]he increased amenity, public transport infrastructure and town centres will lead to a greater variety of housing choices across a series of highly diverse new neighbourhoods.

(a) The statement of vision does not expressly embrace Plan 2, but rather describes foundational aspects of the urban structure depicted in Plan 2;

(b) No specific reference is made to the location of any school in particular, but reference is made to the interconnection of town centres and 'community hubs'. It is tolerably clear that the reference to 'community hubs' could include schools, which as the Council pointed out, are shown located in Plan 2 - adjacent to parkland and on the network of streets, waterways and paths - facilitating the kind of interconnectedness described as part of the 'vision'. It might be inferred that if there is going to be a school, the designated location is the appropriate one. It would be going too far to say that no other use on that land could achieve the objective, or that the objective is not otherwise achieved by the presence of the parkland alone;

(c) No part of the statement of vision forecloses on departures from the urban structure depicted in Plan 2 where the outcome achieved by such a departure could equally achieve the objectives;

(d) Part 2.2 sets out the objectives of the PSP which, together with the 'vision', combine to form the outcomes which must be implemented. A number of objectives are identified in the Truganina PSP, some of which are relevant in construing that document in the present case. The objectives most relevant to the present case include:

O5: Deliver an integrated network of local parks, sports reserves and community infrastructure that meets the needs of the new community.

O11: Promote greater housing choice through the delivery of a range of lots capable of accommodating a variety of dwelling typologies.

O12: Leverage off the amenity offered by waterways, open space and town centres to deliver medium and high density housing options.

O13: Deliver sufficient residential densities within a walkable catchment to support vibrant and viable town centres.

O19: Ensure that development staging is co-ordinated with the delivery of key local and state infrastructure.

O20: Provide for non-government school sites to meet strategically justified education need for Catholic primary and secondary education and other non-government education in the area.

O22: Deliver a minimum of 9,105 new homes (16 dwellings residential net developable hectare overall precinct average).

[emphasis and formatting added]

(a) No objective in the PSP expressly ties an objective to development which is precisely in accordance with Plan 2;

(b) The only objective which makes any reference to schools of any kind is O20, which invites provision to be made for non-government schools. It is an objective of the PSP to 'provide for' such schools. The objective is not 'to provide' those schools, either at all, or only in the designated locations depicted in Plan 2. Importantly, this objective requires provision to be made for such schools if the need for them is strategically justified. On its own terms, O20 contemplates that such schools may not be provided. This is explicitly consistent with the natural and ordinary use of the word 'potential' in Plan 2; and

(c) The objectives are entirely silent in relation to government schools. There may be any number of explanations for that, but in the end, that absence does not support a conclusion that the PSP does not allow consideration of alternative proposals for the use of the land in any circumstances.

1. The text of specific requirements and guidelines contained within the PSP also provide important context, as much for what they say, as what they do not.

1. Part 3 of the PSP is directed to the implementation of the plan and is divided into seven separate parts organised thematically across a range of matters. Each part contains requirements, guidelines and conditions. Part 3.3.2 is headed 'Community Facilities & Education'. The section contains the requirements and guidelines which apply to community facilities and education contemplated by the PSP.
2. Only two requirements apply to schools and community facilities:

R33: Where the Responsible Authority is satisfied that land shown as a non-government school site is unlikely to be used for a non-government school, that land may be used for an alternative purpose which is generally consistent with the surrounding land uses and the provisions of the applied zone.

R34: Schools and community centres must be designed to front and be directly accessed from a public street with car parks located away from the main entry.

[Formatting added]

1. R33 does not apply to government schools. Requirement R34 ('R34') applies to both government and non-government schools, but proceeds upon the basis that a school will be developed, which is not the case here.
2. While neither requirement expressly references Plan 2, it is clear enough that where the R33 refers to 'land shown' it is making a reference to plans contained within the PSP including Plan 2. R34, along with the associated guidelines, contemplate that if a school is to be provided it may take a different configuration to that shown in Plan 2.
3. There are no requirements dealing with the possibility that a government school might not materialise.
4. The Council submitted, and the Tribunal accepted, that considerable significance attached to the existence of R33, concluding that the absence of an equivalent requirement in respect of land designated for use as a government school meant that no alternative use could be approved under the PSP for the government school land.
5. The Council's second ground for refusing the permit application proceeds upon the basis that R33 confers a power upon it to grant a permit which departs from Plan 2, and that because no equivalent power is provided in respect of government schools, no power exists to permit alternative uses on land designated in Plan 2 for government schools.
6. What is immediately apparent from the terms of R33 is that it expressly contemplates the possibility that a non-government school shown on Plan 2 may not proceed. This is consistent with the ordinary meaning of the word 'potential' as it appears in Plan 2 to describe non-government schools. It also highlights the flaw in the Tribunal's interpretation of the word 'potential'. If the word 'potential' is to be interpreted consistently within the PSP, R33 demands a different meaning of the word 'potential' to that which was arrived at by the Tribunal.
7. Where a non-government school does not proceed, and the Council is satisfied as to that state of affairs, R33 operates as a limitation upon the kind of permit which might be granted in those circumstances, namely: it limits the alternative purposes for which the land may be used to those which are consistent with the surrounding land uses and the provisions of the applied zone. Requirement 33 operates, within the framework established by the PSP and clause 37.09, as the articulation requirements which must be met by any permit before a permit can be granted - namely, the satisfaction of the Council as to the relevant state of affairs, and the proposal of a use which met the stated criteria.
8. In its written submissions before this Court, the Council contended that R33 amounted to an orthodox application of the maxim expressum facit cessare tacitum (that which is expressed puts an end to that which is unspoken). The principle was authoritatively stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia:[24]

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[25]

1. The Council's position is premised upon the assumption that R33 confers power. Contrary to the submissions of the Council, and the findings of the Tribunal, R33 does not confer, and is not the source of, any power. As the planning scheme, and the PSP, make clear, the power to grant a permit is conferred by the provisions of clause 37.07 subject to the requirements contained in the PSP being met. R33 is a requirement which applies only to land designated as a potential non-government schools. A further difficulty with the construction adopted by the Tribunal is that it invites the consequence that the PSP is to be read as implying prohibition in the absence of express language of permission. There is no warrant for reading the PSP in this way in light of the machinery provision of Part 1.1 of the PSP.

1. Part 3.3.2 also contains guidelines in relation to community facilities. The relevant guidelines, as the name suggests and as is made clear by Part 1.1 of the PSP, are intended as guides to achieve implementation of the outcomes sought by the PSP. They are not requirements, which must be met to comply with clause 37.07-10. There is scope to depart from guidelines expressly stated in the PSP. There are six relevant guidelines for community facilities:

G21: School sites should be provided with three street frontages where practicable.

G22: Any educational or community infrastructure not shown on Plan 2 should be located within or proximate to a major town centre, local town centre or an existing community hub, as appropriate.

G23: Any private childcare, medical or similar facility should be located proximate to the Major Town Centre, any Local Town Centre, Local Convenience Centres or nominated community hub, as appropriate.

G24: Community facilities which are located in a town centre should be designed to maximise efficiency of land use through the sharing and overall reduction of car parking spaces.

G25: Community facilities, schools, and sporting reserves which are co located should be designed to maximise efficiencies through the sharing of car parking spaces and other complementary infrastructure.

G26: The indicative layout of community facilities, schools, and open space as illustrated in Plan 2 may be altered where approved by the responsible authority.

[Formatting added]

1. The Council contends that G26 permits a change of layout (i.e. change of configuration) of community infrastructure, but not a change of use. In construing G26, the Tribunal concluded that it 'enables the "indicative layout" of a school shown in Plan 2 to be altered where approved by the responsible authority' but would not extend to the removal of a school site. Rather, the guideline deals with its general location in Plan 2; for instance, whether the site be made wider or longer or extend further along a road interface.[26]
2. The Tribunal's reasons do not reflect the actual language of the guideline. When the word 'potential' is given its ordinary meaning in Plan 2, there is no warrant for narrowly construing the word 'alteration' or the phrase 'indicative layout' as confining the exercise of discretion to merely moving boundaries or tweaking the configuration of the specified uses in the locations shown on Plan 2. Plan 2 illustrates the indicative layout of a range community facilities, not just schools. The word 'layout' is of broad import. In this context it is clearly a reference to the location of these uses relative to one another (and other features) in the plan, as well as to their configuration (their shape and size). The word 'alteration' simply means change. The use of the word 'illustrated' is apt to reflect that Plan 2 is an indicative illustration of the size, shape and location of the specified uses, all of which are amenable to some degree of change with the approval of the responsible authority. There is no reason to preclude from the meaning of 'alteration' the possibility of moving the location of these uses, and where consistent with the other language of the PSP, permitting alternative uses.
3. Importantly, G26 is a guideline and not a requirement. Where a responsible authority declines to give approval under G26 for such an alteration, it remains open to consider a proposal which nonetheless implements the outcomes sought by the PSP. Put simply, it cannot be said that the content of a guideline informs the jurisdiction of the Council to consider alternative proposals. As Part 1.1 provides, if a proposal is not capable of meeting a guideline (i.e. as in this case the responsible authority declining to give permission) it remains open to consider proposal that nonetheless implements the outcomes of the PSP.

1. In argument in this Court and before the Tribunal below, the Council drew attention to a range of matters which it said militated against a construction which permitted any consideration of alternative uses for the sites designated as government schools. In the course of these reasons, some of those matters have been addressed, and are not repeated here. The following matters are dealt with for completeness.

The expression 'generally in accordance' accords some flexibility in the development of the precinct. But, where a change would undermine the achievement of one or more PSP objectives, or have 'significant implications' for other PSP elements, it cannot be considered 'generally in accordance' with the PSP, unless the PSP explicitly provides for such a change.[27]

(a) Departures from plans shown in a PSP, even significant departures from those plans, may nonetheless be generally in accordance with the PSP, depending upon the language of the PSP properly construed;

(b) Among other things, the explicit language of the PSP will inform the extent to which a departure may be permissible;

(c) Whether a proposal has significant implications for other elements of the PSP is a question of fact and degree, not a question of construction, unless there is specific language underscoring the essentiality of the delivery of particular items in precisely the same location as depicted in the attached plans;

(d) Where the PSP expressly acknowledges that it does not address every aspect of use, development or subdivision, and then describes a designated land use within the PSP as 'potential' it must be taken to contemplate the possibility that the land use in that location may not proceed;

(e) In the absence of specific language prohibiting the consideration of alternative uses, the proper construction of this PSP permits consideration of alternatives. It cannot be said of any proposal a priori that the mere fact of departure from a plan in the PSP undermines the objectives of the PSP or renders the proposal inconsistent with the PSP;

(f) Whether such a proposal implements the outcomes sought to be achieved by the PSP requires careful consideration of the proposal against those objectives, which necessarily involves questions of fact and degree.

1. The Council said that the location of schools is carefully laid out in the urban structure planning process, and this has occurred in the context of the Truganina PSP. The three government primary schools are each positioned adjacent to a sports oval, contributing to the achievement of an 'integrated network'. In support of that submission, the Council drew attention to the text of a report by a Planning Panel appointed under the PE Act to consider Amendment GC28 to the Mitchell and Whittlesea Planning Schemes concerning the implementation of the Donnybrook/Woodstock PSP. The Panel said:

[I]f it transpires that a government school is not to be developed in a location specified in a PSP it will likely have significant implications for other PSP elements, such as the location of community facilities, sports reserves and the like. The impacts on the further urban form of the PSP are likely to be greater than if a non-government school did not proceed.[28]

[emphasis added]

1. The statements made by the Panel do not support the contention that in all cases an alternative use will necessarily have significant implications for other PSP elements. The question of whether or not an alternative use will have a significant impact on the achievement of a PSP's objectives is a question of fact. It will depend upon a number of things, including but not limited to the nature of the use proposed and its interfaces with adjacent uses.

1. The Council submitted that Intrapac's proposed development is contrary to Objective 5 of the PSP, which states that the PSP seeks to deliver 'integrated infrastructure that meets the needs of the community'.
2. Whether a proposal meets such an objective is a question of fact. An alternative use of the land for a medical centre, or privately operated childcare facility, or indoor sporting facilities, or a place of worship, or even a non-government religious school - would all be uses that could be considered under the applied zoning 'Residential Growth Zone 1'. The community need for such uses is a question of fact. The extent to which they might deliver, or alternatively, compromise the integration of infrastructure is also a question of fact. The same can be said for the proposed residential development.
3. The question which arises on an application for permit is whether, by providing something other than the 'potential government primary school' the development can, nonetheless, achieve the objective of delivering integrated infrastructure that meets community needs. A number of factual elements would need to be addressed in examining the answer to that question - configuration of the proposed development, land use mix, the size of the land relative the broader precinct; the impact of the proposed development upon the immediate environs and the broader precinct. This factual inquiry would be directly relevant to whether the proposal is generally in accordance with the PSP, as well .

1. The Council submits that if the Intrapac land were developed for an alternative purpose the Council may not be permitted to collect development contributions because no provision is made for the collection of development contributions for the Intrapac land designated as 'potential government primary school'. This, it says, is to be contrasted with the position in respect of land designated as a 'non-government primary school' used for an alternative purpose.[29] Intrapac has taken the view that it can be made to pay, and will pay, development contributions if the land is subdivided.
2. Development contributions are devised by a process of calculating the cost of public infrastructure to be provided within a precinct, and then dividing that sum by the number of net developable hectares to produce a monetary amount per developable hectare which is then levied upon all development. The requirement to pay development contributions arises when a permit is sought to subdivide land within the area to which the Development Contributions Plan Overlay ('Overlay') applies.
3. The Overlay area in this case is divided into two charge areas: Area 1 - Residential; and Area 2 - Employment. The Intrapac land designated as a 'potential government primary school' lies squarely within the residential charge area. Within the residential charge area, all development is required to pay a development infrastructure contribution of $284,000 per net developable hectare; and $1,150 per dwelling towards community infrastructure in accordance with clause 3.0 of the Schedule to the Overlay.
4. The Development Contributions Plan ('DCP') provides, at Part 3.1.1, that:

[A]ll development infrastructure contributions are payable on the net developable area of land on any given development site.

For the purposes of this DCP the NDA [net developable area] is defined as the total amount of land within the main catchment area that is made available for development of housing and employment buildings including lots all connector and local streets. It is the total MCA [main catchment area] minus community facilities, schools and educational facilities, open space in Cumberland and arterial roads. Any additional local parks to fund at the subdivision stage are included in the net developable area.[30]

1. In the DCP, (which covers the Truganina PSP area as well as others), the net developable hectares are calculated, as the text reflects, by excluding land to be used for schools. As a function of simple arithmetic, removing these areas decreases the size of the divisor in the calculation of the levies payable per developable hectare. In the calculation the total area of all potential government schools is 18.9 Ha (2.7% of developable area) and all non-government schools is 22.1 Ha (3.16% of developable area). The DCP provides:

The 'per Net Developable Hectare' contributions will not and must not be amended to respond to minor changes to land budgets that may result from the subdivision process. In other words, the DCP is permanently linked to the calculation of Net Developable Area set out in the detailed land budget in Table 9.[31]

1. Two things flow from this statement. The DCP acknowledges that there will be changes to the amount of land developed during the course of development, but the rate per hectare will not be changed to respond to minor changes to the land budget. The Intrapac land designated for a 'potential government primary school' is 3.5 ha in area representing less than 0.3% of the total area, and approximately 0.5% of the net developable area of the Truganina precinct.
2. The obligation to pay contributions arises on an application for a planning permit. If the land were in fact developed for a government school, the State would be exempt from paying development contributions because the provisions of the planning scheme would not apply,[32] and in all likelihood no permit would be required. This is not the position for non-government schools. This fact explains the existence of Parts 3.2.12 and 4.3.5 of the DCP which 'turn off' the requirement to pay development contributions if land is developed for a non-government school, but then 'turn on' the requirement to pay the levy where the land is developed for an alternative purpose. Turned off or on, the land area of the non-government school has been excluded from the calculation of net developable area, but would nonetheless attract a requirement to pay development contributions if an application were made to subdivide the land, but with no change to the contribution per hectare payable within the DCP area, and without any change to the net developable area in the precinct, or the land budget.
3. The Council says that the effect the relatively recent decision of a differently constituted Tribunal in UPG 291 v Casey City Council ('UPG')[33] suggests that contributions may not be payable. In that case, land set aside for stormwater infrastructure was ultimately released for development for residential purposes with the Council's approval. The approval, in the form of a planning permit, included a condition which imposed a requirement to pay the development contribution levy. The landowner sought review of the conditions on the ground that, at the date of the approval, the DCP did not impose levies on the land in respect of which the permit was granted. The land in respect of the permit was granted was not included in the net developable area of the DCP as it had been earmarked as a waterway.
4. The Tribunal concluded that development contributions were not payable because the land in question had not been specified in the DCP as subject to the levy. The Council says that the same issue potentially arises here.
5. Intrapac says that the decision in UPG is confined to its own facts, and the specific terms of the DCP and PSP under consideration in that case. In that case, the DCP included a provision which permitted the variation of the land budget which, if made, could have embraced the water reserve land making the levy payable. To do so required a decision of the collecting agency.[34]
6. In UPG, the Tribunal held that absent a variation to the land budget in the manner contemplated by the DCP, land which had not been included as part of the net developable area in the DCP could not be the subject of a DCP contribution.[35] The DCP under consideration there included a provision that the land budget could be amended by the collecting agency under the PE Act, but there was no evidence before the Tribunal that such an amendment to the land budget embracing the former drainage land had occurred.[36] In UPG the Tribunal was considering the question whether, after the permit had been granted, the requirement to impose a DCP levy was valid where there had been no variation to the land budget.
7. Intrapac points submits that the situation in the present case is different. In the present case, while the DCP does not contain a provision permitting the collecting agency to vary the land budget and thereby bring the school land within the DCP, the Truganina PSP expressly contemplates that the responsible authority may vary the land budget. Intrapac also points out that as no permit has yet been issued in this case, there remains a discretion to vary the land budget before the permit is issued, which stands in contrast to the position in UPG
8. Stepping back from the issue in dispute in UPG, the case demonstrates that there are any number of instances where land which has been excluded from the land budget becomes, for whatever reason, amenable to development which was not anticipated at the time of the approval of a PSP or DCP. In UPG land which had been designated as a water reserve in the PSP and DCP as a water reserve was approved for residential development. It is clear that DCPs and PSPs can include mechanisms which facilitate embracing land not previously subject to the payment of levies. It appears that such a mechanism existed in UPG, even if the Council in its capacity as collecting agency failed to avail itself of the power to vary the land budget in a timely way. It is also apparent that a similar mechanisms exists in the PSP in this case, and that because a permit has not yet been granted, there would be time for the Council in its capacity as responsible authority, to make the appropriate adjustments to ensure that a DCP levy is paid. But even if all of that is wrong, and the Council does not have the power to bring the land within the operation of the levy, or (as in UPG) fails to exercise its power to amend the land budget, none of this informs whether the Tribunal, as a matter of construction, has jurisdiction to consider an alternative use.
9. The impact of a proposed development for an alternative purpose on the delivery of development infrastructure provision and funding might go to whether a permit should be granted - but that will always be a question of fact and degree, not a question of power.

1. The Council submits that if the construction for which Intrapac contends is correct then:

The Council (or the Tribunal on review) would not be permitted to consider the implications of the proposal, in strategic planning terms, on the land or on the precinct (including as those matters concern the location or configuration of other community facilities or the broader urban form of the PSP); and could not make consequential changes to the PSP to accommodate any change in use.[37]

1. This is incorrect. The Council's case here is that, as a matter of construction, it does not have power to consider any alternative proposal. On the Council's case, the inquiry which clause 37.07-10 requires (i.e. is the proposed permit generally in accordance with the PSP?) is brought to an end immediately by reason that the proposal is different from the designated use Plan 2 of the PSP.
2. A construction which permits consideration of such a proposal does not mean that the proposal in question will necessarily be, after consideration of all of its detail, generally in accordance with the PSP.
3. That question could only be answered in the affirmative if it can be said that the proposal implements the outcomes sought to be achieved by the PSP. It has always been open for the Council to contend that a particular proposal for an alternative use would compromise the objectives of the PSP, the delivery of planned infrastructure in the DCP, that the proposed replacement uses are appropriate in the strategic context of the PSP, or that the configuration of the uses in some way compromises the outcomes sought to be achieved by the PSP. These would all be questions of fact relevant to the question: does the proposal implement the outcomes sought to be achieved by the PSP, and in turn the question: is the proposal generally in accordance with the PSP?
4. The Council says that:

In this case, the PSP reflects a determination by the planning authority, as approved by the Minister, that the identified schools are necessary to achieve the strategic needs of the precinct. It is ultimately a matter for the State when, whether and where to deliver government schools. But the State's intention from time to time (via the Department) does not affect the planning assessment made under the statutory framework, and reflected in the PSP, as to the needs of the precinct.[38]

1. That submission does not grapple with the effect of the word 'potential' and the rest of the PSP taken as a whole for the reasons already stated.

1. In its reasons the Tribunal embraced the statements made by an earlier decision of the Tribunal in Earthlink Contractors Pty Ltd v Casey City Council[39] ('Earthlink') where it described in broad terms the approach to be taken in assessing 'general accordance'.[40] In Earthlink, the Tribunal set out a non-exhaustive list of principles which it said were distilled from a consistent body of Tribunal decisions, as follows:[41]

(a) General accordance is a question of fact to be determined in the circumstances of each case. The term itself contemplates some flexibility of application.

(b) For a proposed development to be generally in accordance with the relevant plan, it need not be identical to that described in the incorporated precinct structure plan.

(c) The less detail and precision there is in the primary document, the more flexibility can be accorded to the term. The converse may also apply.

(d) It is appropriate to consider the incorporated precinct structure plan as a whole when making this assessment, including its language and intent. The assessment should not involve a 'spot the difference examination' rather, it is a question of whether the departures are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the precinct structure plan.

1. As far as they go, the principles set out in Earthlink are correct statements as to the general nature of the inquiry, but it is worth making some additional observations:

(a) First, the principles described in Earthlink, and in the other cases from which they are derived, are necessarily generalised;

(b) Second, the cases from which the principles were distilled are illustrative of the wide variety of contexts in which the phrase 'generally in accordance with' is deployed - ranging from cases where the phrase is used in planning permit conditions to compare detailed architectural plans submitted with an application with those submitted for endorsement under the permit, to other cases where the phrase appears in provisions of the planning scheme, and everything in between;

(c) Third, in addition to the variety of ways in which the phrase can be deployed, there are varying degrees of precision used in the relevant plan, ranging from detailed architectural drawings to conceptual sketches, sometimes but not always supplemented by text. Where supplemented by text, the precision of the language can vary from broad statements of strategic intent to detailed and prescriptive language. Differences in the precision of the language can be evident within the same document;

(d) Fourth, consequent upon the differences in content and context of a plan, the degree of flexibility contemplated by the phrase 'generally in accordance' can vary considerably;

(e) Finally, the description of the inquiry as universally involving a question of 'fact and degree' is not entirely accurate, particularly in the case of PSPs, and is apt to be a misdescription in some cases. The present case is a good example, where the inquiry as to whether the proposed alternative use is generally in accordance stopped short of the 'fact and degree' exercised described in the cases because a threshold question of construction was raised which was said to prevent any consideration of those matters at all.

1. A PSP is not a simple plan or drawing. PSPs are often a combination of drawings and text guiding the evaluation of the planning merits of proposals to achieve complex, multifaceted planning outcomes over large areas of land often in disparate ownership.
2. Though the PSP is described and written as a 'plan' rather than as a statute, it nonetheless has a statutory role to play. A PSP is part of the planning scheme, and its interpretation is guided by the usual rules of construction.[42]
3. Assessing whether a proposal is 'generally in accordance' with the PSP as a matter of jurisdiction sometimes involves only questions of fact and degree - of comparing the differences and similarities and assessing the proposed outcomes against those contemplated by the PSP in the judgment of the expert Tribunal.
4. Indeed, the more factually complex cases arise where a PSP neither expressly prohibits, discourages nor encourages an outcome, leaving the planning decision maker to determine whether the proposal is, having regard to the content of the PSP as a whole, generally in accordance with the PSP.
5. The Truganina PSP (like most PSPs) deals with a very wide range of issues, at a point in time before detailed planning of actual development within the precinct has begun. Clause 37.07-10 contemplates the need for flexibility in the assessment of proposals against the PSP by deploying the phrase 'generally in accordance with' rather than some other more prescriptive requirement demanding a stricter implementation of the content of the PSP.
6. There can be no universal rule that departures from a PSP must be minor. Depending upon the language of the PSP, a proposal which departs from the plans or language contained in the PSP in a physically significant way might still be generally in accordance with the PSP. Equally, physically minor departures from the content of the PSP may be incapable of being described as generally in accordance with the PSP. The degree of flexibility contemplated by any PSP must be derived from the drawings, images, structure and language of the PSP taken as a whole.
7. In seeking to implement the vision contained in the plan, a PSP may be highly prescriptive in relation to certain aspects of the future development of the area, but in relation to other aspects, be less prescriptive.
8. This is evident in the Truganina PSP. The PSP could have contained provisions which expressly precluded consideration of alternative uses of land where the potential for a designated use could not be realised. It could easily have achieved that result by not including the word 'potential' as a descriptor of the designated land use. It could also have done so by deploying express language which precluded departure from the land uses depicted in Plan 2, and/or expressly requiring permission to be given for such a departure.
9. The Truganina PSP does deploy express language to provide specific guidance in relation to some matters but not others. In Part 3.3.1, R28 requires that all parks must be located, designed and developed generally in accordance with the relevant description in Table 5 unless otherwise approved by the responsible authority. The table links to Plan 3, which clearly uses Plan 2 as its base. The balance of R28, read in combination with R32, imposes specific requirements which must be met, coupled with a condition which would permit departure from the requirements in certain circumstances. The requirements, framed in this way, must be read in the context of the PSP as a whole, as necessary to ensure the vision and objectives of the PSP will be implemented, even where there might be a departure from the specified locations depicted in Plan 2.
10. Similarly, in the case of the town centres and employment areas (at Part 3.2) the PSP includes various concept plans. The textual 'requirements' are informed by the Concept Plans. The Concept Plans are drawn at a greater scale and contain more detail, but are clearly derived from Plan 2. None of the town centres or employment areas are described as 'potential', either in Plan 2, or in the text of the PSP. In each case, the requirements (such as R16, R17, R20 and R24) variously require development to engage with the Concept Plan and Plan 2. The requirements of the PSP in this section demand varying degrees of fidelity to the Concept Plan and Plan 2. Some of the requirements seek that development within the town centre 'respond' to the Concept Plan, others permit development 'proximate' to the land shown in Plan 2, rather than necessarily within the area delineated as town centre on the map - evidencing a degree of flexibility in location. None of these provisions can be taken to imply that the areas designated for 'town centre or employment uses' might not be used for that purpose. The flexibility permitted is as to form, such that a proposal to use the land designated for town centre for an industrial use would be clearly inconsistent with the outcomes sought to be implemented by the PSP.
11. These examples illustrate the point that there are varying degrees of flexibility expressly provided for within the PSP itself. In the present case, the Council contended that the proper construction of the PSP precluded consideration of the alternative uses.
12. In light of the architecture and language of the PSP, the inferences necessary to support the Council's position and uphold the decision of the Tribunal cannot be drawn. Properly understood the PSP cannot be read to exclude the possibility that an alternative use could be regarded as 'generally in accordance with' the PSP in circumstances where the PSP:

(a) acknowledges that it does not deal comprehensively with all uses and development which could occur within the precinct;

(b) includes a plan depicting the future urban structure which is untethered to language which requires each of the land uses to be located in accordance with the plan;

(c) some land uses in question are described as 'potential' - properly understood to mean that they may not proceed;

(d) contains no 'requirements' or express language precluding the consideration of alternative uses;

(e) expressly constrains or regulates departures from Plan 2, or the requirements in some respects, but not others;

(f) includes an overarching principle that proposals which are not specifically addressed in the PSP, or departures from things contained in the PSP, are to be assessed by reference to whether they implement the outcomes of the PSP - expressed through the stated vision and objectives contained in the PSP.

1. The existence of the power to consider a possible alternative use in the present case arises from the language and structure of the Truganina PSP, and as such should not be thought to be a rule of principle or general application. The situation may have been different if the designation of the school sites was not described by the word 'potential'.
2. It is also important to observe that the existence of a power to consider an alternative use in this case is not to suggest that any use should be permitted. Any number of uses might be proposed for this land. In each case an assessment against the outcomes sought to be implemented by the PSP would be required, with a view to determining whether the proposal implements the outcomes sought by the PSP. All other things being equal, a proposal which complies with all requirements and in all other respects implements the outcomes sought to be achieved by the PSP might be a long way toward being regarded as generally in accordance with the PSP. The correct construction of the PSP in this case leads only to the conclusion that an alternative proposal can be considered without stepping beyond jurisdiction.

1. The proper construction of the PSP does not prohibit consideration of alternative uses on land designated as a 'potential government primary school' in Plan 2.
2. None of the matters raised by the Council militate in favour of the construction which limits its power (or that of the Tribunal on review) to consider alternative uses.
3. Whether any such alternative use is 'generally in accordance' with the PSP remains, as question of fact and degree (rather than construction) for the Tribunal to determine, and will depend in large part upon whether the proposed use complies with the requirements of, and otherwise implements the outcomes sought to be implemented by the PSP.
4. Accordingly, the Tribunal erred in its construction of the PSP.

1. Intrapac submits that in light of the Tribunal's finding that there was 'no longer any potential or possibility that the land will be developed and used for a government primary school'[43], it was not open to the Tribunal on a proper construction of the PSP to conclude that the residential subdivision of Lot A is not 'generally in accordance with' the PSP for the purposes of clause 37.07 of the Urban Growth Zone - Schedule 10 to the Wyndham Planning Scheme. Intrapac is correct to say that:

[T]he only conclusion open on the correct application of the law to the facts is that the Truganina PSP allows the alternative use of land designated as a 'potential government primary school' where (as the Tribunal found) there is no longer 'any potential or possibility' that the land will be developed and used for a government school.[44]

1. In this case a positive finding that the proposed subdivision is generally in accordance with the PSP does not follow from a simple finding that the designated 'potential' use of the land is no longer a possibility. Similarly, a finding that, on the proper construction of the PSP, alternative uses may be considered does not address whether the specific proposal, properly considered, is in fact generally in accordance with the PSP.
2. For the proposed residential development to be generally in accordance with the PSP it must be held to implement the outcomes of the PSP (as stated in its vision and objectives). The case before the Tribunal was not framed by either party to address this question directly.
3. The preliminary hearing before the Tribunal was conducted for the purpose of determining the Council's first two grounds of refusal. Those grounds were directed to the question whether the Council (and the Tribunal on review) had power to consider an alternative use of the land.
4. It is true that the preliminary question was framed broadly, but the central question for consideration which formed the basis of the Tribunal's decision was considerably narrower. This is confirmed by reference to the submissions of the parties.
5. The Council submitted before the Tribunal that the question was one of jurisdiction:

Council's key submission is that the PSP unambiguously notes the land in question for a particular facility; namely a government school. There is nothing in the PSP that contemplates alternative uses on government school sites, or that otherwise suggests a discretion to consider alternative use proposals.

The discretion to allow alternative uses, as asserted by the Applicant, has no positive basis in any of the substantive provisions of the PSP.[45]

1. The Council said that the absence of such a power in relation to government schools leads to the conclusion that permission could not be granted, and bolstered the conclusion that such a proposal was not generally in accordance with the PSP.
2. The Council described the question before the Tribunal as one of jurisdiction, going to whether or not the Tribunal had power to consider the merits of the proposal.[46] It expressly eschewed consideration of the strategic and substantive merits of the proposed development. The Council's case was that the Truganina PSP should be interpreted to have the same effect as PSPs considered in other cases (Phenomenal), framing the constructional question as 'whether the particular PSP provides the requisite degree of flexibility in respect of the subject land that the permit applicant claims.'[47]
3. Intrapac's written submission before the Tribunal stated:

The fundamental issue that arises from this question is whether the designation of land in a Precinct Structure Plan (PSP) for a 'potential government school' precludes the development of that land for a different use supported and encouraged by the PSP in circumstances where the State Government has expressly disavowed any intention for the site to be used for a government school and that potential use is no longer in contemplation.[48]

1. In elaborating on this 'fundamental issue', Intrapac submitted in summary that:

(1) First, the text of the Truganina PSP supports an alternative use of part of the Subject Land, and the use of the word 'potential' to describe the 'government primary school' on the Subject Land is critical and determinative of the question before the Tribunal

...

(2) Second, the context and purpose of the Truganina PSP support the alternative use of the Subject Land

...

(3) Third, the Council's construction is not supported by the Tribunal's previous decisions which concerned specific PSPs which did not use the word 'potential' and the choice to use a designation that is deliberately different from that previously considered must be taken to reflect a choice that the Truganina PSP is to bear a meaning different from those previously considered; and

...

(4) Fourth, the effect of the Council's construction of the Truganina PSP is that, despite the Subject Land not being required for the potential use of a government primary school and that use is being delivered on a different site in close proximity, the Applicant (Intrapac) is to be deprived of the rights that it would ordinarily enjoy as a land-owner, including its right to develop its land and to obtain a valuable right in the form of a planning permit. If that was what was intended by the Truganina PSP, clear and express words which convey that intention must have been included. The use of the word 'potential' not only suggests that no such intention was sought to be conveyed, but positively militates against it.[49]

1. Intrapac's submissions were responsive to the Council's submissions, being filed seven days later, and confined to addressing the Council's two grounds of refusal which explicitly called into question whether the proposal could be considered at all on the terms of the PSP.
2. Neither Intrapac nor the Council sought to rely upon evidence or submissions as to the proposal's general accordance with the PSP in all other and relevant respects.
3. Intrapac, as its submissions make clear, was addressing the question of law directed to whether the Tribunal had power to consider the alternative proposal as one which might be capable of being regarded as 'generally in accordance with' the PSP, all other things being equal.
4. While it can be readily accepted that it was not open for the Tribunal to find that the proposal was incapable of being generally in accordance with the PSP on the factual findings made by the Tribunal, it would be intruding into the role of the Tribunal to finally determine in these proceedings that the proposed development is, in fact, generally in accordance with the PSP. To embark upon that task may involve careful consideration of the proposal against a range of objectives and requirements of the PSP which are not before the Court on this appeal
5. The Tribunal has not yet considered the broader question. Although it is right to describe the question of 'general accordance' as a jurisdictional threshold, the issues arises in the context of a review proceeding. It is for the Tribunal to determine for itself whether it has jurisdiction, properly instructed that the PSP does not preclude consideration of alternative uses. This leaves for the Tribunal the usual questions of 'fact and degree' about which it must be satisfied. I am not satisfied that the Tribunal has undertaken that task.
6. Accordingly, ground 4 is not made out.

1. At the conclusion of the hearing in this matter there was debate about what orders should be made in the event that the appeal be allowed.
2. Intrapac submitted that this would be a case where, because the Tribunal was answering a stated question of law and there were no contested questions of fact, the Court should answer the preliminary question itself under s 148(7)(b) of the VCAT Act.
3. For the reasons already stated, I do not consider that the conclusions I have reached completely dispose of the preliminary question before the Tribunal.
4. Intrapac submitted that there was nothing which confined the nature of the matters before the Tribunal to legal questions only, and that the full range of issues including factual issues were open for debate before the Tribunal. It is said that in those circumstances the parties, and in particular the Council, should be taken to be bound by the way in which it ran its case below.
5. Having carefully reviewed the stated purpose of the preliminary hearing, the course of written submissions filed in the proceeding and the transcript of the oral argument hearing below, I have come to the conclusion that, however broadly stated the preliminary question was, the Tribunal and the parties were focussed upon and engaged in a constructional debate about whether there was power to consider an alternative use.
6. This Court has found that the Council (and the Tribunal on review) has the power to grant a permit which could change the use of the land in the way contemplated by the proposed development. It is now for the Tribunal to determine the merits of the application for a planning permit.
7. Though the 'general accordance' question is often referred to as a threshold question going to jurisdiction, in most cases, the establishment of jurisdiction is a question of fact and degree - assessed by comparing the proposed development to the plan with which it is required to generally accord.
8. Having dispensed with the Council's initial concern that it did not have power to consider a proposal of this kind on the proper construction of the PSP, it remains for the planning decision maker (here, the Tribunal) to satisfy itself that the proposed development is generally in accordance with the PSP properly construed. In my assessment of this case, that is a question of fact and degree which has not yet been fully addressed below.
9. Irrespective of the positions adopted by the parties here, or at first instance, the Tribunal is the ultimate decision maker, and the one that must be satisfied of the factual basis for a conclusion that the proposal is generally in accordance with the PSP. I would be reluctant in all the circumstances to remit this matter to the Tribunal for a determination on the planning merits in a way which predetermined factual matters the substance of which have not been fully addressed.
10. In most cases, the question of whether a proposal is generally in accordance with the relevant plan is properly to be dealt with as part of a full hearing of the merits of an application_._ An example of such a case is Keymore v Cardinia.[50]
11. Upon remittal, the Tribunal will be required to determine whether or not a planning permit should be granted, including whether there exists a proper factual basis for the conclusion that the proposed alternative use and development can be described as generally in accordance with the PSP, unencumbered by the construction issues which have been resolved by these proceedings.

[1] Intrapac Ellarook Pty Ltd v Wyndham CC [2024] VCAT 499 ('Tribunal Decision'), [123]-[126].

[2] McSteen v Architects Registration Board of Victoria [2018] VSCA 96, 2 [4].

[16] Pursuant to Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

[20] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Commissioner of Police for New South Wales v Eaton [2013] HCA 2; (2013) 252 CLR 1, 32-33 [97] (Gageler J).

[21] [2017] HCA 34; (2017) 262 CLR 362.

[22] Ibid 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

[23] Tabcorp Holdings v Victoria [2016] HCA 4, [65] (The Court).

[24] [1932] HCA 9; (1932) 47 CLR 1.

[25] Ibid, 7 (Gavan Duffy CJ and Dixon J).

[27] Submissions of Wyndham City Council In Response dated 31 January 2025, [22] at CB [705] ('Respondent Submissions').

[28] Mitchell and Whittlesea GC28 (PSA) [2016] PPV 116, 84.

[29] Wyndham North Development Contributions Plan dated September 2024, Part 3.2.12 at CB [788], Part 4.3.5 at CB [796] ('DCP').

[32] Planning and Environment Act 1987 (Vic) s 16.

[33] [2023] VCAT 1039.

[37] Respondent Submissions, [26] at CB [707].

[39] [2017] VCAT 1136.

[42] M.A. Zeltoff Pty Ltd v Stonnington City Council [1998] VSC 270, [26] (Balmford J); Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (The Court); Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379, 388 [36] (McColl JA, Beazley JA agreeing).

[44] Applicant's Submissions dated 20 November 2024, [124] at CB [697] (citation removed).

[45] Council Submissions in respect of Preliminary Hearing dated 24 April 2024, [57]-[58] at CB [451]-[452].

[47] Ibid [37]-[38] at CB [447]; Phenomenal Properties Pty v Melton [2012] VCAT 728, [32].

[48] Intrapac Submissions in respect of Preliminary Hearing [2] at CB [457].

[50] [2016] VCAT 603; see also Canet v Brimbank City Council [2003] VCAT 13; Jocelyn Meadows Pty Ltd v Casey City Council [2004] VCAT 2627; Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489; Tag-Doreen Pty Ltd v Whittlesea CC [2016] VCAT 1705.