Mr Colin Taylor, Solicitor, Planning & Property Partners

• Mr Andrew Clarke, Town Planner, Matrix; and
• Mr Ian Field, Architect, ML Design

Mr David Vorchheimer, Solicitor and Town Planner, Russell Kennedy

1. Casey Gardens Pty Ltd applied for a planning permit to facilitate the residential redevelopment of a substantial site in Narre Warren. A development plan was approved by the responsible authority in respect of the land on 21 October 2008.[1]
2. In processing the application for a planning permit, the responsible authority advised Casey Gardens that it considered that the permit application was not generally in accordance with the approved development plan for the site, this being a requirement for the issue of a permit under the provisions of the Development Plan Overlay.[2] Casey Gardens has applied for a declaration to resolve this issue.[3] It submits that the permit application is generally in accordance with the approved development plan.
3. The responsible authority identified numerous aspects of the proposal that it considered, either standing alone, or cumulatively, meant that the application was not generally in accordance with the approved development plan.
4. Casey Gardens acknowledged that the development depicted in the permit application departed from the approved development plan in various ways, but considered these departures were not of a nature or extent that would mean that the proposal would not be generally in accordance with the approved development plan.
5. As agreed to by the parties at the hearing, given the need for a timely decision to enable the permit application to progress, we have provided short reasons.

1. The site has an area of about 4 hectares. The approved development plan provides for an integrated development of medium rise, affordable rental housing[4] of approximately 500 new dwellings, together with a limited commercial component.
2. The development plan is generally confined to the boundaries of the subject land, although it depicts its immediate interfaces, including the Fullard and Narre Warren Cranbourne Road reserves to the south and east, the railway line and associated reserve to the north and the Melbourne Water reserve to the west. It also notes the adjoining, existing day hospital facility to the south east.
3. The stated purpose of the development plan is "to demonstrate the general form of use and development of the land before a planning permit can be issued". It is divided into a series of notated plans, each of which is accompanied by objectives and a response statement in point form. It also commences with an assessment of how the development plan responds to the key issues to be addressed under Schedule 15 to the Development Plan Overlay.

Comments on case law on "generally in accordance with"

1. There are numerous decisions of the Tribunal that have applied the test contained in the Development Plan Overlay, most notably Canet v Brimbank City Council[5]. This decision was relied on by each of the parties in this proceeding, although applied differently.
2. Essentially, case authorities including Canet provide that:
   • General accordance is a question of fact, to be assessed on the facts and circumstances of each case;
   • The less precision there is in the primary document/s, the more flexibility is given by the phrase "generally in accordance with";
   • "Generally in accordance" does not require the proposed development to be identical to that described in the development or master plan; and
   • It is appropriate to read the development or master plan as a whole when making this assessment.
3. In our view, while the application of the "generally in accordance with" test will vary according to the facts and circumstances of each case, we do not think that this should involve an assessment akin to laying an application plan on a light box above an approved development plan and then undertaking a "spot the difference" examination.
4. Rather, the question before us is whether the departures identified by the responsible authority are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the approved development plan. We agree with Mr Taylor that this stage of the process can usefully be described as being a "gateway test".
5. It is expected that there will be a progression or refinement of numerous aspects of a development plan between its approval and the preparation of detailed application plans. To this extent, it is relevant that the requirement in the planning scheme is not that any permit issued be strictly "in accordance with" a development plan. As a minimum, however, there must be a fair degree of uniformity between the key aspects of a development plan, particularly where they are provided in detail, and the proposal for which a permit is sought.[6]
6. We substantially agree with the evidence of Mr Clarke, that what is immediately apparent about the development proposal is that it exhibits a high level of parity with the approved development plan, most notably in terms of the outline of buildings and their positioning on the site, the identified heights of buildings and the broader site layout.

15 With the exception of one key component of the plan, being the pedestrian/bicycle path and open space area within the western portion of the site, we would have formed the view that in all other respects, the proposal was generally in accordance with the approved development plan.[7] At the same time, we note that some additional refinements will still be necessary before a permit issues in order to arrive at a finding that the proposal satisfies the operative provision of the Development Plan Overlay.

1. These reasons will address what we consider to be the key issues raised in this proceeding, acknowledging that there are other departures from the approved development plan that we have also given due consideration to in reaching our decision, but have not documented separately.

17 In general, we consider that the amended plans combined with the plans originally lodged with the responsible authority adequately incorporate requirements for acoustic attenuation as featured in the Development Plan. Specified measures include acoustic fencing along the boundaries adjacent to the railway reserve and Narre Warren Cranbourne Road, limited upper level windows on these elevations and a notation that walls and windows of Building A are to be acoustically treated.[8]

1. While the development plan did not expressly identify Building B as requiring acoustic treatment, in processing the permit application, it may also be desirable to include acoustic attenuation to this building, going beyond the strict wording of the development plan.

Presentation of external elevations of buildings G1& G2 and H1&H2

1. We do not support the responsible authority's concern that the external elevations of Buildings G1& G2 and H1&H2 are insufficiently articulated or are poorly presented. We are also influenced by the context of these immediate abuttals, as depicted in photographs tendered at the hearing and described in the evidence of Mr Field, which requires a balance between the need to achieve appropriate building presentation, to buffer noise and to visually orientate these dwellings to a more attractive outlook within the site.
2. On the whole, we consider that these buildings are reasonably articulated over three levels, incorporate visible windows and balconies at first floor level and include vertical and horizontal design features to create visual interest in the building forms.

Acceptability of building form/dwelling type for buildings G1& G2 and H1&H2

1. The responsible authority submitted that these buildings did not provide townhouse style accommodation as depicted on the development plan. It referred to the notations on the diversity plan in particular.
2. Mr Clarke expressed the view that these buildings represent a "hybrid" between a townhouse and an apartment, and were generally in accordance with the overall intent of the development plan. We agree.
3. We think that there is little to be gained from a debate about the meaning of a "townhouse". Rather, the preferable scope of enquiry is whether the proposed buildings would meet the objectives of "providing for contrast between different building types" and "providing a range of housing types and building forms to provide a mix of dwelling sizes to encourage a mix of residents".
4. There are a number of features of the design of these proposed buildings that we consider constitute a sufficient response to these and other relevant aspects of the development plan, including:
   • their linear form;
   • their position on the site;
   • their role in buffering the residential complex from the railway reserve and main road;
   • their 2-3 storey scale; and
   • their provision of substantial numbers of an alternative form of dwelling which provides for direct ground floor access and accommodation, with associated ground floor private open space.

We note that the development plan provides for buildings of 2-3 storeys height along this part of the site and, in this metropolis, 3-storey ground access dwellings are rate in the extreme.

1. On this analysis, we do not think it is fatal that there are also number of proposed dwellings within buildings G & H that are not strictly of a 'townhouse' format.

1. The responsible authority's main concern with this aspect of the proposed development was that it would create uncertainty in terms of the numbers of on-site parking and also the proportion of single-two-three bedroom dwelling units.
2. We accept the evidence given by Mr Clarke that this aspect of the proposal is an acceptable refinement to the development plan. It is also one that would add to housing flexibility and diversity within the development overall, which is a key concept underlying the development plan.
3. We are of the view that there is a good level of variety in housing types across the development, providing for a mix of dwelling sizes across the proposed development whether the dual key apartments are incorporated or not. They would not overly disrupt the general balance sought to be achieved of approximately 25% studio apartments, 30% one bedroom apartments, 30% two bedroom and 15% three bedroom apartments as a general guide.

1. The development plan provides that car parking for the development "will be assessed under clause 52.06" of the planning scheme. We were advised that approximately 519 spaces are proposed.
2. The responsible authority had concerns that this amount of on-site parking may not be sufficient if apartments are configured with a "dual-key system", whereby a three bedroom apartment may be able to be used as both a one bedroom apartment plus a separate two bedroom apartment.
3. In the "gateway" assessment called for by this proceeding, it is not our role to examine the adequacy of proposed parking arrangements for the development in great detail. However, as indicated at the hearing, we do not consider that the inclusion of a requirement in the development plan to assess parking against clause 52.06 would enable the responsible authority to fix a rate for car parking at the stage it assesses whether the proposal is generally in accordance with the development plan, and to suggest that if it was not satisfied at that stage, the proposal must necessarily fail. Such an interpretation would result in a development plan precluding the discretion otherwise inherent in clause 52.06, which cannot possibly be right. The planning scheme is in the nature of subordinate legislation and a document approved pursuant cannot ordinarily operate to override a discretion conferred by the primary document.
4. In any event, we think that it is too early in the process to form a legitimate view that this aspect of the development plan has not been suitably responded to.

Architectural design across the proposed development as a whole

1. The responsible authority submitted that, in its view, the permit application did not display innovative building design and/or high quality/outstanding architectural design.
2. Mr Field described the design philosophy of the three clusters of buildings across the site. We note that he was instrumental in preparing the development plan and consider that he has a sound understanding of what the development plan seeks to achieve.
3. It is clear that the buildings are architecturally designed to a high standard and provide for a good pedestrian scale via their predominantly two to three storey podiums.
4. In addition, we consider that the extent of differentiation between each of the buildings, particularly in the central 'horseshoe', is sufficient to meet the objectives for a diversity of built form within and across the site as a whole. While they may share the same "building stamp", it is also significant to consider the stated design response in the development plan that:

Overall composition may either be read as 'one object' brought together by a focal point - Unity, or as a 'series of objects' to promote diversity.

1. We are also conscious that this proposal is for affordable rental housing, which in practice may constrain financial opportunities for "outstanding" architectural design. However, in terms of the comment by Mr Vorchheimer on behalf of the responsible authority, that these and other buildings across the site would appear "institutional", we note that the concept of what is or is not institutional architecture has a cultural influence. In this case, we conclude that the buildings' elevations amply demonstrate the presence of large numbers of individual dwellings and, in Melbourne's context, are quite un-institutional in character.

1. The responsible authority submitted that the proposed raised walkways between these buildings was not generally in accordance with the development plan, which shows a discrete separation between these buildings.
2. Casey Gardens submitted that the proposed design maintains the essential open space connectivity at ground level represented by the development plan between Narre Warren Cranbourne Road entry and the central open space area. It simply provides a lightweight walkway on two levels above, to provide increased amenity and leisure options for future residents.
3. We agree that this is not a notable departure from the development plan, being a change that is in the nature of a design refinement, permissible within the scope of "generally in accordance with".

1. The responsible authority submitted that the development plan limited the eastern and western wings of these buildings to three storeys in height, yet the corner elements are proposed to be four storeys.
2. On examination, this departure is extremely confined and we consider it to be inconsequential in the overall design objectives for these low to medium scale entry buildings. It is arguably also a design improvement, giving greater visual emphasis to the main approach axis to the site.

Presentation of buildings D & E to the Melbourne Water Reserve, revised vehicular entry to building D

1. The responsible authority submitted that these elevations were insufficiently articulated, having regard to the objectives in the development plan relating to external presentation of buildings.
2. We do not support this position. Notwithstanding the vehicular entry to building D, neither building has a "back of house" appearance or has been neglected in terms of architectural treatment. Each has a two level podium faced with the facades of dwellings which create a visually interesting form, including projections and recesses from framed balconies and other design features.
3. We consider that the relocation of the vehicular entry to building D is not a change that would constitute an unacceptable departure from the development plan. In our view, a change of this nature and scale can fairly be accommodated and Canet's case should not be interpreted to exclude this degree of flexibility.

Pedestrian/bike path beside Melbourne Water Reserve and the provision of open space along the western property boundary

1. On the facts and circumstances before us, this is the one aspect of the proposal that we find problematic in terms of being "generally in accordance with" the approved development plan, and we support the responsible authority's concerns in this regard. Mr Clarke in his evidence similarly acknowledged that the reliance by the proposed development on access through private land beyond the site's western boundary was "an area of specific non-compliance" with the approved development plan.
2. Using the terminology of the then Deputy President Horsfall in Canet's case, this departure comes within the category where an application proposes something different to that which is prescribed in detail by the approved development plan, and where the scope and extent of the difference is not insignificant in the context of the development plan.
3. The development plan shows one of the main pedestrian and cyclist paths for the site running from the south western corner of the property, around the proposed retarding basin/wetlands internally within the site and then along the western edge of the site itself. This path terminates in line with the vehicular entrance to building E. A minor driveway is intended to run on the eastern edge of this pathway to provide for emergency access.
4. The area along the western edge of the site is also identified as part of an open space link identified as "landscaped urban space" encompassing the Fullard Road frontage of the site, the wetlands and the majority of the western periphery of the site. The landscape plan identifies the land along the western side of the property for interface landscaping.
5. By contrast, the proposed development depicts a pedestrian/bike path almost exclusively within the Melbourne Water reserve to the west (largely off site), with small portions traversing/providing entry to the subject land and connecting with the proposed pedestrian bridge to Austin Street and the train station. In its place, on the subject land, an emergency vehicle entry runs into the site to the west of building B and along the northern edge of the wetlands and along the western periphery of the site. We were advised by Mr Field that the area either side of this emergency access road would be in the order of 1.5-2 metres and would provide an opportunity for landscaping. We also note that a roundabout and proposed vehicle entry to building D would take up a notable portion of the designated pedestrian/bike path on the western edge of the site.
6. We consider that an important aspect of the approved development plan was the provision of a significant pedestrian/bike path on the western side of the site, within the development site as a whole. This would enhance the Melbourne Water Reserve and provide meaningful opportunities for additional interface landscaping. It would also represent a physical expansion of the public realm, contributed to by private landholding.
7. While the proposal for a pedestrian/bike path predominantly within the Melbourne Water reserve may, on consideration of the planning merits, achieve a satisfactory outcome, this is not the proper test where there is a development plan in place. If an amended alignment is to be preferred, the development plan would need to be amended accordingly.
8. It is also relevant that, at this stage, Melbourne Water has not indicated that it would be prepared to consent to this proposal. In the absence of this, it is entirely uncertain as to whether this key component of the development plan is capable of being provided at all.
9. There is a practical option to amend the proposed development to restore this linkage with its joint opportunity for meaningful open space on this part of the site itself. This would bring the proposed development as a whole back in line with the development plan, such that it would be generally in accordance with it. In any redesign, attention also should be given to the need to adequately separate pedestrian/bike traffic from the vehicular entry to Building D.

Landscaping and proposed removal of trees from the frontage

1. The development plan provides for the retention of "significant" trees within the property frontage. On this basis, we think that there is reasonable scope to adopt the findings of Mr Galbraith, arboriculturalist, that the Monterey Pines proposed to be removed from the south west corner of the property do not fit this description, objectively assessed. We consider that their proposed removal would constitute an acceptable deviation from the development plan.
2. The responsible authority submitted that the proposed landscaping in areas of the site (such as the gravel surfacing of the main open space area) would not result in an attractive presentation as called for by the development plan. It was also concerned that the building ends were insufficiently resolved in urban design/landscape terms.
3. We consider that these are matters that could be addressed by the responsible authority in processing the application for the permit. This is a question of further design detail, not of compliance with the development plan.
4. For the present purposes, however, we think it sufficient that open space areas of adequate siting and dimension are provided to enable an attractive design to be implemented as is sought by the development plan. It is useful to go back to the wording of Clause 43.04-1 which provides that a permit granted must be generally in accordance with a development plan. To our mind, this enables an application to be refined or permit conditions to be imposed to bring the proposal generally in line with the development plan at the stage a permit is issued.

1. To an extent, the same comments apply to the ESD plan submitted as part of the permit application. In our view, the responsible authority was correct to be critical of the plan in that it does not entail any specific commitments to incorporate various ESD measures into the development - it simply outlines what was possible.
2. At the present time, we are not satisfied that this aspect of the proposal has been demonstrated to be generally in accordance with the development plan. Notwithstanding, we think that there is scope for this to be readily addressed before a permit issues, by adequately incorporating the objectives and response outlined in the development plan as a minimum.[9]

Remaining matters identified by the responsible authority

1. Numerous other aspects of the proposed development were considered by the responsible authority to cumulatively amount to a proposal that would not be generally in accordance with the development plan. In our view, these residual matters, while not being precisely in accordance with the development plan, are comfortably within the scope of "generally in accordance" with the development plan, considered together or standing alone.

1. We find that the development proposed in Application No. P365/09 would be generally in accordance with the approved development plan provided that the following amendments were made prior to the issue of a permit:

1. Provision is made for a functional and adequately dimensioned pedestrian/bicycle path and area for interface landscaping on the western side of the site itself, with consequential amendments to the proposed buildings and internal access roads/vehicular entries; 2. ESD measures to be incorporated into the proposal are expressly articulated in line with the objectives and response documented in the development plan; and

1. The proposal for landscaping is refined to more adequately respond to the objectives and responses contained in the development plan as a whole.

[1] Casey Gardens Development Plan, Version 1.2. This plan was the subject of public exhibition and no third party objections were received.

[2] Clause 43.04-1 of the Casey Planning Scheme, noting that Schedule 15 applies, pertaining to Residential Redevelopment Areas. The land is also located in the Residential 2 Zone, a purpose of which includes the encouragement of "residential development at medium or higher densities to make optimum use of the facilities and services available".

[3] Under section 149A(1)(a) of the Planning and Environment Act 1987. To the extent that any questions of law require determination in this proceeding, the decision has been made by Member Cook, who is a legal practitioner.

[4] To be operated by Mission Australia. We were advised that a substantial component of the proposed development has already obtained funding through the National Rental Affordability Scheme and that further grant applications were currently being assessed.

[5] [2003] VCAT 13, a decision of then Deputy President Horsfall.

[6] Quentline v Maroondah City Council [2008] VCAT 1415.

[7] Casey Gardens submitted amended plans of the proposed development before this hearing, making revisions to buildings G1& G2 and H1&H2. We have based our assessment of the application on these plans.

[8] The latter was called for to address potential noise emissions from the existing concrete batching plant to the south east.