1. The Tribunal declares that the decision of Melton Shire Council dated 29 November 1999 to approve a Development Plan for the Caroline Springs Community Sporting Club (Restricted Place of Assembly) on the land contained in Certificate of Title volume 9412 folio 526, being land on the north side of the Western Highway and east of Caroline Springs Boulevard, Caroline Springs, was invalid.

2. Costs are reserved. The parties have liberty to make application for an order for costs within one month from the date of this order.

Mr I Pitt of Best Hooper, Lawyers, appeared on behalf of the Applicant.

Mr T Montebello of Maddock Lonie & Chisholm, Lawyers, appeared on behalf of the respondent (responsible authority).

Mr E Stokans, consultant to Russell Kennedy, solicitors, appeared on behalf of Landstrom Holdings Pty Ltd and Delfin Limited (formerly Property Group Ltd) on the first three days. Mr R Osborn QC appeared with Mr Stokans on the last day.

1. This Application was brought by the Applicant, Burnside Properties Pty Ltd, under Section 149B of the Planning and Environment Act 1987 ("the Act") seeking a declaration that a decision of the Melton Shire Council ("the Council") as responsible authority under the Melton Planning Scheme is invalid.

2. The decision in issue is the Council's decision of 29 November 1999 to approve a Development Plan for a "Community Sporting Club" at Caroline Springs pursuant to Clause 43.04 of the Melton Planning Scheme.

3. This decision is referred to by two dates. The date shown in the Application is the date on which the decision of the Council was made; but the actual approval stamp was placed on the document described as Caroline Springs Development Plan - Western Highway Community Sporting Club May 1999 on 3 December 1999, and that date is also used.

4. The dispute to which this Application relates concerns a vacant parcel of land at Caroline Springs, a new suburb of Melton East.

6. The Applicant identified itself in the Application as "the owner and developer of nearby land which includes the site of a planned community activity centre which has been planned and is being developed in reliance on the land use structure in the Melton East Strategy Plan 1997......"

7. The Council as responsible authority is a respondent, as the decision maker whose decision is under challenge. Two other persons were accepted as respondents. These were Landstrom Holdings Pty Ltd, being the owner of the subject land, and Delfin Limited (formerly Delfin Property Group Ltd), a joint venturer with Landstrom in the development of the Caroline Springs estate. A statement of grounds on which these companies intended to rely had been given; and neither the Applicant nor the responsible authority objected to their becoming parties to the Application.

8. It became evident during the hearing that the parties did not distinguish between the interests of the two companies, but identified both with the interest of Delfin Limited. I will refer to "Delfin" to cover both the companies, unless both are referred to separately in the context.

9. By agreement between the responsible authority and the Applicant, the responsible authority presented its case first. Mr Montebello called no witnesses, although he did rely on part of the statement of the evidence of Mr Milner, which had been filed and served along with statements from the other witnesses prior to the hearing, pursuant to directions. He tendered relevant documents, including parts of both the current and former Planning Schemes, the Melton East Strategy Plan, Local Structure Plans, with a commentary on the documents by way of submission, and a formal written submission. The other parties were invited to inform the Tribunal if any of the documents presented in this way were unfamiliar to them, and if they needed to have time to consider any such documents, but they did not find it necessary to take advantage of this opportunity.

10. The Applicant is the owner of a proposed hotel site, for which Permit no.TP11492 has been issued, on the north west corner of the Western Highway and Westwood Drive, well to the east of the subject land.

11. Pursuant to directions, statements of expert evidence were filed and served prior to the hearing. The Applicant relied on the evidence of Mr David Whitney, consultant planner, of Perrott Lyon Mathieson Pty Ltd and Mr T W Biles, consultant planner, of Contour Consultants Australia Pty Ltd.

12. Delfin relied on the evidence of Mr Robert Milner, consultant planner, of Coomes Consulting Group Pty Ltd and Mr Simon V Rumbold of Jebb Holland Dimasi, a consultant in property and market analysis.

13. Mr Rumbold also prepared a second statement, which was filed and served before the fourth hearing day. This contained material specifically about the nature of the facility and why its operator would prefer a highway location. It was accepted subject to Mr Pitt's objection that although the evidence of the planners addressed material taken into account by the Council in reaching its decision, and whether or not its decision was reasonable, there was no justification for accepting Mr Rumbold's second statement. The material was not before the Council at the relevant date.

14. Despite the evidence in chief having been served before the hearing, Mr Stokans applied to have Mr Whitney ordered out during Mr Biles' evidence. Mr Pitt opposed the application on the grounds that this order was rarely given in the case of opinion evidence, and that Mr Stokans' witness had been present during Mr Biles' evidence. The Tribunal rejected the application, on the ground that if Mr Whitney were to modify his opinions as a result of anything he heard during oral evidence, the Tribunal could benefit from his further consideration of the matter.

15. In opening, Mr Pitt described his client's case as depending on the sole ground that the Council, in reaching its decision on 29 November 1999, had failed to take into account something that the Planning Scheme stated must be considered. The planning merits could only be considered on the issue of whether a declaration should be made. He explained that his client had filed material as a basis for showing how it was affected, i.e. as a matter of demonstrating its standing.

16. The other parties did not contest the Applicant's standing. Indeed, Mr Montebello submitted that the Council wished to obtain guidance from the Tribunal with respect to the issue of consistency of the Development Plan with the Melton East Strategy Plan, as it expected that its decision would be challenged one way or another, if not under Section 149B of the Act, then by some other means. However, the debate as to the nature of the proceeding and the extent to which the grounds had been adequately expressed led to amendment of the Applicant's grounds at the commencement of the hearing.

17. Mr Pitt also submitted that Delfin had conceded that its Development Plan was defective, by lodging a new Development Plan (dated March 2000) with the Council. Mr Stokans denied that this was the case, but wished to have reference made to the Amended Development Plan in the amended grounds of Application. After some debate about the wording of the proposed amendment of the Applicant's grounds, however, Mr Stokans agreed that the Tribunal could not deal with a decision that the Council had not yet made as to whether the Amended Development Plan should be approved in the context of this Application.

18. At the end of his client's case, Mr Pitt raised the question of a relationship between one of the football clubs associated with the proposed development and one of the Commissioners who comprised the Council. Commissioner Hyett, who moved that the proposal be approved, had been a director of the Williamstown Football Club. He was still shown as a director in the ASIC search that Mr Pitt had obtained. There was no reference to this relationship in the record of the meeting tendered to the Tribunal. Mr Montebello was able to clarify the situation as at the relevant date by tendering a copy of Mr Hyett's resignation as a director of the Club and its acceptance, dated 28 and 29 June 1999, prior to either of the meetings at which this proposal was considered by the Commissioners. The letter of resignation included a statement that Mr Hyett now considered it appropriate to put his energies into assisting football at a Regional level.

19. I indicated that I did not consider this a matter relevant to the present Application. There has been no attempt to vitiate the Council's decision on the ground that the decision itself was bad under the Local Government Act 1989, or that there was bad faith or an ulterior purpose.

20. Caroline Springs is a major residential development situated on the northern side of the Western Highway, in the area between Westwood Drive and Clarke Road, forming a new locality in what was formerly part of Rockbank. The new residential estate immediately to the east of Caroline Springs is now known as "Burnside". Both Caroline Springs and Burnside are suburbs within the area described in the Planning Scheme as Melton East. Both are very substantial developments, with an impressive array of incidental community and commercial facilities, either already in place or included in the plans. Caroline Springs, however, still has a large site on the Highway the future of which the owner hoped to resolve by the approval of the Development Plan to which this Application relates.

21. Mr Milner, who gave evidence on behalf of Delfin, stated that the Caroline Springs project has been comprehensively planned, and will be the largest "planned" community in Melbourne. He described the development as taking place within the framework of a Caroline Springs Strategy Plan lodged with the Council in November 1997, and a Local Structure Plan for the Southern Neighbourhood of Caroline Springs approved by the responsible authority in November 1997. He stated that the Local Structure Plan did not address proposed Activity Centres. The Melton East Strategy Plan does.

22. The Caroline Springs estate, as described on behalf of Delfin, is to have within two years of commencement, 500 homes occupied by 1,200 people; 8 local and village parks; a 600 sq.m. shop and petrol filling station; 4 hectares of lakes; 3 primary schools with 250 students; a multi-media centre/library; a sport and recreation centre, children's services and childcare centre; and two bus services. It is apparent from the photographs tendered by the parties that there are already numerous occupied homes, and Mowbray College has a substantial school already completed and operating.

23. Caroline Springs is entered off the Western Highway by way of Caroline Springs Boulevard, a broad road laid out with a central tree plantation separating the traffic lanes, and nature strips on both sides. The entry point intersection is signalised. An entry feature identifies the estate by name. There is no other direct access point from the highway, according to the layout plan; all dwellings are accessed off the Boulevard by a series of local and collector streets, so that the houses nearest the Highway will front onto cul de sacs, turning their backs to the Highway, even where they have a double frontage.

24. Stage 1 of Caroline Springs includes three residential "villages" and some commercial and community facilities. Mr Milner described the location of the Burnside Activity Centre to the east of Caroline Springs, adjacent to the intersection of the Western Highway and Westwood Drive, which is one of three community Activity Centres planned for Melton East. The Burnside Activity Centre was approved by Council in February 1998, and comprises 8.8 hectares of retail, non-retail, peripheral sales, sporting facilities and so on. Mr Milner also referred to a small neighbourhood centre known as the Brookside Centre based on education and recreation facilities, established on the corner of Caroline Springs Boulevard and Rockbank Middle Road North, to the north of the subject land.

25. On the west side of Caroline Springs Boulevard is a grassed reserve with a lake. On the east side is a site for which approval has been given to a convenience store, petrol station, associated car parking, and a small Country Fire Authority depot. Work had recently commenced on the convenience store site. The next adjoining parcel to the east from that site is the subject land

26. The dispute has arisen by virtue of the Planning Scheme controls which deal with the development of Melton East, including Caroline Springs. They envisage that development will be controlled not by means of a requirement for a permit alone, but through consistency with a "Development Plan". This is a term which is not defined in either the Act or the Planning Scheme. The Victoria Planning Provisions format Planning Scheme, however, makes provision for a "Development Plan Overlay" to be adopted as one of the Overlays which provide an additional layer of control in addition to the provisions of the zone affecting the land: see Clause 41 of the Planning Scheme.

27. The subject land is located in a Residential 1 Zone. Western Highway is in a Road Zone Category 1. To the west of Westwood Drive, fronting the Highway beyond the Caroline Springs property, is a Mixed Use Zone, with a Business 1 Zone directly to its north on the west side of Westwood Drive. This is now the Westwood Drive Activity Centre. The Development Plan Overlay covers all the land to the north of the highway and west of Westwood Drive in the zones to which I have referred. Land to the south of the Highway is zoned Industrial 1.

28. The Melton Planning Scheme is a Victoria Planning Provisions format scheme; but a similar provision also applied in the Planning Scheme which the current scheme replaced.

29. The Council has treated the proposed use as a "Restricted Place of Assembly" under the Table of Uses. This is defined in the scheme as:

"Land used by members of a club or group, or by members' guests, for religious or cultural activities, entertainment, or meetings. It may include food and drink for consumption on the premises, and gaming."

30. Messrs Whitney and Biles accepted the "Restricted Place of Assembly" characterisation in their evidence.

31. The application for approval of the Development Plan emphasised that what was proposed was a "community" sporting club. Council resolved to approve it as a "Community sporting club (Restricted Place of Assembly)", referring both to how Delfin described the proposal, and how Council had characterised it under the Planning Scheme. Mr Montebello argued, consistently with the formal characterisation, that what was proposed is an entertainment use. Entertainment can serve a community function.

32. A "Restricted place of assembly" falls within the "Leisure and recreation group" of uses in the "nesting diagrams" in Clause 75 of the Planning Scheme. However, certain aspects of the overall proposal fall into the "Retail premises group". These are all the aspects which are within the definition of "food and drink premises", which includes hotel, restaurant and tavern. "Tavern" is defined as:

"Land used to sell liquor for consumption on the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling."

33. This appears to cover many of the activities intended. It differs from a "hotel" as defined by the ability of a hotel to sell liquor for consumption off the premises. "Hotel" is defined as:

"Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling."

34. "Gaming premises" is a use included in its own right in the "Retail premises group", as well as coming in as part of a Tavern or a Hotel.

35. It is these aspects of the proposal that appear to be the most important part of it, rather than the "function centre" aspect. Nor does the connection with football clubs seem to be an issue in determining the proper characterisation of the nature of the land use, as they would not be conducting any sporting activities there. The reference to "elite sporting clubs" is not intended to limit the use of the facilities to members of such clubs, but to make use of the club name to attract commercial patronage.

36. Mr Pitt also drew attention to the need for a permit under Clause 32.01-2 for "Food and Drink Premises" (which is defined to include both hotel and restaurant uses), and under Clause 51.27 for use to sell or consume liquor where a licence is required under the Liquor Control Act 1987.

37. Under Clause 52.28-1, no permit is required to install and use a gaming machine in a restricted area if that area does not exceed 25 per cent of the gross floor area of the premises where liquor may be consumed. Under Clause 52.28-4, no permit is required to install and use a gaming machine in an unrestricted area. Both provisions are subject to a number of qualifications.

38. It is common ground that this proposal would be a Section 2 use in the zone, needing a permit under Clause 32.01-1 of the Planning Scheme. It also needs a permit for the construction of a building for a Section 2 use: Clause 32.01-5.

39. But the issues here are not directly related to the grant of a permit; they are limited to the approval of a Development Plan for land including the subject land.

40. Clause 43.04 contains the provisions of the Development Plan Overlay. As the Applicant has challenged the validity of the decision on broad grounds, encompassing the entire Clause and the relevant Schedule, I will set out the Clause in full (save for the title and identification reference and the Notes), in the form in which the parties addressed it for the purposes of this Application, together with Schedule 1, which is the relevant Schedule to the clause. Clause 43.04 provides as follows:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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.

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

43.04-1 Requirement before a permit is granted

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority.

· Be generally in accordance with the development plan.

· Include any conditions or requirements specified in a schedule to this overlay.

An application under any provision to this scheme which is generally in accordance with the development plan is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the appeal rights of Section 82(1) of the Act.

The development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages.

· The proposed use and development of each part of the land.

· Any other requirements specified for the plan in a schedule to this overlay.

The development plan may be amended to the satisfaction of the responsible authority.

41. The Notes referred only to the State Planning Policy Framework and the Local Planning Policy Framework. Relevant local policies and strategies must therefore be found in Local Planning Policy Framework. There are a number of them, to which I shall return.

Prior to the issue of a planning permit for any use or development, a Development Plan must be prepared to the satisfaction of the Responsible Authority.

· Detailed plans of sub areas within the plan as well as supporting documentation which assists to clarify the nature of development proposed.

· The relationship of the land to existing or proposed land uses on adjoining land.

· The proposed subdivision lot layout, the road network, pedestrian and bicycle network and open space and drainage reserves.

· The layout of any proposed Activity Centre.

· The proposed land uses for sub areas within the locality.

· The location of all vehicle and pedestrian access ways within, to and from the development.

· The location and layout of all car parking areas, loading bays and access to and from these areas.

· Details of all landscaping development proposed, including the types and species of plants and any arrangements for the maintenance of the landscaping after it has been established.

· The management of vegetation to minimise fire hazard and to ensure the safety or people and property.

· The stages (if any) by which the development of the land is proposed to proceed.

Before deciding to approve a Development Plan, the responsible authority must consider:

· The existing and possible future development and use of the land and of contiguous or adjacent land.

· The need for appropriate setbacks from residential areas.

· The provision of water, sewerage, drainage and electricity services.

· The orderly planning of the zone, including the management of traffic, the provision of pedestrian ways and open space.

· The need for financial or other contributions towards the provision of reticulated service infrastructure, community and social facilities and services, transport infrastructure and services.

· The provisions of the Melton East Strategy Plan and municipal planning policy. [emphasis addded]

43. Clause 43.04-1 does not create any new permit requirements within the Planning Scheme; it only applies if a permit is required. Whether or not that is the case depends on the zone provisions (or the provisions of any other relevant overlay). The same applies to Schedule 1.

44. The significance of the Development Plan, as far as the Applicant is concerned, lies in the following -

· The form and conditions of future use and development are supposed to be shown on an approved development plan before a permit can be granted to use or develop the land; and

· Once a Development Plan has been approved, a permit application which is generally in accordance with it will be exempt from notice of a permit application (Section 52(1)(a), (b) and (d)), notice of the responsible authority's decision (Section 64(1), (2) and (3), and also from the right of an objector to review the responsible authority's decision to grant a permit (Section 82(1) of the Act).

45. Under a VPP format Planning Scheme, the reference to an "incorporated plan" calls up Clause 81. This provides:

"The documents listed in the schedule to this clause are incorporated documents under section 6(2)(j) of the Planning and Environment Act 1987. These documents are of local application.

If a document is not included in the table or the schedule, it is not an incorporated document."

46. The Development Plan is not an "incorporated plan" listed in Clause 81 of the Planning Scheme. The Manual for the Victoria Planning Provisions published by the Department of Infrastructure for the guidance of (among others) Councils as Planning Authorities preparing their VPP format Planning Schemes, states (at p.43) that "If the plan contains specific requirements which affect whether or not a permit is required, it should generally be an incorporated plan." The development plans to which Schedule 1 applies do not affect whether or not a permit is required, so strictly speaking, do not fall within that guideline. Other development plans in other schedules may work differently.

47. Nor is Schedule 1 a Schedule in which it is stated that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority. On the contrary, it reiterates the need for a Development Plan to be prepared to the satisfaction of the responsible authority before a permit may be issued.

48. The "purposes" may assist in interpretation, but they do not change the permit and approval requirements. The operative part of Clause 43.04 is that a permit must not be granted until a development plan has been prepared to the satisfaction of the responsible authority. It is the Council's approval of the development plan that opens the way to the issue of a permit. Once the development plan has been approved, the exemptions from third party rights apply, and the reference in the "purpose" clause to exemptions related to "an incorporated plan" cannot alter the fact that the exemption clause itself refers only to "the development plan", without any requirement that it be incorporated.

49. The issue in this Application is therefore related to the power of the Council to issue a permit for the proposal, and to the exemptions from third party rights that would normally attend a permit application under the Act, potentially affecting the rights of the Applicant as owner of a rival site, or a site that could be used for at least some of the elements included in Delfin's development proposal, and in a more general way, as the owner of a large estate with a Western Highway frontage in close proximity to the subject land.

50. Prior to the hearing, further and better particulars of Ground 1 were provided. At the hearing, the Tribunal amended the grounds on which the Application had been brought by the addition of a third ground, at the request of Mr Pitt, who appeared for the Applicant. Mr Montebello and Mr Stokans, who appeared respectively for the respondent responsible authority and the two companies comprising "Delfin" (Landstrom Holdings Pty Ltd and Delfin Limited) consented to the amendment. The grounds are now:

1. The said Development Plan does not contain the matters which a development plan must show pursuant to Clause 1.0 in Schedule 1 to the Development Plan Overlay applying to the land.

1.1.1 The development plan does not detail plans of sub-areas within the plan as well as supporting documentation which assists to clarify the nature of the development proposed.

1.1.2 The only detail provided is a textual description of the nature of the use.

1.2 Beyond showing the juxtaposition of various components (without detailing the relationship) the documentation does not show the relationship of the land to existing or proposed uses on adjoining land.

1.3 The plan gives no indication of pedestrian or bicycle networks or access.

1.4 The justification of the proposal includes reference to other proposed or permitted commercial facilities which would constitute components of an Activity Centre but the plan does not show any layout of the overall Activity Centre.

1.5 The proposal does not show the location of vehicle and pedestrian accessways within, to and from the development.

1.6 The proposal does not show the location and layout of all car parking areas, loading bays and access to and from these areas.

1.7 The proposal does not show details of all landscaping development proposed, including the type of species of plants and any arrangement for the maintenance of landscaping after it has been established.

1.8 The proposal does not show the management of vegetation to minimise fire hazard and to ensure the safety of people and property.

1.9 The proposal does not show the Stages by which the development of the land us proposed to proceed.

2. Burnside Properties Pty Ltd is the owner and developer of nearby land which includes the site of a planned community activity centre which has been planned and in being developed in reliance on the land use structure in the Melton East Strategy Plan 1997 which specifies the location of activities centres at different hierarchical roles including centres on land forming part of the Caroline Springs development but not in the location the subject of the Development Plan for the Community Sporting Club at Caroline Springs purportedly approved by the Council on 29 November 1999.

3. That the responsible authority, taking into account all relevant considerations and disregarding all irrelevant considerations, could not, having regard to the provisions of the Melton Planning Scheme, validly have approved the "Caroline Springs Community Sporting Club Development Plan".

51. The Council contested the Application on the grounds of which notice had been given by letter dated 6 March 1999, not seeking to amend in response to the Applicant's amendment. But its notice of grounds did include a general statement of disagreement with the further and better particulars of Ground 1 of the Application, as well as:

· The approved development plan is within the framework established by the Melton East Strategy Plan.

· The Melton East Strategy Plan does not set in stone the precise course of the future development of the large area to which it applies.

· The information contained in the development plan as approved satisfies the provisions of the relevant schedule of the Melton Planning Scheme.

· The development of the land as proposed is justified by regard to a detailed consideration of the strategic land use issues that arise.

· The applicant's motivations in seeking the determination are based more on maintaining a competitive advantage in respect of its proposed development of adjacent land than on achieving desirable strategic outcomes.

· The level of detail provided in the development plan is sufficient or will be provided by reference to Condition 1 of the development plan approval. (deleted 3/4/00).

· Whatever information is allegedly not provided is not of such a nature as would be of any real relevance to the Applicant (Burnside).

· The mechanism by which review of the decision has been sought is an inappropriate mechanism given the nature of the decision and the manner in which third party review rights have been sought to be limited by the Melton Planning Scheme.

52. The grounds on which Delfin and Landstom both relied, by leave granted on 9 February 2000 (and omitting the request for further and better particulars contained in its notice) were:

1. The development plan satisfies the requirements of Clause 1 in Schedule 1 to the Development Plan Overlay insofar as it is relevant.

2. The Caroline Springs Development Plan is consistent with the goals and objectives of the Melton East Strategy Plan in that it will:

· Provide a range of benefits in keeping with the extent of the area and its potential future population;

· Provide opportunities for employment generating use in an appropriate location;

· Provide a structure which allows equitable accessibility of residents to community facilities, employment and services;

· Promote economic development, employment opportunities and self sufficiency by seeking to meet the social, economic , recreational and cultural needs of the community;

· Result in the timely provision of recreation facilities for present and future inhabitants of Caroline Springs.

3. The Development Plan is consistent with State government policy as expressed in Living Suburbs, Retail Development Policy and Clause 17.01-2 of the Victoria Planning Provisions.

4. The Melton East Strategy Plan is a strategic document, not a prescriptive control which contemplates alternative structures provided that the overall goals and objectives of the Melton East Strategy Plan are met.

5. The Melton East Strategy Plan does not prescribe what type of development is desired on properties abutting the Western Highway.

6. The proposed community sporting club will complement the existing retail activities on Western Highway and provide a community benefit for the emerging population at Caroline Springs.

7. The proposal will provide a community benefit by providing a buffer between the Western Highway and residential development to the north.

8. At best the proposed development will amount to a neighbourhood activity centre and as such will compete with the Burnside Community Activity Centre in the retail hierarchy.

9. The proposal will provide a net community benefit.

10. The application is a thinly veiled commercial objection.

53. It can be seen that Delfin wished to address the merits of its proposal. Insofar as this material addresses the considerations properly available to the Council in making its decision to approve the Development Plan, it is taken to address Ground 3 of the Applicant's grounds. Beyond that, material related to the merits of the proposal is taken to be directed primarily at the exercise of the Tribunal's discretion whether to grant a declaration or not, if the decision which is the subject of the Application is found to be invalid.

54. In opening the case for Delfin, despite the range of matters included in its statement of grounds, Mr Osborn put the fundamental issue as "whether it was open to Council to approve the development plan". He submitted that the Applicant had to show that the responsible authority had not acted according to law. Mr Osborn submitted that the substance of the Applicant's argument raised issues of both form and substance.

55. By the time the evidence had been completed, Mr Pitt and Mr Osborn were able to agree that the essential issues were whether it was open to the Council to make the decision it did, and whether the document before it could be characterised as a Development Plan at all.

56. Section 149B of the Act provides as follows:

(1) A person may apply to the Tribunal for a declaration concerning--

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

(2) On an application under sub-section (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.

(3) The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.

57. The grounds on which the exercise of a discretionary power of approval by the Council acting as responsible authority in applications made under the Act could be successfully challenged were stated by Ashley J in Kantor v Murrindindi (1997) 18 AATR 285 at 308-9, and may be summarised as:

· the decision was not one which a responsible authority acting reasonably could have made;

· In making the decision, the responsible authority had taken irrelevant matters into account;

· The responsible authority had failed to take relevant matters into account;

· In determining what matters were relevant, the judgment of Mason J in Minister for Aboriginal Affairs & Anor v Peko-Wallsend & Ors [1986] HCA 40; (1985-1986) 162 CLR 24 at 39-42, gave the proper approach. The factors which may be taken into account in exercising an unconfined discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

58. "Reasonableness" is determined on the "Wednesbury" test: see Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 by Gibbs J at 328:

"Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at pp 228-229 and 233-234."

59. An Application under Section 149B is not subject to the same restrictions as to the interest of the applicant in the subject land as an Application under Sections 149 and 149A, under which only a "specified person" as defined in Section 148 may apply.

60. It is, however, subject to the restriction that only a presidential member may exercise the Tribunal's power. The Tribunal was originally constituted to include Mrs Baird, who is a qualified and experienced planner but not a presidential member. After some discussion as to possible ways to retain the benefit of Mrs Baird's expertise, the attempt was abandoned and she retired.

61. Tribunals such as this one, established by legislation the model for which was originally the Commonwealth Administrative Appeals Tribunal, are "obliged by statute, when reviewing a primary administrative decision, to be satisfied whether or not that decision was, on the material before the Tribunal, the correct or preferable one": see Transport Accident Commission v Bausch [1998] 4 VR 249 per Tadgell JA at 263, and the cases there referred to.

62. But this Application invites the Tribunal to find not that the Council's decision to approve the development plans was wrong on the merits, but that it is invalid. The limitations on the remedy available to the Applicant under Section 149B mean that instead of the Tribunal reviewing the application for approval on the basis of the evidence before it and making the "correct or preferable decision" on that evidence, the Tribunal is required to consider the legal adequacy of the decision making process.

63. The evidence before the Council when it made its decision will in most circumstances be the relevant material on which to determine whether the decision was or was not invalid. There is an exception to this rule, in that where it is necessary for the Tribunal to make a finding on whether the Council erred as to the jurisdictional facts, the Tribunal must answer the question on the evidence before it, rather than the evidence before the Council: Enfield v DAC [2000] HCA 5; (2000) 106 LGERA 419 at 428, 433 and (per Gaudron J) 439.

64. The nature of the jurisdiction exercised by the Tribunal under Section 149B of the Act was described by Deputy President Macnamara in Castik Investments Pty Ltd v City of Stonnington (1999) 3 VPR 46 (at 54) as follows:

"A somewhat more extended form of the declaratory power is now to be found in Section 149B of the Planning and Environment Act 1987 bestowing the jurisdiction upon this Tribunal. There is a similar jurisdiction to be found in Section 185AA of the Local Government Act 1989 empowering the Tribunal to make declarations as to the validity of special rate and special charge schemes. ......... In their form they represent the declaration of existing legal rights, not a process of merits review at all. The history of these provisions demonstrates that they were intended to move determinations of legal right in planning matters to the relevant planning tribunal rather than the courts. That is, the provisions are concerned solely with issues of venue not to change the substantive law against which rights were to be determined."

65. Deputy President Macnamara said of the contrast between the administrative review and the declaration proceedings in Castik Investments Pty Ltd v City of Stonnington (at 54):

"This form of review stands in contrast to judicial review which has been provided historically by means of superior courts' general declaratory and injunctive powers and under the prerogative writs and now at Commonwealth and State level under special statutes such as the Administrative Decisions (Judicial Review) Act of the Commonwealth. A judicial review does not focus upon the merits of the decision but rather whether the decision-maker has misdirected himself in law, acted without jurisdiction or in excess of jurisdiction etc....."

66. Strictly speaking, the form of remedy available by way of declaration in the Supreme Court that has been transferred to this Tribunal by Section 149B is not "judicial review", but one of the equitable remedies available to restrain apprehended breaches of the law and to declare rights and obligations under the law. The joint judgment of the majority of the High Court makes this distinction and refers to the role of the declaration, together with the injunction, in the development of modern administrative law in Enfield v DAC [2000] HCA 5; (2000) 106 LGERA 419 at 427; [2000] HCA 5. This correction of the description of the remedy does not alter the test to be applied to determine the validity of the decision.

67. The wide discretion available to the Court with respect to the equitable remedy of the declaration has also been made available to the Tribunal. In considering whether a declaration would be appropriate in the circumstances, the Tribunal is governed by its general duty under Section 97 of the Victorian Civil and Administrative Tribunal Act 1998, which provides that "The Tribunal must act fairly and according to the substantial merits of the case in all proceedings." This does not mean "review the case on its merits" in the sense of applying the principles of administrative review to every proceeding, but to act according to the substantial merits of the case rather than being limited by forms and technicalities, whatever the type of proceeding.

68. It follows from the nature of the proceeding that the law applied to determine an Application for a declaration under Section 149B of the Act is not the law as it stands at the date the Tribunal reaches its decision, which is a hallmark of the review jurisdiction; but the law as it stood when the decision was made.

69. Two changes have been made since the decision which is the subject of this Application. As already mentioned, a new "Amended Development Plan" for the Western Highway Community Sporting Club, dated 27 March 2000 was delivered to the Council by Delfin, and copies were given to the other parties before the hearing. The Tribunal has dealt with the Application on the basis of the Development Plan as it stood when the Council approved it, not the Amended Development Plan.

70. Second, a change has been made to the text of the "purpose" clause for the Development Plan Overlay. The last paragraph of the purpose has been changed, and no longer refers to an "incorporated" plan. This change has occurred since the end of the hearing, and has been disregarded.

71. A brief description was contained on p.1 of the "Caroline Springs Development Plan -Western Highway Community Sporting Club" document prepared by Delfin for submission to the responsible authority, and dated May 1999. This states:

"The land will be used for a Community Sporting Club. It is currently intended that this community facility will be jointly formed by the Western Bulldogs and Western Jets Football Clubs. A community fund will be set up to be financed from profits generated from club activities on this site.

The club will include a range of high quality food and beverage facilities plus function rooms as well as some gaming facilities (under 25% of proposed licensed floor area). The proposed use will be detailed further at the development plan stage, as required by the Melton Planning Scheme.

A detailed description of the proposed Community Sporting Club is provided in the accompanying MacroPlan Report."

72. The MacroPlan Report was attached to the Development Plan submission. It added the following general description:

"The facility will be located on 1 hectare of land, adjacent to the proposed supermarket and petrol filling station and will consist of a club/sports bar, function area, bistro/restaurant, extensive garden area, gaming area and Tabaret. The Community Sporting Club will be managed by a joint partnership between the Western Bulldogs (AFL), Western Jets (VFL) and Williamstown Football Club (VFL)."

73. Further details (which were relied on by Mr Montebello in his submission) were then set out (pp 3-4):

· A building area of approximately 1,750 sq.m. on 1 hectare.

· Function and conference area for 400 patrons with "break out" rooms.

· Gaming room with 150 sets and 105 machines being less than 25% of the area of the facility.

74. It can be seen that although this proposed facility is associated with sporting clubs, no actual sport will take place on the proposed site. A substantial function and conference facility is included, apparently without any intended limitation to sporting-related activities. There is some limited provision for children's playing areas; but there will also be substantial areas where children will not be able to go, associated with gaming and liquor licensing restrictions. The emphasis of the proposal appears to be on functions, food and gaming, on a large scale. The first Council officer's report dated 12 August 1999 also referred to a community fund, which would be financed from profits generated by the club activities. It is not stated whether this fund was proposed to be anything more than the (State government) Community Support Fund that would be fed by gaming revenues under Section 138 of the Gaming Machine Control Act 1991.

75. Further information contained in the MacroPlan report (at p.4) reveals that it is proposed that the Western Bulldogs, the Western Jets and Williamstown football clubs would be joint partners in an equal agreement to provide the "sporting" facility. It is stated that this is -

"........ a unique opportunity to harness the benefits of the site within the future area of Melbourne and within the western regional zone of the AFL and VFL."

76. The report also states that this joint agreement would -

".... ... provide a community sporting facility providing community benefit to Caroline Springs and at a broader level throughout the western metropolitan area."

77. Reference is also made to the substantial membership base in the western region for both Australian and Victorian Football Leagues; and that the site is centrally located in the Leagues' regional zone.

78. The siting of the proposal is explained (at p.5 of the MacroPlan report) as follows:

"The siting of the sporting club on the Western Highway is crucial in terms of commercial viability. The Clubs consider the major benefits of the site as follows:

1. the highway exposure offers visibility to the venue as a social/function facility.

2. The location allows identification and profiling of the AFL and VFL which is considered crucial for elite sporting clubs.

3. A commercial facility of this size could only be developed on a high profile site.

4. The facility is not surrounded by residential properties, which minimised any potential detrimental impact on residents."

79. This recognises that the proposed use is a substantial commercial facility, which will seek to draw patronage from the region. In my view, this is a more realistic characterisation of what is proposed than attempting to justify it as a local "community" use, even though some members of the local community will no doubt wish to go there. It is quite plain that the last thing Delfin wants is to locate this use within the estate; it is expressly stated that the Western Highway frontage is crucial.

80. Delfin submitted that the proposal was not intended to be a substitute for the non-commercial community facilities that would be provided as part of the Caroline Springs development. It would provide an opportunity for early provision of a quality restaurant/bistro, functions rooms, employment opportunities, gaming, and a "sporting focus" within the area. This "sporting focus" would be provided by way of football club facilities at Brookside, for a club such as the Western Jets to train. Brookside is situated to the north of the subject land, in a more central location within Caroline Springs, and has a community centre in which the three schools and formal playing fields are to be located.

81. This development is not, therefore, to be considered as the sport and recreation centre listed as part of the facilities to be provided at Caroline Springs within two years of commencement. The Community Sporting Club is primarily intended to serve a catchment wider than Caroline Springs or even the Melton community; it is not a sporting venture, nor a club in the restrictive sense that there would be a selective membership process excluding people who wished to enter; but in view of the degree of detail that was presented to the Council before it made its decision, I do not consider that there was any possibility that it was misled about the nature of the development it had been asked to approve.

82. The reference to the absence of residential properties requires qualification. When the proposal was submitted to the Council, the neighbouring uses were shown as follows on the Development Plan:

South - Western Highway, with Industrial (IN3) on the south side of the highway.

83. The Development Plan submission was initially the subject of a negative report by a planning officer. This report, dated 12 August 1999, was tendered by Mr Montebello. The Council (comprised by the Commissioners) adjourned consideration of the proposal to enable discussions to be held with Delfin and objectors. As a result, changes were made to the proposal. These are shown in the bold print below:

South - Western Highway, with Industrial (IN3) on the south side of the highway.

West - supermarket and petrol station (the supermarket also being recognised as a large "convenience store" for some purposes, such as the application for approval of it).

84. The only real difference between the proposals is that instead of a possibility of commercial development to the east of the subject land, stretching towards another commercial development further to the east down the highway, the subject land was separated from other commercial land to its east by a residential development, which is under construction at present. As all the land in both the subject site and the site to the east of it was zoned Residential 1, no change of zoning was in question; only the future use designation on the Development Plan.

85. This change fulfils the Council's objective of preventing ribbon commercial development along the highway. At the same time, it places Residential development on two sides of the subject land, which is a disadvantage as far as the "siting advantages" identified by the report are concerned.

86. The other major objections to the proposal that were originally identified by the Council were that -

· the site failed the Land Use objectives of the Melton East Strategy Plan by failing to provide a structure which allows equitable accessibility of residents to community facilities, employment, services.... and

· the proposed development is sited in a location that is inconsistent with the adopted principles of the Melton East Strategy Plan. The use would be more appropriately located within the Town Centre on the estate, not on the edge of the development in an area that is not a defined Activity Centre.

87. The proposal was seen as a serious deviation from the Melton East Strategy Plan and the Municipal Strategic Statement. The Development Plan was considered to have failed to provide a comprehensive justification for an alternative land use structure. The development was therefore inconsistent with planning policy and did not warrant Council approval. The Council officer reporting on the proposal recommended that Delfin be advised that the Council would be more likely to support such a facility in the Town Centre, where such large scale commercial operations would naturally complement other higher order retail and community functions.

88. In both versions of the proposal, the actual plan illustrating the proposal and surrounding land uses is called an "Indicative Site Plan". The Development Plan can comprise both plans and other documents: Clause 43.04-3.

89. This plan was the subject of much criticism. In the form presented to the Council on each occasion, it was accompanied by other plans, so that its context was clearer than it would have been if it had stood alone. The contents list for the Development Plan shows that a sales brochure accompanied this site plan on submission to the Council. Copies of a locality map and the sales brochure were attached to the officer's reports, together with the Land Use Structure plan and Indicative Activity Centre Framework plan from the Melton East Strategy Plan. I will try to describe what the two versions of the Indicative Site Plan did contain, as well as some of the things they did not (which are described in the respondents' statements of grounds, but were elaborated at the hearing).

90. Both versions of the Indicative Site Plan were A4 sheets, showing the northern boundary of the Western Highway as the southern boundary of the plan. The intersection with Caroline Springs Boulevard was not shown, so that reference to the Locality Map, which was very small scale and did not identify the Boulevard very clearly, or to the sales brochure (which is a more detailed locality plan of the southern part of the Caroline Springs site and immediate surrounds), was necessary to identify where the subject land was. The copy of the sales brochure attached to the officer's reports was also very small scale and hard to read, but major features were sufficiently plain for the location of the subject land to be identified with confidence. The copies of these two plans actually submitted may have been clearer than the ones reproduced in reduced form in the officer's reports. But the Indicative Site Plan itself was not reduced for this purpose (the plan attached to the Development Plan proposal being available for comparison in the copy tendered, whereas copies of the other plans as submitted were not).

91. Having worked out from the other plans where the subject land was, it is possible to return to the Indicative Site Plan. This was variously described in evidence as a block plan or a bubble plan. Western Highway obliquely crosses the page from east to west. The subject land is centred on it, with part of the two adjoining parcels filling the rest of the width of the page. To the east is the site that is shown as "Commercial or Residential" in the first version, and merely "Residential" in the approved version. To the west is a site shown as "existing commercial" on the original version, and "Proposed petrol filling station/convenience store" on the approved version. Both versions show arrows with the words "access and egress via service road" at the boundary point between the subject land and the site to the west of it, and also at the boundary point with the site to the east. They do not indicate the service road over the western site or to the Highway boundary so as to connect it to either Western Highway or Caroline Springs Boulevard, but both show a strip containing a lozenge shape with the words "service road" and "car park", and an indication of trees on the southern boundary, along the whole width of the southern section of the subject land.

92. The sales brochure plan does not show a service road over the western commercial site either, nor a service road connecting to Western Highway. A road connection is shown coming off Caroline Springs Boulevard to the north boundary of the western site. Along the Western Highway frontage, the sales brochure shows a line of trees across both sites. Both sites, plus the "Residential" site to the east are labelled "Proposed commercial development and initial community facilities" on both versions of the sales brochure. A more up to date brochure, at a better size, was tendered to assist in interpreting these reduced and rather blurry versions of the brochure, and also to demonstrate progress with the overall estate. As far as I have been made aware, there has been no approved plan that committed the subject land in any way to "initial community facilities", although the convenience shop and petrol station on the western site will fulfil a community need.

93. Further documentation, in the form of Amendment 1 to the Local Structure Plan for Caroline Springs Southern Neighbourhood - Proposed Display Village Locations, certified 30 March 1999, illustrated that approval had been given to quite a detailed road layout for the western commercial site, with provision for a link from a service road to the subject land, long before either version of this Development Plan was considered by the Council. Not only did Delfin not make use of this approved layout in its sales brochure/locality plan, it did not use it to illustrate road connections in the Indicative Site Plan.

94. To the north of the road and parking lozenge, the subject land is broken up into further lozenges. The central one was labelled "building (up to 2000 sq.m.)." To each side of this there was a "car park" lozenge stretching from the service road boundary to close to the northern boundary, and extending beyond the northern boundary of the "building" site. Between the northern ends of the two "car parks" and lying to the north of the building site was a "landscaped area". A fringe of vegetation symbols appeared on both the east and western boundaries of the site, with a thicker, labelled "landscaped buffer" along the northern boundary. Like the service road/car park, these features were the same in both versions of the Indicative Site Plan.

95. There is no indication how the internal road layout and car park areas are to be laid out and connected. Nor is it clear how much of the southern service road/car park is to be service road, and how much car park.

96. To the north of the subject land, the page is filled with "indicative" "existing residential" lots. Five of these back onto the subject land and front to an east-west road called "Windsor Gardens". Part of a sixth adjoining lot lies with its long side boundary between the subject land and a cul de sac off Windsor Gardens. The connection between this road and the road system does not appear on the Indicative Site Plan, but does on the sales brochure.

97. I note that in the plan certified as Structure Plan was endorsed on 20 March 1999 as Amendment 1 to the Southern Neighbourhood Local Structure Plan for Caroline Springs, which shows a "proposed commercial development" in the location next to the corner site, in the place now the subject land, the rear boundary has been extended, is no longer a straight line, and is abutted by seven traditional house lots and four small sites.

98. To the north of Windsor Gardens, two large blocks are shown, with what appear to be three house site sized lots at the west side of the page, north of the corner site. On the sales brochure, the largest of the sites to the north is shown as a landscaped playground. The commercial site also appears quite a lot larger than in the subject Development Plan in comparison to the size of the playground to its north in Amendment 1 to the Southern Neighbourhood Local Structure Plan.

99. When Delfin already had available a very detailed "sales brochure" plan, on which it relied to give the location of the subject land, and in part connect it to the surrounding road system, it is difficult to see why it did not use it as a base for the Development Plan. However, the Indicative Site Plan did indicate that there was existing residential land immediately to the north of the subject land, and that no road or bicycle connection from the north or east to the subject land was proposed.

100. The commencement date of the new scheme was 29 July 1999. Although the application started out under the old Planning Scheme, both officers' reports and the approval given to the Development Plan on 3 December 1999 were given under the new, current Melton Planning Scheme.

101. The parties tendered copies of the relevant extracts from the Planning Scheme and referred to them extensively, as did the witnesses. There was a high degree of consistency between the witnesses as to which policies were relevant, although not necessarily as to whether they had been complied with. I will set out fairly comprehensive extracts, without including every policy that was mentioned, but including some context around some paragraphs that were expressly referred to. I have already set out the relevant part of the Municipal Strategic Statement.

102. The main relevant State policies appear in Clauses 14 and 17. The "General Implementation" clause for Metropolitan Development, Clause 14.02-2, includes:

"Major suburban retail, commercial, administrative, health, education, entertainment and cultural developments should be concentrated in and around activity centres with good access to integrated transport nodes."

103. Clause 17 contains the Economic Development policy. Clause 17.01 deals with Activity Centres. The relevant objective, at Clause 17.01-1, is:

"To encourage the concentration of major retail, commercial, administrative, entertainment and cultural developments into activity centres (including strip shopping centres) which provide a variety of land uses and are highly accessible to the community."

104. Under 17.01-2 General implementation, the policy states:

· Provide a range of shopping facilities in locations which are readily accessible to the community.

· Incorporate and integrate a variety of land uses, including retail, office, education, human services, community facilities, recreation, entertainment and residential uses where appropriate.

· Provide good accessibility by all available modes of transport (particularly public transport) and safe pedestrian and cycling routes, and to encourage multi-purpose trip-making to such centres.

· Facilitate ease of pedestrian movement between components of centres, public transport interchanges and parking areas.

· Maximise opportunities for the co-location, multiple use and sharing of facilities.....

105. The Business Objective appears in Clause 17.02-1. Relevant provisions are:

"To encourage developments which meet community's needs for retail, entertainment, office and other commercial services and provide net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities.

Commercial facilities should be located in existing or planning activity centres unless they are:

· New freestanding commercial developments in new residential areas which have extensive potential for population growth or will accommodate facilities that improve the overall level of accessibility for the community, particularly by public transport.

· New convenience shopping facilities to provide for the needs of the local population in new residential areas and within, or immediately adjacent to, existing commercial centres."

106. Gaming policy appears in Clause 19.02. While on the one hand the policy is that the installation and use of a gaming machine should be allowed in a hotel or club if it does not result in a change of land use, in terms of location, the policy is strict as regards gaming and shopping:

· Gaming machines should not be located in a shopping complex if the complex is specified in the planning scheme.

· Gaming machines should not be located in a strip shopping centre, except in certain specified circumstances.

107. There are already four shopping centres "specified in the Planning Scheme" under Clause 58.28. Mr Montebello submitted that it was reasonable to assume that this policy would be relevant to any neighbourhood centre or sub-regional centre.

108. The background section of the Melton East Strategy Plan explains how the original Strategy Plan of 1993 had originated in a former Local Structure Plan. The Minister for Planning had required that it be reviewed with particular regard to retail patterns, but the Council had extended the brief and commissioned a comprehensive review in 1997. This review was to include preparation of a revised strategic approach for the area which would serve as a basis for its Municipal Strategic Statement. The Melton East Strategy Plan 1997 and the Municipal Strategic Statement can be said to have evolved together.

109. A copy of the Municipal Strategic Statement was tendered by the Council. The strategic background may be summarised as follows:

The townships of Melton and Melton East are the identified future urban growth areas in the Shire with a population potential of 80,000 and 70,000 respectively.....

The Shire's second largest urban area is the Melton East Growth Area that abuts the urban fringe of Melbourne on the Shire's eastern boundary. Although it will be predominantly residential in nature, it will eventually contain a sub-regional commercial and retail centre as well as a hierarchy of community and civic facilities.

21.03 PLANNING VISIONS AND OBJECTIVES FOR MELTON

Based on the snapshot, and on the identified issues, the following overarching vision is presented for the Shire to the year 2015.

The Council believes that the Shire should develop as two residential communities supported by small villages (with constrained boundaries) all of which are surrounded and supported by non-urban land which fulfills a variety of agricultural, environmental, visual and tourist functions which Council is invigorating through innovative practices and environmental incentives.

The following general vision for the Shire until the year 2015 is provided to support this overarching position.

By 2015, Melton township will have continued to grow steadily and should contain in the order of 13,000 households. It is likely that there will be some differentiation in housing types, with a greater emphasis being placed on medium density housing ...... The Hillside, Burnside and Morton estates in Melton East will be thriving communities in their own right. Development in Caroline Springs will be well under way and the town centre will have begun to take shape .Shopping centres such as the Banchory Grove Activity Centre and the Bellevue Hill Neighbourhood Centre will have been developed providing their communities with a range of shopping and personal services. Community facilities such as children's services will have co-located with these centres, providing focal points for local residents.

The employment base of Melton will have broadened considerably. Melton and Melton East's commercial areas will provide significant employment in the retail and personal services areas.

Eight distinctive land units have been identified in the Shire, and specific objectives and strategies for each of these land units are contained in Clause 21.04.

21.04 PLANNING STRATEGIES AND IMPLEMENTATION FOR THE SHIRE

The Council has prepared a municipal wide Physical Framework Plan that indicates key land use units and a preferred direction for these areas. The Plan identifies eight main land use units:

The Physical Framework Plan sets out the strategic direction for each of the key land use units. It is not, however, a zoning map and should not be read as such. Instead, the plan highlights key planning issues for distinct regions of the Shire, and makes a link between these directions and their statutory implementation.

The Melton East Growth area is located on the eastern boundary of the Melton Shire and abuts the City of Brimbank along its entire eastern border. It comprises an area of about 2,770 hectares, bounded to the south by the Ballarat railway line, to the west by Clarkes Road, Monaghans Lane and the high voltage transmission line, to the north by a natural watershed and the Bendigo railway line; and to the east by the Melton Shire boundary.

The Melton East Growth Area is the Shire's second urban centre. Currently, the area is experiencing high rates of growth and development, although the majority of this is occurring in the northern suburb of Hillside. Burnside, the area's southern-most suburb is currently under construction, and growth rates are increasing. It is envisaged that the area will eventually accommodate approximately 70,000 people. Given this population size, a range of community, retail and recreational facilities and activities have been planned (see Melton East Strategy Plan (Revised) 1997) and their development will be encouraged.

To enable the Melton East Growth Area to develop its own identity, distinctive from the established residential areas to the east, providing a range of civic, cultural, commercial, educational and employment opportunities for its residents.

The Melton East Growth Area is the Melton Shire's second largest urban settlement and will ultimately accommodate approximately 70,000 people in distinctive neighbourhood structures with a range of commercial and community facilities at the local, neighbourhood and sub-regional level........

Adopt the Melton East Strategy Plan (Revised) 1997 in order to provide a degree of certainty for developers and local residents. Any re-zonings for commercial purposes should be in accordance with the strategic principles outlined in this report.

Ensure that community and commercial facilities are clustered around major intersections, and are linked by pedestrian and cycle paths.

Create a town centre that incorporates the Kororoit Creek as an open space and recreational feature.

Adopt the following retailing hierarchy for the growth area:

· Sub Regional Centre (20,000m2 GLFA) around the intersection of Kororoit Creek and the main north south arterial road.

· Community Activity Centres located in each of the three residential suburbs with 6000m2 at Burnside; and two centres of 7500m2 in the northern suburbs

· Neighbourhood Activity Centres located in seven neighbourhoods each serving a catchment of between 5,000 and 10,000 people and each of approximately 3,000 to 3,500 m2 in area.

· Local shops distributed throughout the growth area.

Ensure that proposed Community Activity Centre and Neighbourhood Activity Centres are designed so as to maximise social interaction and community identity.

Locate community activity centre on main north-south or east west traffic arterials, in locations that are highly visible and accessible.

Provide infrastructure in a timely and efficient manner that meets the needs of current and future generations.

Adopt the Residential 1 Zone with a Development Plan Overlay for all the land north of the Western Highway excepting the Burnside Activity Centre (Business 1) and the land between the Western Hwy and the Burnside Activity Centre (Mixed Use).

All development plans shall be prepared in accordance with the strategic principles outlined in the Melton East Strategy Plan (Revised) 1997.

Adopt the Industrial 1 Zone for all land within the Growth Area located between the Western Highway and the Ballarat Railway Line.........

110. The next page in the Municipal Strategic Statement is the "Melton East Structure Plan". This is in the nature of a sketch with symbols on it. Western Highway and Clarkes Road are recognisable on it. Three Activity Centres are located with arrows identifying them as "Caroline Springs". One is close to the eastern corner of the intersection of Caroline Springs Boulevard and the Western Highway. "Burnside" is indicated as a suburb name, but the only Activity Centre in the Burnside area is shown as an "Other Activity Centre" (ie below "Community Activity Centre" in the hierarchy) to the east of Westwood Drive and well north of the Highway. That location corresponds more to the "neighbourhood centre" shown on the Melton East Strategy Plan than to the Community Activity Centre shown on the west side of Westwood Drive in the general location of the current Business 1 Zone. There is a north-south road called "Gourlay Road" between Clarkes Road and Westwood Drive, which (Mr Montebello confirmed) has been replaced by Caroline Springs Boulevard.

111. Mr Pitt described this Structure Plan as showing:

".......a general location of an Activity Centre within the Burnside Estate close to Western Highway (where planning permissions for developments have existed since the 1960s) and for an Activity Centre within the southern sector of the Caroline Springs Estate (but a substantial distance from Western Highway) and with the sub-regional Town Centre more centrally located within the Caroline Springs Estate immediately to the north of Kororoit Creek."

112. This description reads the "Other Activity Centre" site close to the Caroline Springs Boulevard/Western Highway intersection as a displacement of the centre shown on the Strategy Plan for Burnside. I do not agree that this is a correct interpretation of this plan. Mr Biles read the Structure Plan site as to the east of the designated Activity Centre, which is consistent with the treatment of the corner site as a daily convenience level Activity Centre given in the officer's report of 29 November 1999. Nor was Mr Pitt's interpretation supported by other evidence, which was consistent with the "corner shop" centre being omitted from the Strategy Plan but located (once the decision had been made as to which alternative was to be pursued) on the Structure Plan.

113. I will come back to the question of the discrepancy between these plans, mentioning in passing that I do not consider the decision turns on the way in which the Strategy Plan or adjoining site is shown in the Structure Plan.

114. The Municipal Strategic Statement sets out the aims and strategies, and is contained in Clause 21. Clause 22 of the Planning Scheme explains the role of both these Clauses, as follows:

Shire-wide land use policies are now presented for the implementation of each of the key issues identified in Clause 21.

The MSS Context is provided for each policy to provide the link between the strategic basis and the statutory implementation.

The Policy Basis description at the commencement of the policy is included in order to articulate the rationale for the policy.

The Policy Objectives are derived from and expand upon the overarching objectives at Clause 21-03.

The role of the policies in the Planning Scheme is to give local expression to the discretion provided in each zone.

115. The Local Policies deal with eight subjects, not all of which are relevant. Clause 22.01 contains the Residential Land Use Policy. This policy applies to all land within a residential zone and to the land contained within each of the six named Structure Plans, including the Melton East Local Structure Plan, which were set out in the MSS. General policy objectives include:

To ensure that Melton and Melton East become socially and economically sustainable urban areas that provide a diverse array of community services, shopping, employment and other facilities.

116. There are a set of specific policies for Melton East:

1. Each suburb in Melton East will be encouraged to develop its own distinct identity and will be focussed on a centre linked to rural land by a central east-west oriented seam.

2. The western edge of Melton East will form a distinctive and permanent barrier to the westward expansion of metropolitan Melbourne.

3. The Melton East town centre located to the north of Kororoit Creek will form the nucleus of this urban area and will accommodate higher order facilities such as tertiary campuses, civic centre and discount department store.

4. A strong north south road network will be developed in Melton East.

5_. The staging and release of land in Melton East will proceed in an orderly manner from the north to the centre and from the south to the centre._

117. Clause 22.04 deals with "Urban development". Local policy for Melton East is:

"Ensure that Melton East is developed in an orderly manner gradually proceeding from the northern to the central seam and from the southern to the central seam as infrastructure such as roads and drainage is provided and connected in accordance with the model outlined in the Melton East Strategy Plan Review (1997)."

"16. Avoid linear or ribbon development along highway and freeway frontages.

17. Discourage proposals on freeways and highways which lessen the level of service, safety and function of the road; which result in a lessening in appearance and visual amenity of the area; which result in a loss of vegetation; and which extend linear or ribbon forms of development."

119. Employment policy is dealt with in Clause 22.05. Policy objectives include directing the majority of new employment growth to either the Melton township or the Melton East Growth Area. The Industrial Zone on the south side of Western Highway is a focus for employment growth; but the policy applies to the entire municipality. Objectives include:

· To co-ordinate the development and location of commercial centres, industrial areas and other employment opportunities in the municipality so that the length and frequency of vehicle trips is minimised.

120. Policy includes: "Facilitate the expansion of local shopping centres subject to appropriate market feasibility and analysis".

121. Clause 22.06, Retailing Policy, states that it applies to land zoned for Business purposes. It does, however, contain material that is applicable to commercial uses generally. It also reinforces through its Policy Objectives that the Council is seeking to "provide a clear and concise hierarchy of retailing facilities across the municipality". Implementation of "a hierarchy of commercial centres across the municipality (as identified in Clause 21") is the first stated local policy. The policy basis states that "Shopping centres represent a significant financial investment, and it is essential that investors and the community be provided with a degree of certainty in terms of their location, size and timing", and also includes:

"The location of shopping areas offers opportunities to promote community interaction and define a sense of place. The co-location of community facilities around shopping areas will help to heighten activity levels and create a sense of urban character."

122. The emphasis on "hierarchy" is not necessarily shared by other Councils in these terms. For example, in a developed area such as Maribyrnong, the Planning Scheme retail policy does not seem to use the word at all, relying on identification of centres on its framework plan and describing their intended functions and scale in broad terms.

123. Taking the repetition of implementation of the retail hierarchy in the MSS and local policies, and the reference in the Melton East Strategy Plan to disputes having arisen over rival proposals and opposing views about both the amount of retail provision and its distribution, leading the Minister for Planning to intervene and require a review of the original version of the Melton East Strategy Plan (1993), it would appear that the identification of which commercial centres are to be expanded to meet regional needs, and which are to remain small and local, is a hot issue in the rapidly expanding growth areas. The emphasis shows that Council is seeking maximum strategic and policy support for the framework which it has adopted.

124. Also relevant to matters referred to in evidence is the Policy Objective:

· To develop, encourage and support measures that reduce the level of escape expenditure from the local economy.

7. Commercial and community facilities will be encouraged to locate on main traffic links.

126. The purposes of the zone, as set out in Clause 32.01, omitting the purpose relevant only to residential use, are:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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

127. There is thus a considerable body of relevant policy which has informed the planning of this area since before the adoption of the new VPP format Planning Scheme, and which is now referred to in the Municipal Strategic Statement. Of most immediate relevance is the Melton East Strategy Plan (Revised) 1997, which the officer's report of 12 August 1999 describes as "the overriding land use policy to guide land use and development decisions in the Melton East Growth Area". This is a "reference document" in the new Planning Scheme. This is intended to mean that it has been referred to, but not "incorporated". As a background study to the relevant part of the Municipal Strategic Statement, it would not be necessary to the role it plays, or in keeping with the practices described in the Manual, for the Strategy Plan to be afforded status as a part of the Planning Scheme itself. As a "strategy that may affect the use and development of land", it is referred to in the prescriptive part of the Planning Scheme in the note at the end of Clause 43.03-3 of the Development Plan Overlay, which directs the reader to:

"Refer to the State Planning Policy Framework and the Local Planning Policy Framework_, including the_ Municipal Strategic Statement_, for strategies and policies which may affect the use and development of land."_

128. The same note appears at the end of Clause 32.01 - the Residential 1 zone provisions. But the local policies that appear in Clause 21, and the Melton East Structure Plan, are part of the scheme itself. Where there is a conflict, the policy included in the scheme would normally have more weight than a policy in a "reference document".

129. The Strategy Plan defines the area to which it relates, which includes the land owned by both the Applicant and Delfin. The area is divided into three "suburbs" - northern and southern, and employment, with the subject land in the southern suburb, which extends north to Taylors Road. It also identifies 10 "neighbourhoods" within the three suburbs. The land to the west of Westwood Road as far as Clarkes Road is in neighbourhoods 9 and 8 (moving westward).

130. The introductory section of the Strategy Plan explains that it provides a framework for the development of the area in a physical, administrative, social, financial and environmental sense. It comprises a series of primary elements:

131. Each of these elements is dealt with in turn. Each has a set of stated goals, objectives, background statements, strategic principles and alternatives which collectively define the Strategy Plan requirement for that element. When combined with the Implementation section, they form the Strategy Plan. Development and use of the land within the Strategy Plan Area "must satisfy the goals and objectives": p.4.

132. Regarding the strategic principles, the Strategy Plan states (at p.5):

"The primary expression of the Strategy Plan requirements is set out in the Strategic Principles.

The Plan requires that these principles are complied with in the development and use of land, the provision of services and facilities and the planning and management of growth and all those matters which will influence the use and enjoyment of the Area by future residents, and over which the Council and/or the state government may exercise control."

133. But the Strategy Plan contemplates that alternatives may be acceptable. Also at p.5, it states:

"It is possible and even likely that alternative approaches to development use and management of the Area will be envisaged by various parties. If any party proposed to pursue an alternative approach to that set out in the Plan and expressed in the Strategic Principles, they must prepare a comprehensive justification for the Council. The justification must demonstrate that the alternative will meet the Strategy Plan goals and objectives as well as satisfying the criteria set out in each section."

134. The Strategy Plan is not totally flexible. It sets out with respect to each element the scope within which alternatives may be considered acceptable.

135. Each of the elements is illustrated by at least one plan, and in the case of services and infrastructure, one per service. What these have in common is that they each illustrate how that element will work across the entire Area, so that the infrastructure links (for example) appear as a connected network, without regard to individual property boundaries.

136. The Transportation strategic principles (at p.39) state that "no frontage access is to be allowed from abutting properties to the Western Highway".

137. The Land Use Structure Plan shows the principle road system, the sub regional/town centre site, community activity centres (three) "other centres" (eight) "activity seams", and regional and district open space. It is not identical with the Melton East Structure Plan which forms part of the Clause 21.04-2 (the MSS for the Melton East Growth Area).

138. The Indicative Activity Centre Framework plan shows the sub regional/town centre site, each community centre (three), neighbourhood centre (expressed to be to a total of five) and optional or alternative neighbourhood centre sites, together with the main roads through the area and how they are related to the road system.

139. The Chapter on Activity Centres defines the retail hierarchy. The approximate total retail floor space provision for the area is stated. The strategic principles include ensuring that existing and future residents have access "to the full range of retail and related facilities"; and also that "Wherever possible, non retail functions including community and recreation facilities required for each neighbourhood should be located in conjunction with retail centres".

140. The "characteristics of the envisaged hierarchy" may be summarised for present purposes (and omitting reference to relocation of permitted peripheral sales floor-space) as:

"One Sub-regional Activity Centre. This is to be located in a prominent location and to the west of the main north-south road. It "could ultimately include" 20,000 m2 of retail floor space, comprising a discount department store, major supermarket, smaller discount supermarket, various other types of shop, service uses, restaurants and take away food outlets; offices, and also a list of uses which includes a community hall, cinemas, a tavern/hotel, restaurants, reception rooms, community meeting and activity spaces, churches, a secondary college, child care, indoor recreation facilities, gymnasium, outdoor recreation facilities, accommodation for clubs, community health and welfare facilities. It could become an important employment, cultural and service focus for the Melton East community.

Community Activity Centres. One each for the three suburbs are planned. The catchments will be 10-20,000, and retail floor spaces depends on the particular catchment size and centre function. The two northern centres would have areas of 7,500 m2, and Burnside (mentioned by name) 6,000 m2. They would comprise a supermarket and supporting small shops and services.

"The Community Activity Centres have been located in highly accessible positions either on a main east-west lateral road, or the main north-south arterial. They will be co-located with appropriate community facilities and open space to reinforce their role as a focus for each suburb. Each centre will require a site of 2-3 hectares."

Neighbourhood Activity Centre. On the assumption that the four higher order Activity Centres are provided, five neighbourhood centres are considered justified. Each will comprise a total retail floor area of about 3,000-3,500 m2 made up of a medium sized supermarket and supporting small [shops] and services. The catchments will be 6-8,000, and the sites up to 2 hectares. There may be substitution for two of the "desirable locations" shown on the Indicative Activity Centre Framework Plan by justifiable alternatives (also indicated on the Framework Plan). A total of three centres may be supported by the southern suburb.

Local/corner shops. These facilities principally serve a convenience, day to day retail function to a local area. Typically, they comprise a convenience store or general store, sometimes associated with a service station. The catchment is 3,000-3,500."

141. The Activity Centre alternatives are dealt with (following a common format) as follows:

"It is possible and even likely that developers may wish to plan for a different retail and community provision from that envisaged in this Plan. Developers who propose alternative retail provision should satisfy Council that:

· The full potential of the Area to support retail activities will be realised in their proposal;

· The total floor space potential of the Area and each sub area will be realised;

· The proposal will not result in under provision, lack of accessibility or dislocation of retail centres adjoining areas;

· There are overall community benefits resulting from the alternative retail provision;

· There is provision for the sub regional scale of facility with associated range of non retail high order community and recreational facilities which will provide a focus and identity for the Melton East Area."

142. Community facilities are also planned on the basis of needs at three levels - neighbourhood, suburb and district (see p.26). Indicative locations are also provided on a plan, in Chapter 5 at p.35. At the local neighbourhood level, the basic services are a state primary school and a multi-purpose community facility, most of the activities of which will be related to child health and care, and community meeting facilities.

143. Higher order recreation and leisure facilities, requiring a greater population catchment to ensure sustained viability, should be provided at suburban or sub-regional level. Those that require an even higher population catchment, including cultural and entertainment centres, "should be provided on a sub-regional basis (in or near the town centre) so that residents have reasonable access to the full range of services that they may require".

144. The Urban Design strategic principles (at p.50) state that "The main sub regional activity centre in the central suburb will ultimately be developed as the predominant centre, providing a focus for the whole Melton East Area."

145. Indicative locations for community facilities in the vicinity include only the town centre and a "suburb" level facility on the western side of Westwood Drive, at the intersection with, but somewhat to the north of, the Highway. Nothing is indicated on the Delfin site between the Highway and an indicated east-west road that has been replaced by a more complicated road pattern, more or less where a Community Activity Centre appears on the Melton East Structure Plan following Clause 21.04-2 in the Planning Scheme.

146. Mr Montebello pointed out that there was no activity centre related to the subject land on the Indicative Activity Centre Framework Plan in the Melton East Strategy Plan. However, he referred to the "alternatives" and submitted that the convenience shop on the corner of Caroline Springs Boulevard falls within the lowest level of Activity Centre. The proposed facility would therefore be located in conjunction with a retail centre. He argued that for the purpose of the strategic principle that "Wherever possible, non retail functions including community and recreation facilities required for each neighbourhood should be located in conjunction with retail centres", no distinction was made as to the place of the retail centre in the hierarchy, so that any retail centre fulfilled the purpose. The presence of the convenience store, therefore, justified the proposed development in terms of the Melton East Strategy Plan.

147. To give this argument its due, it should be recalled that the convenience store is a large one, and is alternatively described as a small supermarket. It also has a petrol station in conjunction with it, sharing a large common car park area. There is also provision for a community service in the small Country Fire Authority depot on the same site. By use description, this site meets the "local/corner shop" level of the hierarchy; but it is quite generous in size and layout, with a good deal more parking provided than a simple convenience store would usually have. By definition in the new Planning Scheme, a "Convenience shop" is a building with a leasable floor area of no more than 240 square metres. Mr Rumbold stated that the site was 700 sq.m. Mr Milner stated that it would have 800 sq.m. of retail floor space. Either way, it is larger than the maximum that should strictly be characterised as a "Convenience shop", even though it will fulfil a local convenience function in the neighbourhood.

148. The Melton East Structure Plan in the Municipal Strategic Statement supports the location of an "Other Activity Centre" (being an Activity Centre at a lower level than either the sub-regional Town Centre or a Community Activity Centre, which are shown with their places in the hierarchy defined) at or close to the eastern side of the Caroline Springs Boulevard intersection.

149. Mr Montebello also referred to "ordinary land use principles" applicable to a place of assembly in justification of the proposed site. These can be summarised as:

· The use is suited to a high exposure location on a highway near a major intersection;

· It should be set well away from both residential and retailing areas;

· It needs a site that can accommodate ample parking, safe access and significant landscaping toward the interface with residences;

· It should be in a regionally accessible location; and

· It will provide a valuable (albeit private) form of community/recreation facility to developing suburbs.

150. In justification of application of such "ordinary land use principles", Clause 65 of the Planning Scheme contains "Decision guidelines", which arguably apply to a decision whether or not to approve a Development Plan.

"Because a permit can be granted does not imply that a permit should or will be granted.

The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."

"Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:

· The matters set out in Section 60 of the Act.

· The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

· The purpose of the zone, overlay or other provision.

· Any matter required to be considered in the zone, overlay or other provision.

· The proximity of the land to any public land.

· Factors likely to cause or contribute to land degradation, salinity or reduce water quality.

· Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

· The extent and character of native vegetation and the likelihood of its destruction.

· Whether native vegetation is to be or can be protected, planted or allowed to regenerate.

· The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

153. Mr Montebello and Mr Pitt agreed that Clause 65 was not confined to decisions on permit applications. Mr Pitt argued that it was never intended to exclude amenity, for instance, as a relevant consideration under the Development Plan Overlay. Mr Montebello agreed that "approval of a plan" included approval of a Development Plan. The Development Plan Overlay requirements to provide details about proposed landscaping etc do not cover every aspect of amenity, and Clause 65 deals with the general issue; but the words "as appropriate" in Clause 65.01 are important.

154. Mr Stokans submitted that "plan" in Clause 65 did not include a "Development Plan". Mr Milner was unsure about the application of Clause 65 of the Planning Scheme to approval of a Development Plan.

155. Although there is a reference to a permit in the first sentence, this is a general reference relevant only to permits. There is no need to have a reference to "an application or approval of a plan" if the clause is intended to be confined to permits, as the plan accompanying a permit application would not be considered separately from the application. The generality of the reference to "the proposal" producing acceptable outcomes also indicates that this clause is intended to apply to decisions where approval of a plan is required separately from permit applications, such as the present decision to approve a Development Plan. But in the present case, I do not consider that Clause 65 added anything of great significance, although the explicit reference to amenity supports the implication to be drawn from reference to adjoining uses that appears in the Development Plan Overlay.

156. In order to understand how this "development plan" could be accepted as an application for approval of a Development Plan, when in its own words it contemplates that the development plan will be a later document, it is necessary to understand that this application for approval was made under the former Melton Planning Scheme. The old scheme was also the regulatory document to which the series of strategy and structure plans approved in relation to Melton East, and Caroline Springs in particular, were relevant. The old scheme contained a site-specific zone for the Melton Urban Development Zone: Clause 124A. This was conveniently extracted in the statement of Mr Milner.

157. The format of the old zone commenced with a statement of purpose that included:

"To provide for development of land and communities and community services and facilities in a comprehensively planned and orderly manner in accordance with a Local Structure Plan."

158. The use then defined as "Place of Assembly" (which I will take to be the same for present purposes as the VPP definition of the same term), like many other uses, was placed in the Section 1 category of the Table of Uses, so that no permit was required so long as a condition was met. The condition was:

"The site is identified for the use and is within an Activity Centre on a Local Structure Plan approved by the responsible authority."

159. If the condition was not met, the use moved into the Section 2, or "permit required" category.

160. Clause 124A-2 contained the provisions for a Local Structure Plan. Mr Montebello submitted that these provisions were roughly equivalent to the provisions of the present Development Plan. I accept that Clause 43.04-3 ("Preparation of the development plan") contains provisions roughly equivalent to the first two paragraphs of Clause 124A-2; but the Local Structure Plan requirements were more demanding than the present Development Plan requirements. For example, population targets for component areas of the plan, proposed Activity Centres and community and social facilities, both in a sustainable hierarchy, a proposed road layout that not only established a movement network but also minimised undesirable ecological impacts, and the means by which significant employment would be created or opportunities for employment facilitated were all required to be shown or provided for.

161. Clause 124A-2 also contained a set of matters which had to be taken into consideration in preparing a Local Structure Plan. These included:

"the provisions of the Melton East Strategy Plan and municipal planning policy as expressed in general and strategy plans in force from time to time."

162. Clause 124A-4 required that (with limited exceptions none of which is relevant):

"No buildings or works may be constructed until a Development Plan showing the proposed development has been prepared to the satisfaction of the responsible authority."

163. This is equivalent to the first sentence of Clause 1.0 of Schedule 1 to the Development Plan Overlay: "Prior to the issue of a planning permit for any use or development, a Development Plan must be prepared to the satisfaction of the responsible authority."

164. Clause 124A-5 set out the requirements for a Development Plan, the first of which was that it must be generally in accordance with any approved Local Structure Plan applying to the land. A set of detailed requirements were then set out. Some of these have an equivalent in Clause 2.0 of Schedule 1 to the Development Plan Overlay which deals with "Requirements for a development plan". I note that in both cases, detailed information on such matters as vehicle and pedestrian access ways, car parks, loading bays and landscaping (including types and species of plants and their maintenance) are included.

165. While a Development Plan under Clause 124A-5 was required to be in accordance with the relevant approved Local Structure Plan, the Development Plan in the Development Plan Overlay must be to the satisfaction of the responsible authority. Before deciding to approve the plan, however, the responsible authority, must consider "the provisions of the Melton East Strategy Plan and municipal planning policy."

166. No permit was required for a Place of Assembly use that conformed to an approved Local Structure Plan under Clause 124A.1-1; but a Development Plan had to be approved before a building or works could be constructed. Mr Montebello produced an example of a "development approval" issued in the form of a permit under the old Planning Scheme.

167. The old Planning Scheme therefore had an additional step on the path towards the issue of a necessary approval for the proposed development and use. The sequence went:

(i) Melton East Strategy Plan and municipal planning policy;

168. In my view, the Local Structure Plan was more clearly intended to be a plan for a locality, which set up the planning context which was to be implemented in each development plan, than equivalent to a development plan under the present Overlay. The Development Plan provisions in Clause 124A-5 required, as well as the information that would show the degree of compliance with the Local Structure Plan, "the location, layout, elevations, dimensions and external surface treatment of all buildings and works". This involves a considerable degree of detail of the proposed development, not required in the present Overlay. I do not regard the present Overlay provision as directly equivalent to either the old Development Plan or Local Structure Plan provisions.

169. On the contrary, I agree with Mr Milner's opinion that a Development Plan under the old Clause 124A was a "complete approvals package" as far as development approval was concerned, so that it was required to embody such issues an amenity, although not strategic issues such as consistency with the Melton East Strategy Plan. The strategic issues were taken care of in the Local Structure Plan stage. But in the new scheme, the Development Plan is an interim process on the way to a subsequent permit, so that greater detail is now required, but also strategic issues must be considered.

170. I see no particular reason for the Council to continue to process a document which it had received as a Local Structure Plan under the old Planning Scheme as a development plan under the new one, as Mr Montebello submitted the Council had done, since there is no right to make applications for approval of a development plan and have them processed under the Act. The only requirements for their content and directions for what must be considered before their approval are in the Planning Scheme. The document needed to be assessed against the new Planning Scheme provisions from the commencement of the new Planning Scheme, whenever it had been lodged. There was no sort of ongoing transitional right to have it given special status because it had been lodged before the commencement of the new scheme. Nor is it apparent that the Council assessed it on any other basis than against the new Planning Scheme provisions.

171. The new Planning Scheme omits the Local Structure Plan step. But it also has a more secure policy component available under the VPP format, so that the Melton East Strategy Plan is required to be considered along with and as part of local policy in assessing any approval required under the Planning Scheme. The new format Planning Scheme also allows - indeed demands - that Activity Centres be identified in the Local Planning Policy Framework, within the Planning Scheme itself.

172. As well as the Melton East Strategy Plan and its predecessors, there have been a series of "strategy plans" or "local structure plans" specifically for Caroline Springs. Mr Montebello set them out in his submission; there are seven not including the subject Development Plan. Mr Montebello referred to these as "statutory" or "non-statutory", meaning that "statutory" plans had been certified by the Council pursuant to the Planning Scheme (all the relevant certifications being as Local Structure Plans prior to commencement of the new format Planning Scheme except the subject plan), and in the case of a "statutory development plan", that it was "equivalent to a permit".

173. The procedure followed in the creation of these "plans" was that the Caroline Springs Strategy Plan was to act as a master plan for the estate, within the Melton East Strategy Plan. With the Caroline Springs Strategy Plan as the framework, the Local Structure Plans would be developed; and they would facilitate a number of detailed Development Plans for specific portions of the Caroline Springs project (explained in the Caroline Springs Strategy Plan of November 1999). All the "plans" comprised a report, in some cases lengthy, and a series of plans which were indicative in nature, and mostly noted as "subject to change".

174. None of these "plans" has been made an incorporated document under Clause 81. They have, however, been accepted as the "Southern Neighbourhood Local Structure Plan" in the case of the Caroline Springs Local Structure Plan certified by the Council 20 July 1999 (just before commencement of the new VPP format Planning Scheme), Amendment 1 to the Local Structure Plan for Caroline Springs Southern Neighbourhood - Proposed Display Village Locations, certified 30 March 1999, and also the "Caroline Springs Revised Local Structure Plan - Western Highway Activity Centre Supermarket and Petrol Filling Station" certified on 14 April 1999 as the Western Highway Activity Centre Local Structure Plan.

175. This last document referred to the convenience store/supermarket and petrol station site as the "subject site". The land which is the subject of the present Application was shown as "the adjoining site", but otherwise blank. The convenience store site showed a layout for what was described as a "metro store", access from both a service road off the Highway and off Caroline Springs Boulevard, and a car park area at the front. The Local Structure Plan was in the form of a report (authorship of which is not revealed) on behalf of Delfin, with two plans attached, plus other documents referred to but not copied in the version tendered. The report recites its relationship to the Local Structure Plan for the Southern Neighbourhood, stating that the scope of that document did not include proposed Activity Centres, given that detailed planning considerations for those areas were not far enough advanced at that stage. The purpose of the report is to address the proposed Local Activity Centre on the southern boundary of the site immediately to the east of the intersection of Caroline Springs Boulevard and the Western Highway. The proposal included the three elements of the convenience shop, petrol station and CFA depot site.

176. The report goes on to refer to the Melton East Strategy Plan, and to a Caroline Springs Strategy Plan prepared in November 1997, shortly after approval of the Strategy Plan. The Local Structure Plan for the Southern Area was said to have expanded in more detail on the broad issues raised in the Caroline Springs Strategy Plan, particularly with regard to more finite locations for proposed Activity Centres. It was admitted that the Melton East Strategy Plan did not identify an Activity Centre in the proposed location, but was said to have recognised the intent of provision of such key facilities within the locality; while the Southern Neighbourhood Local Structure Plan outlines two key sites to the northern and southern extent of the LSP area for potential Activity Centres. The northern site had been the subject of discussion with education providers and was now proposed to become a "local learning centre", with little need for a retail component. This report recognised a need for key local shopping and convenience facilities to be provided to Caroline Springs as early as possible, with the southern site being best suited for creation of a local Activity Centre with a small retail and commercial focus. Its commercial viability was assisted by Highway traffic volumes: see p.2.

177. The report outlined the relationship of the site to adjoining land, illustrated with a detailed plan; also access and egress, and internal traffic movements. Environmental issues, public transport, employment and infrastructure provision were briefly addressed. It would appear that a plan of the proposed buildings was also available (although not tendered at the hearing), as reference was made to architectural form and materials. The area shown on the accompanying site plan included detail of all lots and road layout for a substantial distance to the north and west of the site, so that how all immediately adjoining and nearby residential lots related to the site boundaries appeared on the plan, plus open space and major landscaping proposals. It included land as far north as the Brookside Village (then shown as "future residential"), and the proposed neighbourhood learning centre site was included.

178. It is the lower order centres that are the subject of variation. In the "Caroline Springs Strategy Plan, November 1997", Delfin refers to the two Neighbourhood Centres proposed for the northern and southern parts of the site, and adds that "a lower order Activity Centre is proposed on the southern boundary of the site adjacent to the Western Highway" (p.3). A "Caroline Springs overlay" was proposed for Indicative Activity Centre Framework Plan from the Melton East Strategy Plan, showing (as well as the town centre) a neighbourhood centre to the south of "Rockbank Middle Road" but west of Caroline Springs Boulevard (instead of to the east) and an untitled Activity Centre including three sites on the Highway, of which the subject land is one. The black and white copies of the plans which I have seen (a further copy was produced by Mr Milner) do not give any indication that this site is proposed to be an Activity Centre; but Mr Montebello identified it on the copy tendered that the description in the report can be related to a specific site on the Western Highway.

179. The document entitled Amendment 1 to the Local Structure Plan for Caroline Springs Southern Neighbourhood - Proposed Display Village Locations, endorsed on 20 March 1999, was not directly related to Activity Centres, but the attached plans show that by this stage, the Neighbourhood Activity Centre that had been on the west side of Caroline Springs Boulevard had been swapped over to the east side, and had become the "learning centre" concept reflected in current plans of the estate. Also, the approved convenience store and petrol station development was shown in detail, with the subject land to its east shown as "proposed commercial development", although no details were given. I note that this layout, which had been approved by the Council, did not appear in the plans attached to the Revised Local Structure Plan - Western Highway Activity Centre which was also dated March 1999, and which was stamped with Council's endorsement on 14 April 1999.

180. The "sub regional/town centre" site appears to have been consistently located immediately to the north of Kororoit Creek, between Caroline Springs Boulevard and Westwood Drive, well to the south of Taylors Road, in all the "Caroline Springs" strategy or structure plans. It is close to central in the "southern suburb" defined by the Melton East Strategy Plan. I note that in the Structure Plan the site of the subregional/town centre remains the same as on the Melton East Strategy Plan, but the symbol for it is bigger, so that it fills more space. A comparison between the description of its location in the Strategy Plan and in Clause 21.04-2 shows that it was moved slightly from its original location, as shown on Mr Milner's "mud maps". Given the size of this centre, the accuracy with which its boundaries are shown on a small plan would in my view not be so much an issue as an indication whether the centre was to be on both sides of the arterial road or have the road as its outer boundary, and matters of that nature. I consider that in spite of minor boundary adjustments, the Strategy Plan and Municipal Strategic Statement have dealt consistently with the subregional/town centre, and that protection of the function of this centre as "the nucleus of the urban area", accommodating higher order facilities such as tertiary campuses, civic centre and discount department store (as described in Clause 22.01), is very much still a current, relevant local policy.

181. Mr Biles, who gave evidence for the Applicant, agreed to some extent with Macro Plan that if the proposed facility is intended to serve a regional catchment, location of it within the sub-regional town centre may not be appropriate. But he regarded its location on the edge of a local area as equally inappropriate, as this would diminish the efforts of the Melton East Strategy Plan to plan effectively for the future population of the area. He stated that the siting of the facility appeared to be opportunistic, and had the potential to subvert the community planning intentions of the Melton East Strategy Plan, although the ideas behind the facility had some "applicability" within Growth Areas.

182. Mr Biles was also of the view that locating the proposed development next to the petrol station/convenience store did not constitute a neighbourhood centre, nor a clustering around a major intersection (in the terms of the Melton East Strategy Plan). On the contrary, the proposal failed to co-locate community facilities with the planned neighbourhood shopping centres, a neighbourhood centre or in a Community Activity Centre designated in the Strategy Plan. Although local neighbourhood shops were encouraged to be distributed throughout the Growth Area (like the convenience store/petrol station) this proposed facility did not serve any local retail needs.

183. In answer to Mr Stokans, Mr Biles agreed that there was no specific statement in the Municipal Strategic Statement requiring aggregation of facilities. It was his interpretation of the Local Planning Policy Framework that the facilities should be co-located. Nor was there any specific statement that community facilities had to be co-located with any Activity Centre. The strategy was for community and commercial facilities to be clustered around major intersections. In Mr Biles' opinion, one small supermarket and petrol station did not constitute a cluster of activities for this purpose. The CFA station did not enhance the function of the centre for that purpose either. In re-examination, Mr Biles stated that he was unable to think of a regional community centre that did not have a retail presence of some order. Retail was usually assumed necessary to support the centre.

184. Accessibility of facilities, as envisaged in Chapter 5 of the Melton East Strategy Plan, arose from this strategy because where centralised facilities are surrounded by residents, a high level of accessibility is provided by the intersecting roads.

185. The strategy sought to avoid location of a facility such as this on the highway not only to avoid ribbon development, but because on the highway, it would not provide a local community identity.

186. Mr Biles' interpretation of the Melton East Structure Plan was that the "other activity centre" in the southern area was to the west of the subject land. That left no acknowledged "Activity Centre" of any level on the Applicant's estate near the Highway.

187. In Mr Biles' view, the Development Plan failed to satisfy the objectives and strategies of all relevant Local Planning Policies. It is well away from the Activity Centres specified for Melton East; it is not located adjacent to large areas of open space (being separated by a residences and a residential street from the nearest open space); it encouraged linear development along the highway. The use itself was not inappropriate to a Highway location; but putting it on the Highway would undermine the strategic objectives. Even if locating it on the Highway did not preclude another similar facility being located in the Town Centre, it could delay the establishment of what would then be a rival centre in the Town Centre.

188. Mr Biles agreed in cross-examination that serving both local and wider community needs in a Residential 1 Zone was acceptable, and that the proposed use could be made to work on the site. It was not contrary to the zoning. The site was inappropriate because the Planning Scheme prescribes where this sort of use should be located, and being able to operate a successful "one-off" use does not justify ignoring the strategy. Mr Biles considered that apart from the zoning, it was necessary to consider the highway location, access off the highway, scope for addressing interface issues, and accessibility of the site to the region.

189. Mr Biles stated that gaming could be subsumed into a fairly substantial Activity Centre, such as a centre that would have a cinema centre. Examples of gaming facilities in older centres seem to work fairly well. But the Planning Scheme seems to have a policy against moving gaming into the smaller strip centres.

190. Mr Biles regarded the Melton East Strategy Plan as a comprehensive document that clearly enunciates a vision for the Growth Area and sets out clear principles for the development of the Area. He went through the relevant provisions (which it is unnecessary to repeat here) and concluded that the Development Plan was not supported by the Strategy Plan in the location proposed. It was quite clear that clubs and entertainment facilities are directed to the sub-regional town centre, or at very least, the other nominated Activity Centres (the Community Centres).

191. Mr Biles referred to the Applicant's hotel permit, which, when developed, will provide entertainment facilities presently lacking in the area, but within the `Burnside Community Village". He regarded it as an underlying premise of the Melton East Strategy Plan that community facilities and centres should be located within the communities, rather than on their edges. He agreed that when the hotel was first permitted, it may have been some 500 metres from the Activity Centre.

192. Some local patronage is both sought and to be expected from the local community for a development such as this one. Clubs like this have been able to widen their constituency and breadth of activity. But Mr Biles pointed out that if it does gain local support in the Highway location, then it is likely to erode the effectiveness of the sub-regional and neighbourhood centres in serving their communities. If it is to cater to the local community, it should be in an Activity Centre. He emphasised the capacity of this proposal to erode the exhaustive strategic planning efforts over the last 10 years and undermine the objective of establishing accessible, mutually reinforcing community centres.

193. The purpose of an Activity Centre is to gather together "the sum of the parts". The Strategy Plan and Structure Plan both show an intention to build the community. The responsible authority needs to be firm about the way investment takes place in newly emerging communities. Despite the criticism of the exclusive role given to the Activity Centre by the old MMBW, very successful centres, scattered throughout the metropolis, have resulted. Being consistent and firm about the policy is the way towards success. If the Strategy Plan is flawed, by all means it should be reviewed, and new ideas embraced. But the current proposal beaks no new ground, and there is no justification for departure from the Strategy Plan. The first officer's report, for the meeting 12 August 1999, in Mr Biles' view took the better approach to the strategy: this proposal could be part of the community, but it should not be located on the edge of the Growth Area, outside a defined Activity Centre.

194. The reliance of the proposal on Highway exposure raises the issue of access to the proposed Western Freeway and Highway. Mr Biles referred both to the Strategy Plan's desire to avoid all direct access to the Freeway, and Vic Road's apparent intention to the same effect. The Development Plan proposal stated that Vic Roads had indicated that the exit to the Western Highway should be reviewed, which had been done. This did not appear on any plan accompanying the proposal to which the Tribunal has been referred.

195. Mr Biles concluded that the Development Plan was not consistent with the Melton East Strategy Plan, and provided only limited justification for departing from the Strategy Plan. The "alternatives" requirements in Clause 5.5 of the Strategy Plan (community facilities and human services) were not met, in that -

· The overriding goals and objectives of the Plan are not met - most importantly the desire to contain community and retail facilities within the specified Activity Centres;

· The proposal does not satisfy the goals in Section 3 of the Strategy Plan as it will fragment the sense of community and identity sought to be established by the Plan;

· the development has the potential to detrimentally affect the residential amenity of the existing residential subdivision immediately behind the subject site.

196. The Development Plan was considered unsatisfactory by Mr Biles in that it was poorly described in plan form, making it difficult to assess in terms of its effect on the amenity of neighbours. He explained how, in his opinion, it failed on all the mandatory requirements of Clause 1.0 of Schedule 1 to the Development Plan Overlay. When Mr Stokans asked where the amenity consideration came from in the Development Plan Overlay, Mr Biles replied that it as implied from requirements about setbacks and interface (relationship with adjoining lands).

197. When questioned on the degree of detail necessary for a Development Plan under Schedule 1, Mr Biles suggested that there must be some assurance that the proposal could be accommodated within the site proposed for it. He pointed out that there had been quite detailed analysis of the residential yield from the residential parts of the estate, and that the same short of assurances should be given.

198. Mr Biles agreed that not all the information required by the Development Plan Overlay Schedule would always be relevant to an application. But the relationships between uses and the circulation system had to be shown. Unless the responsible authority was given a reasonable idea of how the site worked, the layout may have to be changed at the permit stage, as the space for the circulation system has to be found.

199. In re-examination, Mr Biles illustrated his point by indicating that the service road - car park area scaled at 8 metres wide. And was presumably to accommodate a service road and angle parking, if both were located within the same "bubble". But it should be 11 metres wide to accommodated both. No circulation was shown. He assumed is was not after all to scale, although a scale was shown on it.

200. Mr Biles also pointed out that the residents of the emerging residential area could assume, on the basis of the Strategy Plan, that no large commercial entertainment facility would be located in this area. The size and nature of the facility were such that, in his view, its layout and design should be open to scrutiny by all parties who would be affected by its activities. What has been presented as the Development Plan is presently little more than a block diagram, telling the community very little about how the premises would operate and function.

201. Mr Whitney, who gave evidence for the Applicant, stated that it was his advice that led to this Application being made, as he had formed the view that the Development Plan was inadequate. There were three matters in particular that could not have been addressed adequately on the basis of the information which accompanied the Development Plan (acknowledging that the "bubble plan" was not the Development Plan), and that therefore could not have been given consideration as required by Clause 2.0 of Schedule 1 to the Development Plan Overlay. These were:

· The development and use of contiguous or adjacent land;

· The need for appropriate setbacks from residential areas;

· The orderly planning of the zone including the management of traffic, the provision of pedestrian ways and open space.

202. The information required by Clause 1.0 of Schedule 1 on the traffic, access, circulation and parking issues was needed, in Mr Whitney's view, because these were threshold issues that may prove to raise insurmountable problems. The way in which the Development Plan mixed "service road" and "car park" within the one area was of particular concern when trying to assess what was proposed. The access links from within the estate to the subject land had not been resolved (i.e. whether it would be necessary for residents on the estate to use their cars to drive out onto the Highway and then turn into the subject land, or whether there would be pedestrian or bicycle links and a vehicle access direct to the site from the north). Nor was it plain whether the east and west car park areas were integrated, or wether it was necessary top drive onto the Highway to move from one to the other. Although not all the required information would have been particularly helpful, some of it was needed to be able to assess whether the proposal could be fitted on the subject land.

203. The absence of provision for buffering between the proposed use and the new residential development to the east, where work had already started raised, in Mr Whitney's opinion, the issue of whether the site was adequate to contain all the necessary parking, access lanes, and also appropriate buffer areas. The adequacy of buffering of the residential area to the north, as far as the parking areas was concerned, was not established on the information provided. The threat that a club/hotel/gaming outlet can cause to residential amenity through car parking and noise problems has been well recognised by the Tribunal in previous cases. All the land concerned, including the subject land and the land which is now in course of development for residential purposes, has a residential zoning, and residential amenity must be considered in that context. Mr Whitney did not regard the proposed development itself as a buffer between the convenience store and adjoining residential development.

204. Mr Whitney accepted that the characterisation of the use as "Restricted place of assembly" seemed appropriate. He did not see much ground for distinction between a "Restricted place of assembly" and "Place of assembly", save that you had to sign in to gain access to the former.

205. With reference to the indication in the sales brochure that "initial community uses" would be established across the subject land, Mr Whitney stated that these are more likely to be anticipated to be uses such as kindergartens, child care, medical consulting rooms and the like, rather than gaming venues pitched as much to the broader community as at the local community.

206. Mr Whitney laid particular stress on the necessity to support the activity centres identified in the Melton East Strategy Plan. In his view, even if the Melton East Strategy Plan had not existed, the well established strategy for activity centres would apply to cause this proposal to be located within or on the edge of an activity centre, not separated from the activity centres and placed on the edge of the area which is defined as the locality within which the community supposedly served by the proposed facility will be growing as the new suburbs are settled. He referred generally to "Metropolitan Activity Centres - a Policy Statement" published by the Ministry for Planning and Environment in April 1989. The policy fundamentals that he described are readily found throughout the present Planning Scheme, and he referred in particular to Clause 14 and 17 of the State Planning Policy Framework for Activity Centre policy.

207. Mr Whitney did not regard the material accompanying the Development Plan as a "comprehensive justification" for an alternative proposal under the Melton East Strategy Plan. He regarded the Macro Plan report as providing some support for "need" and net community benefit, but little (if any) to support the location or a basis for departing from the principles of the Melton East Strategy Plan. In his opinion, any community benefits would still be available if the development was located in or adjacent to an Activity Centre, in accordance with the Melton East Strategy Plan.

208. The proposition that the development needed the high profile Highway frontage was not supported by Mr Whitney. He stated that sporting clubs with gaming facilities are successfully located in inconspicuous sites. And there are other types of commercial use that would prefer a highway location, which the Strategy Plan places in the Town Centre. If the Council acts on the same basis it has considered adequate in this instance, it will not have a Town Centre. The Macro Plan report assumed that this site is the only high profile location; but the Town Centre is going to become high profile location. This is a matter of time. He did not regard it as a matter of serious inconvenience to the communities in the Melton East Growth Area if they did not have the proposed facility available to them until 2005. The Macro Plan report indicated that the Growth Area would require social and entertainment facilities as the major shopping centre in the Town Centre is planned for 2003 (see p.18). There was no reason why the non-commercial components of the Town Centre could not be started before then. Meanwhile, the next nearest hotel with gaming facilities was located about 5-10 minutes' drive away from Caroline Springs.

209. While the Council officer's report of 29 November 1999 set out which factors were relevant and what the objections were, it did not show the officer's opinions on these factors, and there was no discussion of the objections as against the proposal.

210. Mr Montebello had submitted, and Mr Osborn agreed, that to place the proposed use in an Activity Centre identified in the Melton East Strategy Plan could attract the prohibitions on gaming in a shopping complex when the shopping centre was developed enough to be a target for inclusion in the list of specified shopping complexes or strip centres (under Clause 19.02-1, the State Gaming Policy).

211. Accepting that there was a risk that gaming would not be permitted in a shopping centre, Mr Whitney pointed out that there would be nothing unusual about placing a sporting club near an oval, quoting Optus Oval at Princes Park for a comparison. This leaves open the potential of Brookside as a suitable location in accordance with State and Local policy. Mr Whitney did not agree that the presence of schools in the same Activity Centre excluded gaming and alcohol service from being established there. The key site in Brookside was across the road from the oval, and had a relationship with sporting facilities that may provide an opportunity for the sporting club proposal.

212. Similarly, arguments that the development would act as a community focal point were without merit, and would seek to undermine the objective of creating Activity Centres with an appropriate mix of facilities. While acknowledging that the new VPP Planning Scheme does not raise policy statements to a level where they have to be analysed line by line for literal compliance, Mr Whitney did not regard the material lodged with the Council in support of the proposal as the "comprehensive justification" required for an alternative approach to the Plan and its strategic principles to be acceptable under the Melton East Strategy Plan.

213. Mr Whitney explained the concept of an "Activity Centre" as having a general theme of aggregating uses and encouraging clustering, not just for shopping centres and District Centres. The advantages to be gained from aggregating all sorts of uses are the reason why we have an Activity Centres strategy. Even if there had been no Melton East Strategy Plan or Structure Plan, Mr Whitney was of the view that it was still a fundamental (State) policy that you should endeavour to aggregate commercial uses, and the subject proposal should be aggregated with other uses.

214. If this proposal were accepted as complying with the strategic principles for an Activity Centre in the Melton East Strategy Plan, Mr Whitney stated that he was not satisfied that all residents would have access to it.

215. In response to Mr Montebello putting the proposition that the proposed facility would be clustered with the "supermarket" or convenience store, the petrol filling station and the CFA depot which are proposed for the corner site, Mr Whitney was of the opinion that a convenience store of the size proposed, and the other proposed uses, could not be considered to be an activity centre for the purposes of the relevant strategies and policies. It is usual to have 6 to 7 shops in a middle ring suburb. The convenience store and petrol station could not be considered a concentration of uses. Nor would it be expected that gaming would be established as a "community" use before a kindergarten or medical centre. This proposal would not exclude other types of community facilities elsewhere in the Growth Area, but it would exclude them being established on this site.

216. If the proponent wanted to call the site part of a Category 4 Activity Centre, the plan should have showed how all the parts of the Activity Centre fitted together. There is no indication, for example, of whether the car parking was to be shared between the supermarket and the sporting club.

217. Mr Stokans called Mr Milner to give evidence on behalf of Delfin. Like the other planning witnesses, he went through the provisions of the State Planning Policy Framework, Municipal Strategic Statement and Clause 22, and the Melton East Strategy Plan. His focus was on two questions which he had been asked on behalf of his client to answer for the purpose of the hearing:

· Does the approved Development Plan satisfy the requirements of Schedule 1 of the Development Plan Overlay?

· Is the approved Development Plan consistent with the provisions of the Melton East Strategy Plan?

218. Mr Milner stated that the information required by Clause 1.0 of Schedule 1 to the Development Plan Overlay was confusing in that there was no requirement for precision about the proposed buildings, but on the other hand, the type and species of all the plants in the proposed landscaping had to be stipulated. He put this down to some of the old provisions of Clause 124A-5 of the old Melton Urban Development Zone having been applied to the new Development Plan Overlay without respecting the fundamental changes in the planning process and the intended outcome of the new format scheme. This certainly appears to be the case.

219. It may be that where the Development Plan is not being used as a site specific control, the inappropriateness of the mix of information required to be addressed under Schedule 1, to which Mr Milner also referred, is not so pronounced as it is in the present case. But in any event, he did not agree that the technical shortcomings in the information provided materially impacted on the important strategic consideration of whether the Development Plan met the purposes of the Development Plan Overlay. He considered that any omissions could reasonably be addressed through the permit requirements.

220. It was Mr Milner's view that the Development Plan Overlay was intended to apply to a number of sites which might be in multiple ownership, spread over a relatively extensive area (but smaller than the area that a Local Structure Plan might apply to) and might be developed over an extended timeframe. He implied this from the wording of Clause 43.04-3. He considered that the terms of the requirements for the content of a Development Plan were such that -

"......it is reasonable to expect that a complying Development Plan would be schematic, not showing hard edges to buildings and proposed floorspace, and showing car parking layouts in relation to buildings and boundaries rather than in terms of the minutiae of number of spaces, aisles, widths and kerbs."

221. Mr Milner was of the view that it was misuse of the Development Plan Overlay to use it as a site specific control; and also that Clause 1.0 to Schedule 1 ought to be redrafted to clarify its application and the appropriate information to be supplied.

222. With respect to the Strategy Plan, Mr Milner considered that the Applicant had misunderstood the intention and application of its strategic planning and the provisions. He considered that the Development Plan was consistent with the Strategy Plan, in that:

· The strategic planning process and the basis of policy is directed to the achievement of objectives not on a prescription of fixed and rigid outcomes.

· The Melton East Strategy Plan provided direction on the location of a hierarchy of centres for the Caroline Springs/Burnside Estates, but did not specify or spatially note where local/corner store Activity Centres would be located.

· The proposed sporting club would be co-located in conjunction with the approved local/convenience shop Activity Centre.

· The strategy explicitly provides for the location of Activity Centres in alternative locations to those shown on the plans in the strategy report.

223. Mr Milner pointed out that the Melton East Strategy Plan only showed three stages of a 4-stage hierarchy on the Activity Centre framework plan. The local "corner shop" Activity Centres were not shown on the Strategy Plan; hence the contention as to whether the proposed community sporting club, adjacent to the convenience store and petrol station, met the objectives of the Strategy Plan.

224. Mr Milner emphasised the "alternatives" provisions in the Melton East Strategy Plan. The Indicative Plans in the Strategy Plan, Mr Milner explained, showed one way to comply with the Strategy Plan. But it was not the only way. It was always possible to go to the alternatives provisions and demonstrate compliance with the objectives. These are very vague. It is not necessary to meet all of them to achieve compliance.

225. Referring to the categorisation and hierarchy of Activity Centres, Mr Milner stated that the Strategy Plan indicated where some community and recreation facilities might be located; but it was neither prescriptive, comprehensive nor exclusionary. The Community Development strategy did not deal with the siting of sporting clubs in a directive or prescriptive manner. This proposal would assist in the early provision of entertainment and social facilities, that would otherwise have to wait until these was an appropriate level of activity in the Town Centre. Development of the Town Centre was planned to commence in 2005.

226. Mr Milner did not consider that community facilities were to be confined to the Town Centre. He regarded the subject land as the most accessible site in Caroline Springs. It was accessible enough to the residents, but also captured passing trade. It was a facility for the whole Growth Area. The membership base, extending well beyond the local area, made the proposed club more suitable to a peripheral location, where it was more accessible and exposed to the broader community, and away from the larger retail centres in the heart of the Caroline Springs estate. The Highway location also, in his view, was beneficial in creating a buffer for residential areas to the north, provided maximum exposure to potential patrons, and promoted the profile of the three clubs. He referred to the Melton East Strategy Plan reference to community facilities being located so that residents from adjoining neighbourhoods could use them.

227. The corner shop and petrol station site was identified by Mr Milner as being in the local shop tier of the retail hierarchy. He agreed with Mr Pitt that this proposal was not ancillary to the shop, and that on one view, it may be a higher order recreational and leisure facility.

228. In support of the Highway location, he quoted the Strategy Plan with respect to community, recreational and retail facilities establishing along east-west activity and movement corridors, called "seams", which would provide high levels of accessibility while protecting amenity.

229. "Seams" are identified on the Land Use Strategy Plan. In my view they are internal to the estate, being east-west corridors based on the internal through roads. The Highway is not a "seam", but is instead identified as a "main edge" to the neighbourhood, in the Neighbourhood Structures strategy (p.51). Recognition of this role is a "key design principle" for the physical structure of neighbourhoods. It is the secondary order roads that are to be the "principal focus for neighbourhood activities and focal points".

230. Mr Milner considered that the proposal had met the requirements for acceptance as an "alternative strategy". He saw no reason why the proposal would negatively impact on the structure of Activity Centres as envisaged in the Strategy Plan, not being a retail development, and given that there was provision for a sub-regional scale of facility. It would be an acceptable outcome in his view for there to be community and recreation facilities adjacent to all Activity Centres in the hierarchy, provided that they did not undermine the role and function of the higher order centre. He cited the example of Burnside, where permits had been issued outside the Activity Centre for a hotel, office, motel, two takeaways and a "transport city".

231. The version of the Indicative Activity Centre Framework plan from the Melton East Strategy Plan 1997 that Mr Milner attached to his report was not identical with the same plan as shown in the copy of the Melton East Strategy Plan tendered by the Council. The difference lay in the siting of a Neighbourhood Centre to the north of the Highway, fairly central between Caroline Springs Boulevard and Westwood Drive, just south of the first east-west sub-arterial road north of the Highway. In the Council's version of the Strategy Plan, there is an "optional alternative Neighbourhood Centre" located just to the north of the sub-arterial, close to its intersection with Caroline Springs Boulevard. This better reflects the "clustering" strategy, and is consistent with the location of an "other centre" (below community level in the hierarchy) in the Land Use Structure Plan at p.11 of the Strategy Plan. The version of the Indicative Activity Centre Framework attached to the officer's report of 29 November 1999 is the same as the plan shown in the Melton East Strategy Plan as tendered, and I accept that that is the adopted version. Both centres shown at the two sites were at the same level in the hierarchy, and the effect of Mr Milner's evidence is not altered.

232. Mr Milner agreed that the Westwood Drive Activity Centre included the Mixed Use Zone to the south and west of the Business 1 Zone, in which a number of permits had been issued for a range of facilities, as well as the Business 1 Zone itself. He agreed it was an Activity Centre with a retail component, which could accommodate gaming.

233. Although Mr Milner stated that the sporting club would help create a sense of cultural identity and facilitate establishment of relationships and networks between new residents of Caroline Springs and the broader community, he did not demur when Mr Pitt put it to him that this made the identity of Caroline Springs dependent on football clubs with their bases remote from this area.

234. Mr Milner tendered his notes of how the proposal measured up against the objectives, strategies and policies of the Planning Scheme and the Melton East Strategy Plan. These set out the policy or criterion and placed beside it a one-word assessment of "consistent" or "N/A", or a brief comment such as "can be satisfied. I did not find this analysis very helpful, as it stated that consistency was achieved on such things as whether the retailing hierarchy set out in Clause 21.04-2 had been adopted, when the real question was whether the proposal was consistent with the hierarchy, and that the proposal was consistent with the strategy of clustering community and commercial activities around major intersections, without referring to the assumptions that would have to be made in order to achieve that result. Mr Milner told Mr Pitt that no structured analysis of compliance with the State or Local Planning Policies or zone purposes had been provided to the Council before it made its decision.

235. In answer to Mr Pitt, Mr Milner stated that the approved Development Plan comprised the endorsed copy of the Delfin text, which also contained the Macro Plan Report and the bubble diagram. It may be inappropriate, however, to interpret every word of the Macro Plan Report as part of the Development Plan that a future permit application would have to comply with - like eg which football clubs should be involved with the sporting club. The role of the Development Plan was to set parameters within which an "exempt" permit application was assessed. The responsible authority was entitled to rely on the Delfin text to show e.g. the relationship between the subject land and adjoining land. This shows how direct access from Caroline Springs Boulevard can be provided, to avoid the need for residents to drive onto the Western Highway to access the sporting club. However, Mr Pitt pointed out that the Delfin text stated that the details of proposed access, egress and parking arrangements would be included in the Development Plan, which was a future document in the approval process when the Delfin text was prepared.

236. Mr Rumbold had no hesitation in adding together a petrol station/convenience store of 700 sq.m. and a sporting club of 1,700 sq.m. to produce an Activity Centre of 2,400 sq.m., although this was considerably less than the proposed minimum size for a neighbourhood centre. If the 2,000 sq.m. floor area figure is used (as it was by the Council, rather than the 1,750 sq.m. building area quoted in the Macro Plan Report) the floor area is nearer, but still a bit on the low side for an Activity Centre intended to serve the function of a Neighbourhood Activity Centre.

237. He acknowledged the strategic role of the Town Centre as the focus of community activities, providing retail, educational and civic facilities. But according to his firm's assessment of potential for retail facilities in April 1998, the retail floor space in the Town Centre will not be established until about 2005. Development will then proceed in stages, ad the population grows and the retail facilities become sustainable. But it would be inappropriate and commercially unrealistic to place the sporting club in the Town Centre before any retail component was developed there. He would not put a club of this size in Stage 1, but possibly in stage 2 - perhaps some 10 years off.

238. In Mr Rumbold's view, there were too many neighbourhood centres and local shops proposed in the Melton East Strategy Plan. Five centres at 3,000-3,500 sq.m. of retail floor space would not accommodate a major supermarket, and it was difficult to see significant tenants attracted to them. The number proposed was not commercially realistic; the and number and precise location of such centres should be determined by market forces. The neighbourhood centres and local shops would be better concentrated in the larger retail centres, preferably the Town Centre. He apparently saw no contradiction in also supporting the proposal by reference to the convenience store Activity Centre location.

239. In his opinion, establishing the sporting club in the proposed location would not jeopardise the retail hierarchy of the Melton East Strategy Plan, and would meet the Strategy Plan's objectives.

240. Mr Rumbold appears to recognise a need to review the Activity Centres aspect of the Strategy Plan. That is not a task for the Tribunal in this Application.

241. In Mr Rumbold's view, the economics of operating clubs was turned around in the early 1990s by the introduction of gaming machines. He now considers passing trade as critical. 50% of the income of a club comes from gaming. He would be looking for in excess of 50% of trade from beyond the base trade area. If the club were located in the Town Centre, he anticipated that only 10-15% of business would originate from beyond the trade area.

242. He agreed that the Melton East Strategy Plan does not accommodate the proposed development, which is unique. Its "trade area" was larger than the area identified by Macro Plan. Without the highway exposure, this integrated facility is unlikely to be replicated elsewhere in an Activity Centre. He also stressed the importance of having a competent operator ready to take on the club.

243. Mr Rumbold's description of the role of clubs distinguished between sporting clubs and community clubs. He emphasised extensive car parking and highway frontage in the case of community clubs, which feature extensive dining and bar areas, function and reception rooms, gaming, and often bowling, squash, snooker, and the like. The sporting clubs focussed on the particular sporting facility that the represented, and the community served by them was both local residents and employees and team supporters. Both types are commercial club operations.

244. Despite this distinction between community and sporting clubs, this proposal is to be both a community and sporting club. A full range of facilities and integration was necessary to support the range of activities, and gaming to support the cost of the facilities. It was unlikely in Mr Rumbold's view that the format, scale and range of facilities that had been proposed would be viable at all in the Town Centre. He does not agree that a facility like this would be likely to establish in the Town Centre when commercial development gets under way there in 2003.

245. Mr Rumbold agreed, however, that there was no reason why a 400 seat restaurant, for instance, should not be provided in the Town Centre. It was the other facilities, such as gaming, that would be lost if the Highway site was not available. If the club does not proceed, the market will respond with other facilities such as restaurants.

246. He had addressed the particular proposal described in the Macro Plan report, not sporting clubs generally. He agreed it was possible that many sports clubs operated successfully off main roads. He had not collected evidence to show whether his examples of successful clubs in relation to highway sites were typical. He had no survey evidence that a highway site was required; but was able to state that hid Melton Country Club example was very superior commercially.

247. Mr Rumbold did not consider the fringe location a problem for Caroline Springs residents. In his view, they would come to the site anyway. The highway location was not intended to benefit Caroline Springs, but to attract people from other areas.

248. Mr Rumbold agreed with Mr Pitt that this was not the sort of facility that would be sought by the main "young family" demographic in this first home buyer market. It would be used more by older people. While the gaming demand would be weak, the social side may be strong among the younger people. But gaming is very important to the success of this sort of club. The gaming subsidises the activities of the members.

249. In commercial terms, Mr Rumbold agreed that the club would be separate from the convenience store next door.

250. The Council took the view that the "compliance" issue was in the nature of a technical legal point, and that the real substance of the Application lay in the issue of whether the Council had properly taken the Melton East Strategy Plan into account when it made its decision on the Development Plan.

251. Although the strategies for East Melton in Clause 21.04-2 spoke of approval of the Melton East Strategy Plan in the future tense, in its "implementation" section the Clause states that "All development plans shall be prepared in accordance with the strategic principles outlined in the Melton East Strategy Plan (Revised) 1997." Mr Montebello explained that the Council had adopted the Melton East Strategy Plan (Revised) 1997 by simple resolution. The copy of the document tendered to the Tribunal does not in fact use the word "revised" in its title, but is merely the Melton East Strategy Plan, June 1997. It was not disputed that this was the relevant Strategy Plan for the purposes of the Planning Scheme policies.

252. The earlier officer's report on the Development Plan, dated 12 August 1999, made the bald statement that "the development of the land for commercial purposes as proposed by the Development Plan is inconsistent with the Melton East Strategy Plan", although it did go on to record that the Plan made allowances for alternatives to the planning framework contained in it where a comprehensive justification could be provided to the Council. The officer's recommendations were that the Development Plan be refused, the relevant grounds being that it was "contrary to the Local Planning Policy Framework in that the Development Plan has not been prepared in accordance with the strategic principles outlined in the Melton East Strategy Plan (Revised) 1997; and that it was inconsistent with sound strategic planning principles as contained on the Melton East Strategy Plan (Revised) 1997, Local Planning Policy Framework and Development Plan Overlay Principles".

253. Mr Montebello submitted that the main difference between the Development Plan in the form in which it had been sent back for further discussion on 12 August and the new version approved at the meeting on 29 November 1999 was that the new Development Plan showed the land to the east of the subject land as being for residential use instead of commercial use. A favourable officer's report resulted, and the development plan was approved.

254. There are differences in the terms used to refer to the Melton East Strategy Plan in the Planning Scheme. Mr Montebello drew attention to key references:

Implementation: All development plans shall be prepared in accordance with the strategic principles outlined in the Melton East Strategy Plan (Revised) 1997.

Local policy for Melton East is: "Ensure that Melton East is developed in an orderly manner .........in accordance with the model outlined in the Melton East Strategy Plan Review (1997).

Before deciding to approve a Development Plan, the responsible authority must consider... The provisions of the Melton East Strategy Plan and municipal planning policy.

255. Mr Montebello submitted that the Council had clearly considered the provisions of the Melton East Strategy Plan when it made the decision to approve the Development Plan.

256. The officer's report refers to the requirement, under the heading "Statutory Planning Matters". A number of provisions of the Melton East Strategy Plan were set out or referred to in the report. The relevant land use goals, objectives and strategic principles of the Melton East Strategy Plan were set out. It was stated that alternative land use and development structures supported by comprehensive plans and documentation were contemplated by the Melton East Strategy Plan itself, and the "alternatives" provision in the retail framework was quoted in full. Reference was made to the location of two Activity Centres south of Kororoit Creek, one of which comprised the convenience store and petrol station on the site next to the subject land. The officer commented "Hence, while the developer has deviated somewhat from the MESP, only two centres will be developed south of the Kororoit Creek as suggested by the MESP".

257. Mr Montebello further submitted that the Development Plan was in accordance with the strategic principles of the Melton East Strategy Plan. Further, having regard to the various approvals given to plans (admittedly non-statutory plans) which identified the subject land as a future commercial site, the Applicant's claim that commercial facilities were not contemplated on this site should not be accepted.

258. In support of his argument that the admitted "technical non-compliances" with the requirements for a Development Plan as set out in Schedule 1 to the Melton East Strategy Plan did not justify a declaration of invalidity, Mr Montebello went through them. The requirements have already been listed above. Mr Montebello submitted that a number of them were irrelevant, and that the verbal description of what the proposal included, the layout appearing on site plan attached to the Macro Plan Report, the relationship to the adjacent uses and the road network, including the access and egress, were adequate. He conceded the bicycle network, "open space", drainage reserves, the layout of the car parking and loading bays and access to them, and management of vegetation to minimise fire hazard are not shown, and that this amounts to technical non-compliance. However, he submitted, having regard to the role of a Development Plan as contemplated by the Planning Scheme, it was reasonable for the Council to expect that additional details of the proposal would be provided in the context of an application for the required planning permit.

259. As regards the nature and role of a development plan, Mr Montebello adopted the opinions of Mr Milner set out in Part 5 of his report dated 27 March 2000.

260. Regarding the mix of information required by the new Development Plan Overlay, Mr Montebello submitted that a transcription error had occurred between the old and new formats. He asked why a Development Plan should require loading bays, for example, to be shown. The role of the old Development Plan as the authorising document for the development has been replaced under the new Planning Scheme; but the information requirements have not been separated into those that could be dealt with in the permit application that is now required as well as a Development Plan.

261. Mr Montebello submitted that the approved Development Plan was sufficiently in compliance with Schedule 1 of the Development Plan Overlay; and with a relatively minor adjustment, it could meet the specific requirements of Schedule 1. A modification to do that would be preferable to a declaration that the whole thing was invalid.

262. The Strategy Plan had been departed from in a number of ways, for instance by the movement of the Brookside Village site in relation to the main internal roads. The strategic thrust, however, was that there should be no more than two activity centres south of Kororoit Creek, and the Council had accepted that this proposal was for the small one, although he accepted that it was not really an Activity Centre. If it were, the policy on gaming in shopping centres might become relevant. Mr Montebello submitted that the policy of separating gaming facilities from shopping centres was likely to be extended to apply in due course in the Town Centre, creating the argument that you had to locate the gaming facility in or on the edge of the Town Centre because of its size, but then it would be impossible to get a permit for gaming.

263. The small supermarket and petrol station fell into the "category 4" Activity Centre, which are allowed for but not shown in specified locations on the Strategy Plan framework. Mr Montebello did not argue that it was essential to have a "Restricted place of assembly" located with a milk bar; but if this justification was needed, the activity centre type use has been approved on the Highway corner, and supports the location of the proposed sporting club.

264. Although the proposal is for a commercial use, Mr Montebello submitted that a "place of assembly" was not necessarily identified as an ordinary commercial use. The proposed use was essentially the same as the use permitted on the Burnside site for a hotel. The rules about access to gaming facilities would mean that a right to enter was available to anyone who lived over ascertain distance from the site, so that "membership" was not necessary for access to the "club" premises.

265. Finally, Mr Montebello submitted that the preparation of an Amended Development Plan by Delfin served to demonstrate the futility of the declaration sought by the Applicant. If the Council were able to approve a new Development Plan immediately on receiving an adverse decision, and already had a new plan before it, a declaration would serve no useful purpose other than to frustrate a valuable project by holding it up.

266. Mr Pitt submitted that within the objectives of the Planning Framework, the scheme of the policies was clearly that there is to be a strategic planning exercise for an area, (rather than a single site) to be included in a Development Plan; and the Development Plan is required to have a sufficient level of detail to enable the relevant impacts of the development on the Melton East Strategy Plan area to be determined. Where those matters have been adequately defined and approved, they are not required to go through a planning permit process for individual sites. No new planning permit requirements were created by the Overlay; the zone provisions determined whether a permit was required. It followed that depriving third parties of normal rights under the Zone by the Overlay may only be effected by strict compliance with the mandatory requirements of the Schedule to the Development Plan Overlay. Both the Council and Delfin had conceded that the Development Plan did not meet all the mandatory requirements.

267. It was acknowledged that, other than the fact that the respondent had carried out its own planning on the basis of compliance with the required level of detail, the absence of the required detail from the Development Plan submission would not injure the respondent.

268. Mr Pitt tendered the Panel and Advisory Committee Report on the Delfin and Dennis Projects Pty Ltd submissions, which were followed, and the results of which went into the Planning Scheme. He submitted there was no room to look behind the Planning Scheme under the new VPP format scheme; the relevant policies were in it.

269. Mr Pitt acknowledged that absence of an express provision for consultation in respect of approval of a Development Plan does not mean that there need be no consultation, if natural justice requires that persons affected by given an opportunity to make submissions which must be considered by the responsible authority: No 2 Pitt Street Pty Ltd v Wodonga Rural City Council (1993) 3 VPR 329, Romanella v City of Melbourne (1986) 4 AATR 363 and FAI Insurances Ltd v Winneke [1982] HCA 26; (1981-2) 151 CLR 342. He did not concede that prior consultation with affected parties before the making of a decision to approve a Development Plan had any impact on the requirement for strict compliance with the mandatory requirements. He submitted that the failure in compliance with Clause 1.0 of Schedule 1 to the Development Plan Overlay was sufficient to justify the declaration of invalidity.

270. In relation to the substance of the Applicant's objection to the Development Plan, Mr Pitt submitted that the combination of uses comprising the approved convenience store with 800 sq.m. of retail space and the petrol station, and the "community sporting club" as described, could not be considered to a an Activity Centre of the kind contemplated by the State Planning Policy Framework, and would substantially impact on the timing and extent of provision of the range of Activity Centre facilities in designated Activity Centres contemplated by the State Planning Policy Framework and Local Planning Policy Framework. The Applicant did not object to the convenience facility, which would operate like a general store, incorporating the petrol station; but Delfin's proposal for the subject land was nothing like a local shop or facility ancillary to a local shop.

271. It was submitted that this facility was a "major entertainment development" for the purposes of Clause 17.01 of the State Planning Policy Framework. Although it had some characteristics of a "Place of assembly", the dominant aspects of hotel, restaurant and gaming use were part of the "Retail Premises" use definition. The Activity Centres policy must be given effect to.

272. If the "community sporting club" was meant to be actually a facility for the three clubs mentioned in the Macro Plan Report, they were located far distant from Caroline Springs. Williamstown Football Club was located some 20 kilometres away, and the other two Clubs some 15 kilometres distant. The proposed development itself, Mr Pitt submitted, was clearly a facility of regional size and role, which in a planned growth area could be a major anchor of a regional nature. It should therefore be located in an Activity Centre which has a far greater role than that of a local shop, in accordance with planning policy. Appropriately located, it could make a major contribution to making a centre a focus of the community, because of the intensity of the activity and opportunities for multiple use of infrastructure that could be provided.

273. On the other hand, to locate such a facility remote from an Activity Centre which had an appropriate role in the hierarchy would be detrimental to the implementation of planning policy in the Melton East Growth Area: Prudential Projects Pty Ltd v Shire of Melton (AAT Appeal no.1996/9831 unreported, determined 10 January 1997).

274. Mr Pitt submitted that there were a number of alternative locations within the Growth Area for such a facility, with the net community benefits contemplated by the Activity Centre policy, even if it provisions was slightly delayed. Against locating it in a planned Activity Centre, there was only the assertion that it needed exposure to passing trade.

275. The strategic function that such a facility was intended to have should be located within the Growth Area in association with an appropriate Activity Centre, so as to become a local community focus. Approval of this Development Plan was contrary to the planning policy context applying to the site.

276. Mr Pitt agreed that the prohibition on gaming in shopping centres was (or was likely to) relevant, but submitted that the gaming and shopping centre policy was generally that gaming should be permitted in centres other than the ones the Planning Scheme identified. There was no general policy against locating a gaming facility in an Activity Centre. Nor was it true that an Activity Centre is a shopping complex; a hotel next to a Business 1 Zone must, it was submitted, form part of the Activity Centre.

277. The size of the Business 1 Zone on the Burnside land, and the details for its use as set out in the Planning Scheme, Mr Pitt submitted, showed the size and nature of the Activity Centre where it would be appropriate to locate a higher order facility of this nature. Alternatively, the education focus given to the Neighbourhood Centre now identified as Brookside would be a suitable site for a genuine sporting club; the facility could be used to underpin the ovals and other actual sporting facilities located in the Brookside Activity Centre. Most of the area is still available to be considered in the planning of major facilities.

278. Mr Pitt submitted that there is no evidence that the Council discussed the Brookside location at all. Nor the effect of the proposed location on social interaction within the Growth Area. Nor was there any real discussion on what the effect on the Activity Centre hierarchy would be of placing a facility of this nature next to the "corner shop" Activity Centre on the Caroline Springs Boulevard/Highway intersection.

279. The Prudential Projects Pty Ltd case dealt with a site at the north end of Gourlay Road (now Caroline Springs Boulevard at the south end), on the corner with Melton Highway, in the new suburb of Hillside. The decision was made at the time when there was a Draft Melton Strategy Plan 1993. The proposal was for a large commercial development, comprising two family restaurants, a petrol station and carwash, and a retail plant nursery, on a site that was diagonally opposite the Community Activity Centre set out in the Draft Strategy Plan. The Activity Centre site at that stage had permits only for a convenience store and petrol station, and was the subject of a rezoning proposal to take the identified Activity Centre site into a Restricted Business Zone. Several commercial developments had been allowed along the Highway frontage within about 3 kilometres of the subject land. Melton Highway was described as an alternative route to Western Highway, serving a similar function.

280. Discussion of the planning controls revealed that the Draft Melton Strategy Plan 1993 contained provision for consideration of alternative land uses in similar terms to the present Melton East Strategy Plan. The strategic role of Community Activity Centres was described in broadly similar terms to the present Melton East Strategy Plan, although the less detail is given in the approved Strategy Plan about the mix of shops to accompany the supermarket.

281. The Council, in presenting its case to the AAT, had relied on the nature of the proposed uses as "providing service type uses to travellers along Melton Highway", rather than to local residents. It argued that the catchment for the proposal fell outside the catchments envisaged for the Activity Centre under the Strategy Plan. Arguments that the development would provide a service to the local community which as yet had no accessible community centre, and that the passing trade would underpin its viability, also appeared as they have in support of the current Development Plan proposal.

282. The Tribunal determined (at p.19) that there was-

"...no reason to suggest that uses which seek a highway location - thus benefiting from a passing as well as local trade, should be regarded as falling outside of the retail hierarchy established in the Draft Strategy Plan. A highway location is an opportunity which any retailer would be wise to have regard to particularly in a newly developing area. It is clearly one of the reasons for siting community activity centres on main roads."

283. The Tribunal concluded (at 20) that the location of the proposed development and the mix of uses was such that it would probably take both passing and local trade away from the approved Activity Centre. This would affect the viability and thus the timely development of the approved Activity Centre. The AAT recognised a social need for the developing suburb to be more conveniently serviced for retail and convenience goods and community services; so that to jeopardise the establishment of the Activity Centre would be a poor planning decision and not in the community's interest. The proposal was accordingly rejected.

284. The AAT also referred to two previous decisions concerning proposals in the area in which the Tribunal had given weight to the Draft Melton Strategy Plan. In Dalglen Nominees Pty Ltd v City of Hume (AAT Appeal no. 95/16204, unreported) the Tribunal had referred to the benefits derived by the community who live, work and conduct business in the Growth Area from the planned approach to its development, concluding that it was "of vital importance to give significant weight to comprehensive strategic plans when they have been implemented".

285. Mr Pitt submitted that the complete change in the officer's recommendation following the discussions held with Delfin that resulted in the deletion of the word "commercial" from the Development Plan on the site to the east of the subject land did not disclose a sufficient reason for the reversal. The absence of third party rights meant the hurdle of obtaining approval for a Development Plan should be higher than it would be if there was a right to make submissions.

286. The justification for the proposal being located outside the Town Centre was merely that Delfin wanted to go ahead with it now, and not to wait for 3-4 years until the development of the Town Centre started.

287. Messrs Osborn QC and Stokans submitted that their client's proposal was properly characterised as a "Restricted place of assembly", which was the characterisation agreed to by the Council, and which was accepted by the planning witnesses. They submitted that, as such, it was not classified as a "retail" use. Such uses have the capacity to help establish community identity and facilitate provision of services which would not otherwise be available. They are able to offer more in scale and quality to the local community if they also serve a broader area. But, it was submitted, they are not easily "pigeonholed" in strategic planning terms. They cover a broad and flexible category.

288. Both the responsible authority and the Minister for Planning of the time had regarded the proposal as acceptable. The Minister is not a referral authority in relation tot he decision to approve the Development Plan under the new Planning Scheme. The former Minister had, however, written a letter dated 20 July 1999, a few days before the commencement of the new VPP scheme, to the Council referring to a requirement that his views be sought in relation to a Local Structure Plan under the old Planning Scheme. A copy of this letter was tendered by Mr Osborn. stated:

"The proposed development will represent an important addition to the community facilities available to the residents of Caroline Springs, as well as the wider region. The location is considered appropriate, given its proximity to the intersection of Caroline Springs Boulevard and Western Highway, as this will be readily accessible for local and regional users.

The development will also help to protect the residential area from the effects of traffic on the Western Highway."

289. This letter, as can be seen, contains no reference to the Melton East Strategy Plan, or to the policies for the area which had already been adopted by the Council and were shortly to be gazetted as part of the new Planning Scheme. There is no apparent consideration of the strategic context. The Minister was clearly referring to the original proposal, not the final version where the land east to the subject land was to be designated as "residential", so that it would be exposed to the effects of the Western Highway traffic, and also of a large entertainment facility which it has been mentioned may operate for very long hours, if not 24 hours as day. In any event, the response appears to be related to the development as such, rather than the role of a proposed Local Structure Plan in the West Melton Growth Area.

290. Turning to the fundamental issue, Delfin argued that the Development Plan had substantially complied with the requirements of Schedule 1 of the Development Plan Overlay; or alternatively, that it was open to the responsible authority to regard it as acceptable having regard to the clear framework for development provided, and the necessity to obtain a permit for final detailed approval.

291. With respect to the requirements for a Development Plan in Clause 1.0 of Schedule 1, it was submitted that the old dichotomy between mandatory and directory requirements was no longer god law. Delfin relied on a passage from the majority judgment in the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (paras 91-93), part of which states:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition......

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. ........A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to `the language of the relevant provision and the scope and object of the whole statute'."

292. It was submitted that no material objective of the development plan process had been defeated by the deficiency of detail identified by Mr Milner. The Planning Scheme did not necessarily intend that a Development Plan should be invalid by reason of failure to fully identify plant species, for example. While I can readily accept that as true of the example given in the present case, the significance of the information in my view has to be considered in the light of what is needed to enable the Council to come to its decision under Clause 2.0.

293. In addition, the respondents relied on Clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, under which:

"The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

294. The Tribunal also retains a discretion as to whether justice would require the making of a declaration of invalidity on the ground of minor non-compliances.

295. Turning to the statutory significance of the Melton East Strategy Plan, it was submitted that what the Council had to do was "consider" the Melton East Strategy Plan and Municipal Planning Policy before it made its decision; and "consider" does not mean "give effect to": Norvill v Chapman [1995] FCA 1726; (1995) 133 ALR 226 per Black CJ at 237-8.

296. His Honour there dealt with a requirement that a Minister "consider" both a report, and any representations attached to the report. This "consideration" requirement was a provision compliance with which was found to be a necessary step in the exercise of the Minister's decision-making power. Black CJ looked to the Oxford English Dictionary definition, which was "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of". He concluded that "to consider" a representation involved "an active intellectual process directed at that representation". The other members of the Court, Burchett and Kiefel JJ, came to similar conclusions. There was no suggestion that the Minister was bound to act on any or every aspect of the document he was required to consider; only that it be properly considered before the decision was made.

297. It was submitted that the Council had had before it the officer's report of 29 November 1999, focusing attention on the Melton East Strategy Plan, and also the objections made to the proposal by the Applicant. Further (and this was not contested) the Council had given the Applicant a hearing. It was therefore not open to conclude that the Council did not consider the provisions of the Melton East Strategy Plan.

298. In any event, inconsistency with the provisions of the Melton East Strategy Plan does not make the application unlawful. The Council was entitled to consider the Melton East Strategy Plan and then prefer an alternative.

299. The function of the Melton East Strategy Plan, it was submitted, was as a background strategy. It was not a prescriptive control. It does no more than provide an indicative framework for land use decision making. The strategy and implementation clause in Clause 21.04-2 requiring that the Melton East Strategy Plan be adopted, and that all Development Plans should be prepared in accordance with it, are themselves statements of policy, not prescriptive controls. The Tribunal was articulated the relevant principles in the cases of TEAC Australia Pty Ltd v Port Phillip City Council (unreported, 1999/101615, decided 16 July 1999) and SMA Projects v Port Phillip City Council (1999) 2 VPR 270 (both decisions of a Tribunal comprised by or including Mr Liston).

300. Mr Osborn relied on the following passage from TEAC Australia Pty Ltd v Port Phillip City Council:

"We agree with Mr Whitney in his approach to the consideration of policy in the context of VPP planning schemes. We think the preferred approach is to develop an overall picture of the strategic and policy framework relevant to a particular proposal, and that it is not a correct approach to attempt a clause by clause analysis. This latter approach assumes that the complex layering of strategy and policy which is evident in the Port Phillip Planning Scheme is so coherent that it is amenable to analysis by a close examination of the minutiae of its text. It would be surprising if this complex amalgam of policy developed by different authors over different time periods achieved this degree of coherence. In VPP planning schemes, strategies and policies are more than ever part of planning schemes, and therefore have a statutory basis, notwithstanding this however, we believe it would be a mistake to apply the principles of statutory interpretation to strategies and policies."

"The policy framework is not intended to be treated as creating mandatory requirements, indeed, in this case the adopted as distinct from the proposed policy framework is somewhat general. Nevertheless, under the VPP system policies are to be accorded significant weight, they are intended to inform decision making."

302. In SMA Projects v Port Phillip City Council, the Tribunal accepted a set of statements put forward by Mr Wright QC on the correct approach to the application of policy in planning schemes, as follows (omitting an irrelevant matter):

· "Policy can never be more than a guideline, it should not be applied as if it is a mandatory limitation on the exercise of discretion provided for by the scheme.

· Policy must be considered in a framework which includes all the policies relevant to a proposal in the scheme.

· Policy should not be applied in a way which leads to a result which is inconsistent with a proper analysis of the evidence.

· The planning reform process was intended to result in a system that was capable of producing good or preferred outcomes; policy should not constrain a decision maker into accepting something less than the best decision in each case."

"In the new planning system planning decisions are meant to be heavily influenced by policy, and in particular the consistent application of policy can avoid the adverse effects of incremental change which can occur through an ad hoc site by site decision making process. Nevertheless, policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the future use of land while at the same time avoiding unfortunate outcomes in individual permit applications."

304. Mr Osborn submitted that proposal accorded with the version of the Melton East Strategy Plan included in the Planning Scheme as part of local policy. It is plain that this is a confusion between the Melton East Strategy Plan and the Melton East Structure Plan, which is actually a plan included after Clause 21.04-2, although it is not referred to in that Clause.

305. The role of the Structure Plan is not well explained in the Planning Scheme, unlike the role of the Melton East Strategy Plan. In the first part of Clause 22.01, the Residential Land Use Policy is applied to all the land "within a residential zone and to the land contained within ...the Melton East Local Structure Plan". I will return below to Structure Plan and its divergence from the Strategy Plan in relation to Activity Centres in the southern "suburb" of the Growth Area.

306. Delfin's argument continued that not only was the Applicant's argument based on retail hierarchy derived from the Melton East Strategy Plan fallacious because it assumed the responsible authority was required to give effect to the Melton East Strategy Plan, it was wrong in seeking to fit the proposal into the conventional retail hierarchy. The Planning Scheme treats "Places of assembly" as having a different character. The Activity Centre section of the Melton East Strategy Plan is primarily concerned with the retail framework. Non-retail functions, including community and recreation facilities, are only required to be placed in conjunction with retail centres "wherever possible" under the strategic principles for Activity Centres. This is merely a strategic preference; in any event the proposal is to be located in conjunction with a convenience retail centre; and it was open to the Council to reach the conclusion that this type of club could not be located elsewhere than adjacent to the Western Highway. Nor would it provide an immediate community focus for identity if it were not at the "gateway location" proposed.

307. Nor was the proposal contrary to the Melton East Strategy Plan as a whole. It was not contrary to the goals and objectives of the Melton East Strategy Plan; and the Strategy Plan did not require its strategic principles to be applied inflexibly, as the land use objectives for the Melton East Growth Area showed. The possibility of "alternatives" is allowed for in all relevant chapters.

308. Because the Melton East Strategy Plan cannot be said to require substantial compliance with the indicative framework when it expressly envisages alternatives, it is argued that the Applicant cannot show that the proposed development is "inconsistent" with the Melton East Strategy Plan; or that the Council is bound to reject the proposal by reason of the Melton East Strategy Plan.

309. There have been previous departures from the Melton East Strategy Plan, such as the realignment of the major roads, Caroline Springs Boulevard and Rockbank Middle Roads, and the relocation and refocussing of the Brookside Centre.

310. It had not been shown that the proposal would adversely affect the provision of retail facilities or any other component specifically identified by the Melton East Strategy Plan.

311. It was acknowledged that although there are as yet no prohibitions on gaming in the shopping centres which are not yet in existence, but the philosophy of the controls is clear; it can be expected that no club with gaming facilities could be expected to be accommodated within a substantial shopping centre or strip centre.

312. On the other hand, if the proposal were to be stopped, there is no real prospect that the facilities proposed would be provided within the area in the immediate future or at all. The result would be not just that the residents would have to drive to another suburb to eat out, but that a major potential contributor to the vitality of the area would be lost. This proposal should be distinguished from the hotel for which the Applicant held a permit, as it offered a different range of facilities.

313. The Tribunal has accepted that the new format Planning Scheme is intended to be sufficiently flexible to avoid bad planning outcomes, as the cases previously referred to indicate. The Melton East Strategy Plan embraces that approach.

314. Mr Osborn also referred to St Dominic's Catholic Church v Melton Shire Council [2000] VCAT 230, decided 31/1/2000).This case raised a permit application issue, involving a "Restricted place of assembly" with gaming facilities described as a "hotel/sports club", which was to be used as a club facility by a number of local sports clubs. Up to 1,000 persons were potential users. The proposal was not unlike a modest version of the present proposal, although it did not appear to intend to rely on "passing trade" to the same extent. It was to be located on the north side of High Street, Melton, in a Business 1 Zone.

315. It dealt with two policy issues. The first was the location of gaming machines. The site in question had not been included in the prohibition, and the Tribunal found that these was no presumption that it was inappropriate to locate gaming on the subject land, notwithstanding its adjacency to retailing facilities. The second was that the site was an the end of a commercial centre, in an area that had been previously designated for uses complementary to retailing, and where there were no shops, but opposite to a supermarket that was an anchor in the shopping strip. The Tribunal had regard to the Council's commitment to another centre as the major sub-regional centre for the municipality, and accepted that retailing opportunities in the old strip would be limited. It found that the commitment of the site to purposes other than retail would not be inappropriate, although the proposal was rejected on other grounds related to proximity to residences, insufficient buffering and car park noise concerns.

316. Reference was made to the identification of Melton township as the main civic, employment and shopping centre in the Municipal Strategic Statement. Brief reference was also made to the distinction made in the retail strategies between the area identified as the Shire's regional level shopping centre, at Coburns Road (some distance to the west) and the High Street shopping strip, which was to be a future sub-regional centre. The sub-regional centre was to be a centre for business, civic and professional services, as well as smaller scale retailing. Encouragement of a broader range of activities in and around shopping precincts was also encouraged by Clause 22.06 of the Planning Scheme. The Tribunal's decision supported both the retail strategy and the suitability of this non-retail use in an Activity Centre designated as a sub-regional centre.

317. Mr Osborn further argued that the proposed use would not be considered "major" in terms of the Activity Centre policy in Clause 17.01. It did not have the floor area which is deemed "major" in retail development, for example. This is a reference to the Activity Centre "implementation" policy that certain information and supporting material be made available for retail and office development proposals in excess of 4000 square metres in floor space. This is the same "implementation" clause that continues: "Commercial facilities should be located in existing or planned activity centres" unless certain specific criteria are met.

318. Finally, it was submitted that the proposal was essentially consistent with the strategies for the Melton East Growth Area in Clause 21.04-2 of the Planning Scheme; that there was no inconsistency that made it necessary to compel a refusal, either in the Local Planning Policy Framework or in the zone purposes, nor in the considerations set out in Clause 65. The view taken by the responsible authority was open to it.

319. The first thing that emerges from this argument, in my view, is that all the parties have suffered from the difficult arising from the Development Plan Overlay concept of making the effect of a regulatory control depend on an instrument the nature of which is not clearly defined in the Planning Scheme, and which requires an approval for which there is no statutory scheme of rights. A Development Plan Overlay depends on "Development Plans" being approved, but there are no provisions as to how an application for approval should be made, who is entitled to be given notice of it, whether affected persons must be heard with respect to it, whether written submissions or an oral hearing is satisfactory, or whether evidence maybe called in support of submissions; and ultimately, there is no right of review of a decision either to reject or to approve a Development Plan.

320. The impact of an approved Development Plan under the Development Plan Overlay on any decision to grant a permit is more than exemption of the permit application from all third party rights. If a detailed Development Plan has already been approved, and the permit application is consistent with it, the Development Plan will be a powerful argument in favour of the issue of a permit. The absence of third party rights specific to the Development Plan procedure by which a person's interests may be adversely affected, plus the impact of approval of a Development Plan on a permit application, plus the exemption from third party rights applying to the permit application add up to a need to take great care in the Development Plan approval procedure.

321. Of course, it is open to the Council to give persons who may be affected by the proposed Development Plan notice of it, and to accept and consider their submissions. The Council has undertaken a consultation process in this case. It will often be proper to do so. But if the Council rules against an objection, there is no right to refer the matter to any independent body such as this Tribunal, except by way of the limited review available under Section 149B of the Act, which is not a remedy well suited to what is essentially an argument about the application of policy.

322. The present exemption had a partial equivalent in the conditional "as of right" use in the former scheme, which excluded third party rights because no permit was required for the use when the condition was met - i.e. where the Place of Assembly was located in an Activity Centre already approved by the responsible authority under a Local Structure Plan, and there was no separate permit requirement for buildings and works. Outside an approved Activity Centre, the permit requirement meant that the applicant had to justify the use, and third party rights applied. In the present instance, the Applicant argues that because the proposal is located outside an approved Activity Centre (which I accept is correct), a permit for the use would have been required, and third party rights would also have applied under the old Planning Scheme. The new Planning Scheme therefore reduced the Applicant's rights.

323. The Applicant further submitted that because under the relevant controls development in accordance with the Development Plan Overlay would exclude involvement by affected third parties, the detail required by Schedule 1 must be provided for the development plan to be valid.

324. The Council. on the other hand, referred to the absence from the new Planning Scheme of third party rights in relation to a permit application once a Development Plan had been approved as a matter indicating that the Applicant's attempt to use the Section 149B declaration power to challenge the Council's decision was inappropriate.

325. If a Development Plan was so general in its impact that it could not be said to directly affect anyone's interests adversely, the issue of third party rights would not arise. But in the present instance, a specific project on one site, detailed down to how many people will be accommodated in a room, has been submitted for approval. There is a verbal description to that degree of detail, and a very generalised sketch plan that has been rightly criticised.

326. Clause 11, the Introduction to the State Planning Policy Framework, recognises a Development Plan as part of the "effective planning and management of land use and development" in the broad interests of the community for which planning authorities and responsible authorities are responsible in their districts -

"..... through the preparation of strategic plans, statutory plans, development and conservation plans, development contributions plans, and other relevant plans to achieve the objectives of the Act."

327. This gives rise to an impression that the Development Plan was to be a regulatory document prepared by the responsible authority before development of an area could proceed. The description is part of the Victoria Planning Provisions, approved by the Minister under Part 1A of the Planning and Environment Act 1987, and is not subject to variation by a local planning authority. It was generally agreed by the parties, however, that a Development Plan can be prepared by a developer and submitted to the responsible authority for approval.

328. There are only two clues in the Overlay itself as to what a Development Plan may be. The second of the three purposes of the Development Plan Overlay is:

"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."

329. The words envisage that the form the development plan takes will be an actual plan, not a report describing the intentions of the developer. The second clue dispels that notion, by stating that "The development plan may consist of plans or other documents": Clause 43.04-3.

330. The Manual for the Victoria Planning Provisions published by the Department of Infrastructure does not give much guidance about the use of a Development Plan Overlay. It merely states (at 43) that "This overlay should be used where the form of the development is appropriately controlled by a plan to the satisfaction of the responsible authority and a planning scheme amendment is not considered necessary for the amendment of the plan." I note that Clause 43.04-3 always provided for the Development Plan to be amended, without specifying that the method should be anything other than the procedure for approval of the Development Plan itself.

331. How a single, specific development can be handled by the Development Plan process while envisaging that the planning permit process still has a role to play is the problem that Delfin and the Council have had to face.

332. Mr Milner referred to the Final Report - The New Planning Schemes by Mrs Gibson, Chief Panellist of Planning Panels Victoria (April 1999), which reviewed a number of aspects of the way in which Planning Authorities had responded to the new format, including the Development Plan Overlay. Mrs Gibson stated (at pp 62-63):

"A potential problem that has been raised by panels is the danger of misusing the Development Plan Overlay. Councils are using this requirement as a means of introducing quite detailed Development Plans into the Planning Scheme by an amendment process as a result of requiring the actual Development Plan to accompany the Development Plan Overlay. Rightly or wrongly they perceive themselves to be in a better position by doing this than by insisting that the development go through the permit process.

This approach is promoting site specific development approvals through planning scheme amendments, which the new system was supposed to abolish or at least minimise."

333. This demonstrates the opposite extreme of incorporating the development plan into the Planning Scheme, instead of relying on a strategic plan and relevant policies in the Local Planning Policy Framework. But it also indicates the view of Panels (who reviewed and also acted as Advisory Committees on all the new VPP schemes) that development approvals pursuant to this Overlay are not meant to be confined to a specific site.

334. Mr Milner stated in evidence that the Development Plan Overlay was intended to apply to a number of sites which might be in multiple ownership, spread over a relatively extensive area (but smaller than the area that a Local Structure Plan might apply to) and which might be developed over an extended timeframe. I consider that this is a fair starting point, although it does not address the content required to fulfil the purpose of the Development Plan Overlay.

335. One of the few justifications for requiring a Development Plan instead of going straight to a permit application must, in my view, be that the Development Plan is not limited to the land owned or controlled by the applicant, but shows how the proposal relates to the area within which it is located, without being confined by property boundaries. No form of development for another person's land that has not already been approved or proposed by the owner could be shown without getting into obvious conflict problems; but the infrastucture networks, and the approved or published proposals for uses or subdivisional layout of surrounding land could be included. The requirement that the relationship of the subject land to existing or proposed land uses on adjoining land be shown in the Development Plan reflects the opportunity and limitations of showing the subject land related to surrounding land in different ownership.

336. The only justification that I can perceive for leaving the nature of a Development Plan so vague is that the contents of it are expected to vary with the proposal and the area within which it is proposed to be located. Assistance can be gained from Schedule 1 in the case of the Melton East Growth Centre, as the matters that have to be considered before an Development Plan is approved shed light on the purpose for which the information is required.

337. Compared to the detail shown in the Revised Local Structure Plan - Western Highway Activity Centre report, and for the display village sites in "Local Structure Plan Approval (Amendment 1)", the Caroline Springs Development Plan for the Western Highway Community Sporting Club, dated May 1999 - a month after approval of the Western Highway Activity Centre Local Structure Plan - was extraordinarily modest in the presentation of information in the form of an actual plan. The report accompanying the plan was, however, quite detailed, having regard to the Macro Plan Report that was attached to it.

338. Two relevant opinions were expressed by the officer in the report to the meeting of 29 November 1999. These are:

"The Development Plan does not provide detailed information on the development of the site. However, the planning permit process will ensure the proposal is compatible with the adjoining urban development"; and

"The MESP identified five Neighbourhood Activity Centres, which each will comprise 3,000 to 3,500 m2 of retail floor area. The proposed convenience shop and petrol filling station to the west of the subject land has a total floor area of 800m2. The proposed facility will have a total floor area of 2,000 m2, which in total will provide 2,800m2 of retail floor space. Consequently, the increased supply of retail floor space in this location should not exceed demand.

In addition, it could be strongly argued that the use is compatible with the residential zoning of the land, and one than can and does operate within other municipalities outside of commercial zones."

339. The first passage indicates that the Council looked to the permit application, not the Development Plan, to ensure that the proposal was "compatible with the adjoining urban development". This means that the Council intended to leave questions such as the effect of the proposal on adjoining residential land use to the stage where no third party rights existed. That runs counter to the first two matters referred to in Clause 1.0 of Schedule 1 - the requirements for what a Development Plan must show:

· Detailed plans of sub areas within the plan as well as supporting documentation which assists to clarify the nature of development proposed.

· The relationship of the land to existing or proposed land uses on adjoining land.

340. This information is necessary so that the responsible authority can consider, as it must under Clause 2.0 of Schedule 1:

· The existing and possible future development and use of the land and of contiguous or adjacent land.

· The need for appropriate setbacks from residential areas.

341. The second passage indicates that the officer's report before the Council treated the "Community sporting club (Restricted Place of Assembly)" as retail for the purposes of the Activity Centre strategy, and assumed that there was a need to justify taking up most of the retail space which was to be provided within a Neighbourhood Activity Centre for the southern neighbourhood of Caroline Springs. There was no attempt to rationalise the appropriateness of having a 2,000 m2 entertainment facility depending on a small convenience based centre.

342. In relying on the corner site, with the approval for the "small supermarket" or convenience shop and petrol station, to establish that the proposal could be said to have satisfied the floor area demand for a Neighbourhood Activity Centre, the officer's report treated the proposal as part of an Activity Centre. But, as Mr Whitney pointed out, if the combined site was to be treated as an Activity Centre, contrary to Clause 1.0, the development plan did not show "the layout of the proposed Activity Centre" of which the subject land was to form the greater part. Merely showing the words "proposed petrol filling station/convenience store" does not fulfil a requirement to show the layout of the centre. All the linkages between internal roads, access and egress to the highway and Caroline Springs Boulevard, and information about whether the three uses were to share car parks and loading bays were missing. These were important issues, as the evidence showed, because of the limitations on use of the Western Highway and the nature of the properties adjoining on the other boundaries.

343. Mr Biles stated that a development plan must provide some assurance that the proposal could be accommodated within the site proposed for it. The relationships between uses and the circulation system had to be shown. Mr Whitney nominated three matters as essential: the development and use of contiguous or adjacent land; the need for appropriate setbacks from residential areas; and the orderly planning of the zone including the management of traffic, the provision of pedestrian ways and open space. Both witnesses regarded the Development Plan as inadequate for these purposes.

344. I accept that without the information described by Messrs Biles and Whitney, the Council was unable to give adequate consideration by turning its mind to, and reflecting on, the application and the issues required to be considered by Clause 2.0 of Schedule 1. I consider that the text which was accepted by the Council as forming part of the Development Plan was not sufficient to overcome the deficiencies in the plan itself. The information was inadequate to fulfil the purposes of enabling the responsible authority to consider the matters that had to be considered under Clause 2.0 of Schedule 1 before it could decide to approve a Development Plan.

345. The Delfin submission with the development plan seems to have shared that view, as it stated that details of access and egress, and parking arrangements, were to be included in the Development Plan with a detailed assessment by a traffic consultant. They never were, as far as the evidence has shown, even when the Planning Scheme changed and the Council accepted this submission as a development plan instead of a Local Structure Plan.

346. Two aspects of traffic circulation which appear to me to be not merely failures of compliance with a list of information requirements, but matters which affect the ability of the responsible authority to consider the development plan in accordance with Schedule 1 are -

· How traffic will move through adjoining land to and through the subject land, showing the service road and access to the Highway, and any additional access proposed from Caroline Springs Boulevard, and also internal traffic movements between car park areas and service areas.

· The Development Plan shows the service road for the proposal apparently continuing past the residential land to the east, as the Applicant pointed out. Considering the argument that the proposal would buffer residential land from Highway traffic, exactly what use is proposed to be made of this service road, and whether it is to carry shop and club traffic past residences, it a matter for consideration as part of the Development Plan.

347. The concern expressed by the Tribunal in St Dominic's Catholic Church v Melton Shire Council [2000] VCAT 230 for car park noise from a club of a somewhat smaller size affecting residents is merely a recognition of a common and well recognised problem arising from too close a juxtaposition between residences and late night entertainment venues. In view of this, proposals for protection of the residential areas from car park and traffic noise will be necessary. Whether there is space to fit an effective buffer, or what alternative protections are proposed, is a matter of "relationship" between the subject land and land uses on adjoining land and must be considered before the residential neighbours are deprived of their third party rights by approval of a Development Plan.

348. I therefore consider that the Council did not reach its decision of 29 November 1999 to approve a Development Plan for the subject land in accordance with the requirements of Clause 2.0 of Schedule 1 to the Development Plan Overlay, as it did not have the information necessary to enable it to do so. The document which it approved did not fulfil the requirements of Clause 43.04-3 of the Planning Scheme in that it did not adequately describe the proposed use and development of each part of the land, or include other requirements specified for the plan in Schedule 1, which are intended to ensure that sufficient information was provided to enable the Council to consider:

· The existing and possible future development and use of the land and of contiguous or adjacent land.

· The need for appropriate setbacks from residential areas.

· The orderly planning of the zone, including the management of traffic, the provision of pedestrian ways and open space.

349. The Applicant has therefore made out one of its grounds, and whether or not a declaration of invalidity should be made has to be considered.

350. The argument that the Tribunal may determine the proceeding under Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, disregarding any failure to comply with a planning enactment, argument was considered by Deputy President Macnamara in Castik's case, on which Delfin relied in another context. Mr Macnamara stated (at 58-59):

"......provisions such as Section 54 of the Planning Appeals Act and now Clause 62, could never have been intended to permit this Tribunal or the Administrative Appeals Tribunal in declaration proceedings, to disregard the substantive law. Even if I were wrong and as a matter of statutory construction these provisions could be regarded as applicable to the declaratory jurisdiction, it is difficult to see how it would ever be in the interests of justice, to deprive a party of a legal right based upon non-compliance with a mandatory requirement of a statute which could be asserted in court merely because the matter was being heard in a tribunal. Tribunals are expected to bring a more relaxed attitude to procedural matters but not to play fast and loose with the substantive law or procedural fairness."

351. Although the old mandatory/directory dichotomy may no longer be considered the true test, I consider that the purpose of the requirement for information is sufficiently plain in the Planning Scheme to be confident that this is not a case where failure to supply required information should be disregarded. I do not consider that Clause 62 is appropriate to allow the Tribunal to "disregard" the very failure that is the subject of a proceeding of this nature.

352. Clause 62 envisages that the Tribunal will be able, by disregarding the procedural failure, to get on and determine the substantive issue on its merits. The procedural failures referred to here are the issue.

353. Although little impact from the Council's decision on the interests of the Applicant has been claimed, as a major landowner which has been developing a large estate in reliance on the Strategy Plan, which means making a substantial investment on the basis of the Strategy Plan, it has an interest in seeing other landowners in the same Growth Area either develop in accordance with the Strategy Plan or follow the procedures available for variation of the strategy. I do not consider that it would be in the interests of justice to disregard the defects, even if that power were available in this Application.

354. The Council has identified what it approved as the Development Plan by certifying a copy of a series of documents attached together, including the Delfin application, which contains a description and explanatory material, the "bubble" plan, and the Macro Plan report. I note that Delfin's application was "to outline the Local Structure Plan for a Local Activity Centre": see p.1. The plan itself included an indication of the site to the east of the subject land as residential, but there is no justification for supposing that the Council approved a Development Plan for all three sites from the "Residential" site to the east of the subject land to Caroline Springs Boulevard, or for the two sites that may have been meant by the reference to the Local Activity Centre. The approval was given solely for the "Community sporting club" site, as stated in the resolution and in the certificate on the Development Plan documents.

355. As the Council confined its approval to the subject land alone, I take it to have refused approval of a Development Plan for the combined site, and (insofar as it was sought) any application for a variation to the Activity Centre Framework.

356. In considering what order should be made, I have taken into account the importance of the subject matter of the decision in terms of the implementation of State and Local policy, including the policy in Clause 22.04 that all Development Plans should be prepared in accordance with the strategic principles outlined in the Melton East Strategy Plan, which I have in any event considered in relation to the alternative ground of the Application.

357. In terms of relevant policy, the criticism of the Development Plan made by the Applicant and supported by the evidence of its witnesses, Messrs Whitney and Biles, was that a substantial commercial entertainment/community facility was to be located outside an activity centre identified in the Strategy Plan, and inconsistently with the hierarchy of centres spelled out in both Clause 21.04-2 (the Melton East Growth Area) and the Strategy Plan.

358. The Macro Plan Report supporting the Development Plan relied on the "human services and community development objectives" rather than the commercial and Activity Centre strategies. It states that "the proposal satisfies all the elements relating to enhancing and developing a strong community and providing opportunities for residents of Melton and the broader western region of Melbourne". This statement is not related to a policy context. On the contrary, the Strategy Plan envisages "district" community centres as its highest order of need, and indicates that entertainment centres (needing a higher population catchment) should be provided on a subregional basis, in or near the town centre. Sharing with other communities so as to ensure viability of service appears to be related only to the "neighbourhood" level (Strategy Plan p.28). There is no policy reason to serve the needs of the entire western region within the Melton East Growth Area.

359. Macro Plan stressed the community benefits that may be expected from involvement of football clubs in the local area. An independent proposal for the relocation of the Western Jets training program and administration to Brookside would also have considerable social benefits. But in addition, a program of football-related functions and events had been proposed for the sporting club facility at the subject land. Macro Plan stated four major benefits of the site:

· The highway exposure offers visibility to the venue as a social/function facility.

· The location allows identification and profiling of the AFL and VFL which is considered crucial for elite sporting clubs.

· A commercial facility of this size could only be developed on a high profile site.

· The facility is not surrounded by residential properties, which minimises any potential detrimental impact on residents.

360. With respect to the last point, this "benefit" has been destroyed by the Council's requirement (which was entirely justified in policy terms) that the land to the east be developed for residential use as well as keeping its Residential zoning, so that taken with the fact that the land to the north was always intended to be residential, the facility can now be regarded as having a significant exposure to residential neighbours.

361. The Macro Plan Report states that "the proposal satisfies all the elements relating to enhancing and developing a strong community and providing opportunities for residents of Melton and the broader western region of Melbourne". But no policy that would support the provision of regional community facilities within the area covered by the Melton East Strategy Plan has been indicated.

362. In describing the proposal, Mr Osborn concentrated on the opportunity for early, or accelerated, provision of a quality restaurant/ bistro, function rooms, employment opportunities, gaming, and "a sporting focus" within the area. He argued that the proposed sporting club would provide further facilities, not substitute for the non-commercial facilities that were to be provided as part of the Caroline Springs estate. He referred to the role of "restricted places of assembly" in helping to establish community identity and facilitate provision of services not otherwise available. It was often the case that recreational facilities will be able to offer more in scale and quality to the local community if they also serve a broader area.

363. An analogy to this argument has been accepted on a number of occasions by the Tribunal in the context of medical centres. In a Residential 1 Zone, a medical centre - like a "restricted place of assembly"- has to be justified on its provision of service to the local community. A higher order medical centre, catering for several different specialists, can provide a wider range of services to the local community, but will also serve a broader community. The benefit has to be balanced against other relevant considerations that must be considered before an approval is given, such as impacts to local amenity. Sometimes the balance is achievable; but not always. The fact that the local community can share the facilities does not guarantee that they are acceptable within the local community as a matter of sound planning.

364. In this context, however, the hierarchy of Activity Centres for the Melton East Growth Area has to be considered, as well as the particular activity. The strong trend of the Strategy Plan is that higher order facilities are to provide a focus in the centre of the Growth Area, not on the edge.

365. In term of community identity, the proposal indicates that the developer would be making every effort to identify the facility with the three football clubs, not with the Melton East Growth Area. The officer's report adverted to the highway location as ensuring "suitable identification and exposure to promote the viability of the Club". It is the Melton East area that is supposed to be focused and identified by the high order regional community and recreational facilities envisaged under the Melton East Strategy Plan. The proposed use is not going to provide a community focus for the Growth Area, but a significantly different identification with prominent sporting clubs aimed to attract a high proportion of patronage from outside the community.

366. Lack of accessibility, and dislocation of access, are issues in relation to the Western Highway site as regards the growing population within the Growth Area. The subject land is not on the very southern boundary of the Growth Area, but its southern boundary is a major traffic artery that forms the southern edge of the residential estate. Although Caroline Springs Boulevard appears to be an excellent major through-road connecting to the internal road system of the Growth Area, it is a long way from the north end of the Growth Area to the south. The location of the Town Centre is literally central. The distances and journeys involved in the proposed location are in excess of what would be expected if the Activity Centre framework were to be followed.

367. The location of a regional entertainment facility on the southern edge of the estate recalls the reasons why the Town Centre site was located in a central position. It may well be more use to the residents of the area whose interests are supposed to be served by the Strategy Plan to have a less ambitious restaurant, or a smaller hotel, within an Activity Centre on the estate, that to have a regional facility, even with the prestige of a link to several football clubs, on the edge.

368. While Mr Rumbold did not consider that the Town Centre would be harmed by the proposal, his evidence did not indicate that the smaller Activity Centres would not be harmed, or their provision of community facilities delayed, by the size and range of facilities proposed to be offered at the subject land. On the contrary, he regarded their position as already "not commercially realistic", requiring a future shake-out that would impact on the network and spread of the proposed Activity Centres.

369. I accept - and it was not contested - that the Town Centre (sub regional Activity Centre) is consistently identified in the relevant policies and Strategy Plan, which also require that its location, role and function should be supported. As to whether locating the sporting club proposal on the Highway would weaken the future Town Centre, or delay provision of facilities such as restaurants in the Town Centre, the evidence is conflicting.

370. Mr Whitney considered that good future planning of the area requires that the Activity Centre strategy, the Melton East Strategy Plan hierarchy of Activity Centres and location of community facilities strategies must be followed. Mr Biles does not insist that the proposed sporting club could only be located in the Town Centre, but the proposed site is equally inappropriate in his eyes. Mr Milner places the sporting club outside the Melton East Strategy Plan hierarchy, but sees the literal requirements of the Strategy Plan as being met by its location adjoining the convenience store and petrol station. Mr Rumbold sees no harm to the Town Centre, which is not to be commenced until 2005, and will then grow slowly over time, in getting on with this proposal now on the highway location, and thinks that the issue is best determined by the market.

371. In the present instance, as everyone acknowledged, the Melton East Strategy Plan provides for "alternatives" to be proposed. These are alternatives to the framework proposed in the Strategy Plan, rather than to its strategic principles, which still have to be capable of being achieved through the alternative structure (see p.10).

372. The Activity Centre strategy in particular is subject to a number of cautions indicating that changes in the hierarchy as indicated in the Melton East Strategy Plan may be necessary as development in the Growth Area proceeds. But the "alternatives" have to be justified.

373. The "alternatives" for Activity Centres in the Melton East Strategy Plan start from the proposition not only that the full potential of the Area to support retail activities will be realised, but also that "There is provision for a sub-regional scale of facility with associated range of non retail high order community and recreational facilities which will provide a focus and identity for the Melton East Area."

374. The Macro Plan Report sets out the Activity Centres "alternatives" requirement, but I agree with Mr Whitney that the report does not adequately address the issues raised in that requirement. It does not address the impact of the proposal on any approved Activity Centre, save to show that it will draw on a catchment in a 5 kilometre radius. It states that a 400 seat bistro/restaurant is unlikely to be replicated in the proposed future neighbourhood or sub-regional centre, but does not draw any conclusions about whether the prior establishment of this facility outside an approved Activity Centre would have any bearing on that. The discussion of effects on businesses appears to be confined to existing businesses, not the pre-emptive impact on businesses that might have sought to locate in accordance with the Activity Centre strategy.

375. It does not show that additional community benefits would flow from locating the use in an alternative location, instead of an approved centre. I agree with Mr Whitney's analysis that the benefits described are not dependent on the location being on the Highway rather than in the Town Centre or another higher order Activity Centre.

376. Although it is stated that the Highway exposure was considered critical to viability, there is no discussion of the impact of having a sports connection of regional stature so close to the Caroline Springs entry point on the community identity issue, or of the potential of the north-south arterial as a suitable site for a high profile entertainment use.

377. There is no discussion of accessibility issues arising from location of this use on the edge of the Growth Area, instead of the central location chosen for the Town Centre. Nor was the possibility of locating in the Brookside Activity Centre discussed, although it was mentioned in the officer's report as one of the designated "other centres" and one of the clubs involved in the proposal may establish other facilities there, strengthening the link to a sporting club if this is seen as a significant feature of the proposal.

378. The question of what impact the Highway location would have on the orderly and timely provision of Neighbourhood Activity Centre services and facilities in the southern part of the Growth Area has not been asked, or answered, in the Macro Plan Report.

379. So long as it is recognised that the proposal would not convert the corner shop into a Neighbourhood Activity Centre, in my view the Strategy issue is whether the club proposal should be located in or adjacent to the Town Centre or a Community Activity Centre, or whether the Highway location is acceptable. An alternative urban structure for the Growth Area has not been proposed.

380. Th only "alternatives" issue discussed in the officer's report was that the proposal would not change the approved urban structure set out in the Strategy Plan. Relevant criteria were however quoted.

381. I am satisfied that the Council did not act on the assumption that it was approving a Development Plan for a Neighbourhood Activity Centre. But the officer's report did use the characteristics of a Neighbourhood Activity Centre to justify the floor space for this proposal, even though it clearly stated that the urban structure would not be changed. I consider that to have been a mistaken use of the Neighbourhood Activity Centre designation, which has never been applied to this site. But it is not an error that by itself would have vitiated the Council's decision, as the approval did not designate a combined site as a Neighbourhood Activity Centre; it was for a Development Plan limited to the "Community Sporting Club" site.

382. Although I accept that it was not necessary for Delfin to seek approval for a Neighbourhood Activity Centre on the subject land and the corner site (which it did not get), that does not mean that the Development Plan should not have shown the connections in terms of traffic movements, circulation and any sharing of car parking and loading bay facilities. The convenience shop site was still adjoining land, like the residential land. The relationships had to be illustrated.

Activity Centre policy and the Melton East Strategy Plan

383. I prefer the evidence of Messrs Biles and Whitney as regards the implications of relevant strategy and policy on the location of the proposed use. The combination of retail related uses and entertainment use is within the class of uses that both State and Local policy would place in or in conjunction with an Activity Centre. The size of the facility and range of uses indicates that it is appropriate to a higher order Activity Centre, not attached to small supermarket and petrol station forming a local corner shop site in a Residential 1 Zone.

384. Although no limit of floor space was indicated for any lower order facility, the nature of the "local/corner shop" and its intended catchment were described in the Strategy Plan. I agree with Messrs Biles and Whitney that a small supermarket, a petrol station and this proposed facility do not add up to a Neighbourhood Activity Centre. The local shop type facility approved for the corner site does not provide the order and range of facilities to be expected in such a centre. The two sites would be occupied by commercial uses which could well be integrated in terms of physical layout, but they will not contribute synergy to each other in terms of "providing a vibrant commercial area", as Macro Plan put it. The corner shop would remain a corner shop; but if the proposal proceeds, it would have a sporting club next to it. There is no integration of the two sites in terms of their role in the Activity Centre hierarchy into a Neighbourhood Activity Centre which provides an appropriate level of services to its community.

385. Mr Milner does not assert that integration of the two sites into a Neighbourhood Activity Centre would occur, but that a higher order entertainment and community use adjacent to the corner shop site is in accordance with the Strategy Plan.

386. The strategic principles set out in the Melton East Strategy Plan are given an important role in local policy by Clause 21.04-2: any rezoning for commercial purposes should be in accordance with them; and the adoption of the Strategy Plan itself is to give a degree of certainty for developers and residents.

387. It is plain in the Melton East Strategy Plan, in my view, that before an "alternative" is accepted for a nominated Activity Centre, the proponent has to show that there would be no erosion of the capability of the Growth Area to support retail activities, no loss of floor space potential for each sub area, and the other listed matters, which are intended to ensure that approval of an alternative does not weaken the comprehensive overall structure of commercial and community facilities which are provided for in the Activity Centre Framework.

388. In accepting that co-location of the proposed sporting club in conjunction with the approved local/convenience shop was in compliance with the strategy or policy, Mr Milner has in my view looked at the words of the policy rather than its purpose. His evidence relied on the fact that the lower order centres were not shown on the Activity Centre Framework plan in the Strategy Plan, and that the subject land was next door to an approved local shop. He gave insufficient consideration to the degree to which "commercial and community facilities" are dealt with together in the Melton Easy Growth Area strategies, and to the fact that the Strategy Plan places higher order recreation and leisure facilities at the suburban/sub-regional level, in or near the Town Centre.

389. Of the possible alternatives to the Town Centre, highly accessible positions on a main lateral or the main north/south arterial roads (being internal roads, as shown in Chapter 6 of the Strategy Plan) and co-location with appropriate community facilities and open space, are required for location of a Community Activity Centre by the Retail Hierarchy in Chapter 4 of the Melton East Strategy Plan. No such Activity Centre is envisaged in the area south of the Town Centre, except at Westwood Drive. As this Activity Centre is committed, and already had its commercial zoning, it is not realistic to consider an alternative Community Activity Centre being established in such close proximity to it.

390. If the "community facilities" strategic principles are relied on, higher order recreation and leisure facilities are to be provided at the suburban level. The suburban level centre designated on the Indicative Community Facilities Framework is at the Westwood Drive Activity Centre. This also reflects the general thrust of the Strategy Plan.

391. The Implementation section for the Growth Area strategies requires that Development Plans shall be prepared in accordance with the strategic principles outlined in the Melton East Strategy Plan. These state that "a number and size range of centres is envisaged as set out below" in order to ensure that all residents have access to the full range of retail and related facilities. Wherever possible, non-retail functions, expressly including "community and recreation facilities required for each neighbourhood" should be located in conjunction with retail centres. I consider that these principles are directed to ensuring that both the range of facilities is provided, and that they are accessible. Co-location is both an accessibility issue and a synergy issue. In my view, there is ample evidence to show that the Strategy Plan, consistently with State policy, intends to obtain the benefits of co-location for the community which is to be served by the Activity Centre, including supply of a full range of services in accessible locations. The Local Planning Policy Framework, in applying the Strategy Plan, also seeks to attain this benefit.

392. The officer's report of 29 November 1999, in assessing the proposed Development Plan within the retail framework for Melton East, added the floor space area of the proposed facility to the floor space approved for the corner shop (small supermarket) and petrol station, to reach a total that was within the floor space area considered appropriate for a "Neighbourhood Activity Centre" as defined in Clause 21.04-2. The conclusion drawn was that the increased supply of retail space would not exceed demand. The subject land is added to the approved local centre to show that only one Activity Centre would be located south of Kororoit Creek in addition to Brookside. But the implied characterisation of the Activity Centre as a Neighbourhood Activity Centre has not been supported by the planning evidence.

393. This higher order facility added to a low order centre would provide entertainment activities and food services that could be used by the intended 5,000 to 10,000 people who are to be served by a Neighbourhood Activity Centre. But it will not include a range of small shops and "neighbourhood" level services, which the people living in the catchment were intended to have, and which they may very well find more useful. If this proposal is located on the proposed site on the basis that if it is added to the small supermarket and petrol station, you have a Neighbourhood Activity Centre, the question of where the 5,000 to 10,000 people must go for their neighbourhood shopping centre needs and the community services that are supposed to be provided at the neighbourhood level still has to be answered. This is especially so as the Brookside centre is to have such limited shopping facilities, not much more than the Western Highway corner site. No consideration was given in the officer's report to how the supply of the actual facilities proposed would affect the orderly provision of services to the community appropriately for that level of Activity Centre as set out in the hierarchy.

394. The justification for the Highway location is given in terms of commercial viability. Macro Plan characterise the proposal as a regional level facility, outside the scope of the Activity Centre structure proposed in the Melton East Strategy Plan, where the highest order Activity Centre is sub-regional. Mr Rumbold's evidence supports reliance on a greater catchment. Macro Plan states that the Activity Centre structure proposed in the Melton East Strategy Plan would not accommodate this development, which offers "higher order" services. It is unique, and requires the highway exposure for maximum regional exposure. "It would not be appropriate to locate it in a sub regional or neighbourhood centre, which is seen to be internally focussed and more local in nature": Macro Plan p.9. This is put as a matter of "the commercial reality of the market". Mr Rumbold simply did not accept that the proposal would locate on a site off the Highway. His catchment and market demographic showed only a limited relationship between the developing community in the Growth Area and the nature of the facility proposed.

395. It becomes important, in considering whether the "edge" location could be justified with reference to its market driven desire to attract a high percentage of patrons from outside the Growth Area, to look at whether the location of this facility would detract from the orderly provision of accessible retailing and community services to serve the Growth Area.

396. The greatest risk to this orderly provision is that once the Activity Centre hierarchy is seen to be abandoned to suit a particular opportunistic use, it becomes more difficult to apply it. Erosion of the commercial base of the higher order centres is made easier. Mr Whitney was of the view that if you allow uses that are supposed to be located in the Activity Centre to locate elsewhere, you can lose the Activity Centre. Mr Biles pointed to the success of the former metropolitan (now State) Activity Centre policy, which has been firmly applied.

397. Mr Milner and Mr Rumbold saw no objection to locating the proposal outside the Town Centre, because it was not a retail development. But the strategic principles for the main retail centre in the General Land Use Structure chapter of the Strategy Plan include "It is a feature of this plan that the range of high order community, educational, recreational and civic functions are located in this area in support of the Town Centre function in the long term".

398. Even Mr Rumbold acknowledged the strategic role of the Town Centre as the focus of community activities. But he saw its development as delayed for longer than the period envisaged by other witnesses. On the time scale he envisaged, it would be difficult to relate any delay of community or entertainment services in the Town Centre to the establishment of this proposed use at the edge.

399. The officer's report gave the justification as an attempt to address the short to medium term needs of residents, while the location ensured suitable identification and exposure to promote the viability of the club. Acceleration of provision is therefore the only justification of this higher order facility in terms of provision of facilities and services to the community.

400. Messrs Biles and Whitney did not accept the Macro Plan proposition that this proposal was for a regional facility, outside the scope of the hierarchy for the Melton East Growth Area. Mr Whitney was prepared to consider the appropriateness of locating it in the Brookside centre, but not on the edge of the Growth Area.

401. I accept the correctness of Delfin's submission that variations from the Melton East Strategy Plan have previously been allowed. The 1997 Strategy Plan Review itself appears to have resulted in a relocation of the Town Centre to the south (see p.10). Between adoption of the 1997 Strategy Plan and commencement of the new Planning Scheme, the location of the town centre has been located "around the intersection of the main north south arterial road" in Clause 21.04-2, rather than "to the west of the main north south arterial road" as per the Strategy Plan. The number of Neighbourhood Activity Centres allowed for in the Melton East Strategy Plan was five, plus two possible alternatives. The retail hierarchy in Clause 21.04-2 allows for seven. But there was no evidence about the way in which these changes occurred. The ones I have mentioned must have been through the process for approval of the new VPP format Planning Schemes.

402. I think it can be safely assumed, given the nature of the previous Planning Scheme, that previous variations from the Strategy Plan went through the procedure involving the Local Structure Plan. I do not see that the fact that there have been variations of itself strengthens Delfin's position. I have no reason to doubt that in each previous case, the requirement for establishing an "alternative" by a comprehensive justification showing that the alternative structure was achievable without prejudicing the achievement of goals, objectives and strategic principles was met.

403. Mr Osborn quoted two Tribunal cases, to which I have referred, in which the Tribunal spoke of giving appropriate weight to policy, and not permitting policy to result in a bad planning outcome. Those were cases about decisions to issue permits, where there were policies which potentially conflicted. In the present instance, it appears to me that there is no conflict as to the policy (although there is confusion over the Structure Plan), but merely argument about the application of the policy. The commercial opportunity has arisen to make use of an available site, and the appropriateness of it has to be judged against the policies to which all the parties have referred. In the absence of conflict between policies, full weight can be given to the relevant policy. This does not mean that a policy can be treated as removing the discretionary element of the relevant decision. It remains a matter to be taken into account in the exercise of a discretion in relation to an approval required under the Planning Scheme. Other matters beside policy that have to be taken into account in reaching the decision, which are set out in the Planning and Environment Act 1987 and the Planning Scheme itself, must still be considered.

404. When the Council made its decision, as well as the office's report, it had the Macro Plan Report which expressed the opinion that the proposal was appropriate, although it only addressed the requirements for "alternative" locations with respect to community benefit, not the other criteria.

405. Macro Plan had stated that the Activity Centre hierarchy would not support this development, which it described as unique, and stated that this type of facility had not been in existence when the Melton East Strategy Plan had been prepared, implying that provision would have been made for it on a Highway location if it had been. I do not consider that the Strategy Plan, which was reviewed in 1997, can be fairly said to post-date introduction of clubs of this nature. Mr Rumbold's evidence was that in June 1999 there were nearly 400 private clubs in Melbourne, nearly 45% of them with gaming facilities. I consider that the Strategy Plan must be taken to include entertainment facilities of this nature, and that the Council can be taken to have been familiar with the concept, both because there is a club in Melton that has been referred to, and because the St Dominic's Catholic Church case raised the issue, and the decision shows that Council issued a Notice of Decision on that proposal in February 1999.

406. I accept that the only benefit to the Growth Area described by Macro Plan in justification of an "alternative" location outside the Activity Centre Framework is acceleration of provision of entertainment and recreation facilities closer than those already in existence some 5-10 minutes' drive away, as described by Mr Whitney. The other benefits described would follow if a proposal of this nature was located in a higher order Activity Centre, assuming the proposal came forward when the market in the Growth Area was ready for it. But on the evidence, I do not accept that it is probable that the time lag until the market is ready to place a facility of this nature in or adjoining the Town Centre would be a mere 2-3 years.

407. The fact that significant elements of the proposal, including gaming, fall within the "retail group" in terms of characterisation of uses under the Planning Scheme does not necessarily weaken Mr Milner's opinion that not being retail, the proposal does not negative the Activity Centre structure. The proposal includes both retail and non-retail elements under the "nesting diagram" in the Planning Scheme definitions. The officer's report treats the proposal as retail for the purposes of the retail framework. But the Strategy Plan recognises recreation facilities as "non retail", although it still requires them to be located in conjunction with retail centres wherever possible, in the strategic principles for Activity Centres.

408. The possibility of limitations on gaming being applied so as to limit the potential for a use of this nature to locate in the Town Centre was not discussed in the Macro Plan Report or the officer's report, but is a factor that in my view could properly have been considered. While the policy does not generally discourage gaming from being located at or near shopping centres, the very long lists of centres where prohibitions apply can be construed as evidence of a perceived incompatibility of the uses in a variety of shopping centres. There are already precedents in Melton.

409. Although in my view the Applicant has established that the "correct or preferred" interpretation of the Development Plan would have been that it was inconsistent with the provisions of the Melton East Strategy Plan and Local Planning Policy, that is not the decision the Council had to make. It had to decide whether to approve the Development Plan. In doing so, it had to consider the Strategy Plan and Local Planning Policy, and also the other matters set out in Clause 2.0 of Schedule 1 and Clause 65. It was proper to take into account the one positive element established, that of acceleration of supply of facilities to the Growth Area. I do not consider that it can be said that it was not open to the Council to make the decision it did to approve the Development Plan.

410. The Applicant faced a very difficult task in relying on policy to establish that a particular decision could not be justified as a matter of law. It is well established that to "consider" a policy or strategy does not mean the same as to give effect to every aspect of the policy. Although there may be strong reasons for giving effect to a policy, as a matter of law it is open to the Council to consider the relevant policies - to turn its mind to them and, acting in good faith and without regard to irrelevant matters, to reach a decision that is contrary to one or more of them.

411. Nor is it entirely clear cut that the proposal would subvert the Activity Centre strategy to the point where it could be said that the Strategy Plan and Local Planning Policy had not been truly considered. The Town Centre characteristics as set out in the Strategy Plan look to the ultimate form of the centre, which "could ultimately include" a variety of recreation and community facilities including clubs; but in my view it was open to the Council to consider that the proposal contained a mix of elements that were of somewhat less importance to the viability of the of Town Centre compared to retail shop space, and also that there is a lead time of some years before higher order recreational facilities are likely to locate in the Town Centre. It would also have been of some relevance to consider whether the gaming function may be regarded as undesirable if the mix of uses envisaged in the Strategy Plan is located in the Town Centre.

412. There has been nothing in the evidence to indicate that establishing the club on the subject land would cause the sort of services to be expected in a Neighbourhood Activity Centre, such as a medical consulting room and child care, to be delayed or diminished. The subject land was never contemplated as part of a Neighbourhood Activity Centre in the Activity Centre strategy, and its location on the edge of the Growth Area would be incompatible with adopting it as a site for such a centre with these kinds of community facilities.

413. In terms of the rest of the hierarchy, so long as it is clear that the proposal would not turn the corner location into a Neighbourhood Activity Centre, compliance with policy could be shown except with respect to the proposed use of the subject land itself. Although the proposal, as a high order facility, was preferred to be located in the Town Centre, the delay factor involved, and the possibility of loss of the facility, provide some justification for a departure from the Growth Area policy. I have concluded that it cannot be said that no reasonable Council, properly instructed, and taking into account all the factors which the Council was required to consider in making its decision, would have reached the conclusion that this Council did.

414. In considering this issue, I have had regard to the material which has been shown to be available to the Council when it made its decision. I have had the benefit of a good deal more material of a helpful nature than the Council did; but the use I could make of the additional material has been to consider whether it shows that a Council acting reasonably and properly instructed would have been able to come to the same decision.

415. Although I do not consider that the decision was vitiated on thee ground of policy alone, as it was already invalid for the reasons already outlined, the relevant policy in my view supports the making of the declaration sought. The Council will have a chance to give further consideration to relevant aspects of the policies and Strategy Plan and work out whether it needs a further review of its Activity Centre framework before making a decision on a significant development on the Highway frontage.

Inconsistency between the Strategy Plan and Structure Plan

416. The Land Use Structure Plan in the Strategy Plan has no Activity Centre on the Western Highway/Caroline Springs Boulevard corner. It does have something close to the northern location marked as an "other centre" (in the context meaning other than a sub-regional or community activity centre); but the "Community Activity Centre" for the southern suburb is on the west side of Westwood Drive, to the north of the Highway - in the position in which the Business 1 Zone has been approved.

417. In the Structure Plan attached to Clause 21.04-2, there is an "other activity centre" shown on the north side of Western Highway in or close to the eastern corner of the intersection with what is now Caroline Springs Boulevard. Mr Pitt's interpretation of this "activity centre" has been referred to above. There is also a "community activity centre" shown directly north of it, on the south-eastern corner of the intersection of the first through road intersecting with Caroline Springs Boulevard, which corresponds with the "activity seam" on the Land Use Structure Plan in the Strategy Plan.

418. While the plans are consistent in showing that one centre should be located between Westwood Road and Caroline Springs Boulevard, in the Strategy Plan (both Land Use and Indicative Activity Centre Framework plans) it is a Community Centre in the Business 1 Zone location, while in the Structure Plan it is an "other activity centre" to the west and south of that location.

419. There is therefore an inconsistency between the Strategy Plan and the Structure Plan that is not explained in the Planning Scheme. The Structure Plan is not assisted by the Indicative Activity Centre Framework plan in the Melton East Strategy Plan, as that shows no activity centre at all near the highway between the Community Activity Centre site on the western side of Westwood Road and Caroline Springs Boulevard.

420. The reference in the officer's report to the "Land Use Structure as proposed by the MESP" is not accurate in terms of the Land Use Structure shown in the Melton East Strategy Plan. It refers to an "other centre" located in the north east corner of Caroline Springs Boulevard and the Western Highway. This must be intended to refer to the Melton East Structure Plan. There is no such centre on the Land Use Structure Plan in the Melton East Strategy Plan. Nor is the reference accurate in relation to the copies of both the Land Use Structure Plan and the Indicative Activity Centre Framework Plan that are attached to the report. I take this to be a confusion between the Melton East Strategy Plan and the Melton East Structure Plan.

421. An extract from the Report of the Panel and Advisory Committee on the new Melton Planning Scheme, which was tendered by the Applicant, discussed the zoning and terms for development of the "Woodside Drive Activity Centre" (previously described as the Burnside Activity Centre). The relevant part of the Report refers to the submission of Dennis Projects Pty Ltd, a developer associated with the Applicant's site. The Activity Centre is described in terms that, without the attached plan relied on by the Panel, still make it clear that the Centre is to be zoned Business 1. This corresponds to the zoning in the approved Planning Scheme of land on the west side of Westwood Drive, to the north of the Mixed Use zone that abuts Western Highway. The Activity Centre is a large one, compared to others which have floor space limitations set out in the Schedule to the Business 1 zone - it has a maximum combined leasable floor area for shop use of 11,000m2, of which 5,000m2 is for restricted retail premises. It has been implemented in the new Planning Scheme by the appropriate zoning. It cannot be said that it was out of date when the Structure Plan was included in the new scheme.

422. The Planning Scheme gives the Structure Plan only a limited role, as I have already mentioned. I do not consider that the Structure Plan is a substitute for the Strategy Plan or any of the plans included in the Strategy Plan. The omission of the Woodside Drive (or "Burnside") Activity Centre from the Structure Plan means that it cannot even be considered as accurately reflecting approved locations for Activity Centres that have already been committed by zoning.

423. No real explanation, other than that the planning for the area is evolving, has been given in the evidence for the inclusion of a Structure Plan in the Planning Scheme which shows an "Other Activity Centre" in the location of the Western Highway Activity Centre approved by the Council - in a position that does not reflect the centres identified on the Melton East Strategy Plan - but not the Burnside Activity Centre which was identified in the Strategy Plan as a Community Activity Centre.

424. The differences in the two plans would be explained as far as the Caroline Springs estate were concerned if the Melton East Structure Plan had been drawn up as a summary of the Local Structure Plans that had been approved to the date of commencement of the new Planning Scheme, including the Western Highway Activity Centre Local Structure Plan certified 14 April 1999. But although that would explain the apparent location of the "Other Activity Centre" close to or on the intersection of the Western Highway and Caroline Springs Boulevard, it does not explain why the "Burnside Community Activity Centre" (now the Westwood Drive centre in the Business 1 Zone and adjacent Mixed Use Zone) has not been shown.

425. Without a reference to its intended function in the Local Planning Policy Framework and an explanation as to why the Structure Plan differs from the Strategy Plan, I do not consider that the Structure Plan can be used to interpret the Activity Centre hierarchy. The Structure Plan might be part of the approved Planning Scheme, but so are the many policy statements that require the Strategy Plan to be followed and considered. In particular, it is the Strategy Plan which must be considered in making the decision to approve a Development Plan. While municipal planning policy must also be considered, and the Structure Plan appears in the Local Planning Policy Framework, by itself in these circumstances it cannot be considered a relevant policy.

426. Having considered the policy matters referred to above, I will add that I do not agree that rejection of the proposal through this proceeding would deprive the community of entertainment and services. This Application is concerned with process rather than merits; and if the Development Plan is found to be invalid because something is wrong with the decision making process, that does not stop further consideration of the matter - particularly if the Council is already engaged in a review of the Activity Centres and the future floor space and locational needs of the developing community.

427. As Mr Biles pointed out, there is nothing wrong with reviewing a strategy, if it is considered to be out of date or superseded. In fact, the VPP format requires regular reviews. What is required is that while it is policy for the Melton East Growth Area that (1) the Melton East Strategy Plan should be adopted, (2) that all commercial rezonings should be in accordance with its strategic principles, and (3) that all development plans should be prepared in accordance with its strategic principles, it should be given effect to. However, too frequent reviewing should also be avoided, as if it is perceived that the Council will readily change its Strategy Plan to accommodate inconsistent proposals, ability to obtain compliance with the Strategy Plan, and hence achievement of the approved Activity Centre strategy, will be eroded.

428. In Cook v Melbourne City Council (1998) 1 VPR 41 at 54, Deputy President Macnamara had regard to the "planning merits" in considering whether to make the declaration sought, and decided that "the planning merits favour the making of a declaration of invalidity".

429. In the present case, to refuse the declaration would mean that the Council would not have a chance to use the current Development Plan Overlay provisions of the Planning Scheme to require a proper traffic and circulation, access and parking layout for the subject land, connecting to adjoining land and the road network, and assure itself that the site layout, nature of buildings and works, and adequate space for buffers would allow proper protection of the amenity of residential development on two boundaries. Delfin and the Council will also have a chance to consider the question of whether it is appropriate to pursue the issue of locating an Activity Centre of more than corner shop status on this site and the site to the west, and to give further consideration to the question of compliance with the relevant policies and Strategy Plan.

430. The Applicant is one of the developers for whose benefit, along with residents, the Strategy Plan was adopted, in order to provide then with a degree of certainty: Clause 21.04-2.

431. The interest of present and future residents in the adjoining residential properties in what Macro Plan indicated was to be a 24-hour operation on the proposed scale of this club, and who would have no third party rights if the Development Plan decision stood, is another factor which I regard as having relevance to a question of adequacy of the Development Plan. Delfin stated that the adjoining owners had been informed, but it is possible that new owners have come into the picture since the first proposal, or that they have not adequately understood the proposal from the "bubble" plan available in the application for approval.

432. It has not been suggested by Delfin that it would suffer any countervailing loss or harm if the declaration were made. It was the Council which asserted that Delfin would suffer if its project was delayed. However, as Delfin has not seen fit to pursue that, and the size of the overall project is so great that it is quite possible no disadvantage would be suffered if other parts of it proceed, I do not consider that this outweighs the inadequacy of the Development Plan to do the job it is supposed to under the Planning Scheme.

433. Nor do I consider it futile to make the declaration, knowing that a new Development Plan has already been prepared. I have not had regard to the contents of the Amended Development Plan, but if it does its job properly, the purpose of the Development Plan provisions will have been served. The provisions of the Melton East Strategy Plan and municipal planning policy have to be considered in making the decision to approve any Development Plan.

434. I will therefore make the declaration that the Council's decision of 29 November 1999 to approve a Development Plan for the subject land was invalid. Costs will be reserved.