Victorian Civil and Administrative Tribunal|2013-05-16

For the reasons set out above, I have basically found the Applicant's case in this proceeding to be more convincing, and I have made the orders sought by the Applicant above.

Beyond the three specific points still in dispute, whilst I was not asked to make any formal findings on the balance of the Revision 2 Development Plan, even a brief review of same confirms that this is a very comprehensive suite of information. I also acknowledge that Mr Robertson's expert planning report provides very detailed evidence in support of the merits of the Revision 2 Development Plan.

[1] See paragraphs 20-22 of his written submission.

[2] The citation for the Casey Gardens decision is [2009] VCAT 2489 at [10].

[3] Relying on the previous decision of Woolworths Pty Ltd v Warrnambool CC [2005] VCAT 2211, where the Tribunal found that issues of interpretation of the Planning Scheme which can at least in part involve questions of law are not properly the subject of expert evidence.

[4] Noting however that some of the new double storey detached dwellings to the east of the review site are rather mansion-like and very visually prominent.

[5] In other words, in a pocket park a person is much less likely to be standing underneath such a tree, in a 'limb drop' situation, where the limbs of the trees in question here could be dangerously heavy.

[6] At page 5 of Mr Robertson's planning report, it is indicated that the provision of this POS represents the Applicant's 5% public open space contribution.

Environment Act 1987

Beachley Street Pty Ltd v Maribyrnong CC [2013] VCAT 766 (16 May 2013)

The main aspect of this is the level of detail and precision in the control. So, for example, in Amber Vision Pty Ltd v Wyndham CC [2007] VCAT 1297 Deputy President Gibson stated:

While it was more part of the 'cut and thrust' of debate, Mr Walker also submitted[1] that:
- In Amber Vision DP Gibson also considered the purpose of a development plan in considering whether "...an application for a permit was generally in accordance with the development plan". Mr Walker argued that this was consistent with the principle that subordinate legislation, such as planning schemes, be interpreted in a practical and common sense way; and
- Canet v Brimbank CC [2003] VCAT 13 at [40] and Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 at [11-12] support the view that there is considerable flexibility in the term "generally in accordance with".
Also helpful is paragraph 17 from Council's written submission, which states as follows (again excluding any footnotes)[2]:

and I accept that the decision of Auswissco Pty Ltd v Maroondah CC [2003] VCAT 1962 at [15] and Environment Victoria Inc. v West Wimmera SC [2004] VCAT 2511 are good precedents for the Applicant on this issue.

Beachley Street Pty Ltd v Maribyrnong CC [2013] VCAT 766

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)

Beachley Street Pty Ltd v Maribyrnong CC [2013] VCAT 766 (16 May 2013)