1. Leave is given to the applicant to lodge an application for review pursuant to section 149 of the Planning and Environment Act 1987 in respect of the decision of the responsible authority to revoke the approved development plan under the Development Plan Overlay within 14 days of the date of this order.
2. In the event that an application is made under order 1, it will be listed for hearing at the same time as this application, P1681/2007.

Mr Nick Crawford, solicitor, of Best Hooper, and Mr Roy Costa

1. This proceeding is an application under section 77 of the Planning and Environment Act 1987 to review the refusal by the council to grant a permit for a 33 lot subdivision. The subject land is in the Residential 1 Zone under the Mildura Planning Scheme and is affected by the Development Plan Overlay Schedule 1 (DPO1) and Salinity Management Overlay. The council's reasons for refusal are:

The proposal is prohibited under the provisions of the Development Plan Overlay pursuant to Clause 43.04 of the Mildura Planning Scheme, as a development plan has not been prepared for the area to the satisfaction of the responsible authority.

1. Under the Development Plan Overlay, a permit cannot be granted until a development plan has been prepared to the satisfaction of the responsible authority. The applicant says that there is an approved development plan known as the Irymple North South Outline Development Plan which is identified in clause 1.0 of schedule 1 to the Development Plan Overlay. Clause 1.0 provides as follows:

Requirement before a permit is granted areas for those areas with approved Development Plans.

A permit may be granted to use, develop or subdivide land which is generally in accordance with the following approved Development Plans to the satisfaction of the Responsible Authority:

• Irymple (Karadoc and Sandilong) Outline Development Plan

1. The council acknowledges that the Irymple North South Outline Development Plan was approved by it on 27 February 2003. However, on 7 June 2007 the council resolved as follows:

The Irymple North South Outline Development Plan referred to in Schedule 1 to the Development Plan Overlay is not to the satisfaction of the responsible authority. Council will consider the adoption of the Development Plans for Irymple and Nichols Point area after the gazettal of the Development Contributions Plan No 2 (DCP#2).

1. The question I must decide is whether the council's resolution on 7 June 2007 means that there is now no approved development plan under DPO1 notwithstanding identification of the Irymple North South Outline Development Plan as an approved development plan in schedule 1 to the Development Plan Overlay. This question involves consideration of the words in clause 1.0 of the schedule, "to the satisfaction of the Responsible Authority". Do they mean that the approved development plans must be to the satisfaction of the responsible authority, and consequently the responsible authority can choose to be no longer satisfied by them? Alternatively, do the words relate to the requirement for permit applications to be generally in accordance with the development plans?
2. In my view, poor drafting of the schedule to the Development Plan Overlay has created ambiguity and evidences a poor understanding of the essential nature of the Development Plan Overlay and the role of the schedule to the overlay.
3. The VPP Practice Note Applying the Incorporated Plan and Development Plan Overlays identifies important differences between the Incorporated Plan Overlay and the Development Plan Overlay:

Although both overlays have similar purposes, they are different. Before deciding which overlay to use, the key difference between them must be understood.

• If the planning authority uses an IPO, the plan will be an incorporated document, part of the planning scheme. A planning scheme amendment will be needed to introduce or change the plan.
• If the planning authority uses a DPO, the plan will be a development plan. A development plan is not incorporated into the planning scheme. It can be introduced or changed 'to the satisfaction of the responsible authority'. A planning scheme amendment is not needed.

1. There was no need to include clause 1.0 in schedule 1 to the Development Plan Overlay. It undermines the flexibility provided by the most significant feature of the Development Plan Overlay, namely that development plans are not part of the planning scheme and do not need to be identified in the planning scheme, therefore no amendment to the planning scheme is required in order to change them.
2. Further, clause 1.0 is superfluous when regard is had to the provisions of the overlay, in particular clause 43.04-1, which provides as follows:

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.

1. Thus under the provisions of the overlay, a permit cannot be granted until a development plan has been prepared to the satisfaction of the responsible authority unless the schedule specifically states that a permit may be granted before a development plan has been prepared. This is what clause 2.0 of the schedule does. Clause 2.0 of schedule 1 relates specifically to the second paragraph of the provisions of clause 43.04-1. It is headed "Requirement before a permit is granted for those areas without approved Development Plans" and provides that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority for the purposes of a single dwelling on an existing allotment.
2. However, in areas with an approved development plan, which is what clause 1.0 appears to relate to, the second paragraph of clause 43.04-1 has no relevance. There is no need to specify in the schedule to the overlay that a permit may be granted to use, develop or subdivide land which is generally in accordance with an approved development plan, because that is already provided for by the first paragraph of clause 43.04-1. Nor can it be said that clause 1.0 of the schedule responds to the last dot point of clause 43.04-1, which provides that a permit granted must include any conditions or requirements specified in a schedule to the overlay. Clause 1.0 of the schedule does not specify any conditions or requirements that could be included in a permit. Therefore clause 1.0 is superfluous to the operation of the overlay. It adds nothing to what is already provided for in clause 43.04-1.
3. If clause 1.0 of the schedule is therefore otiose having regard to the provisions of clause 43.04-1 in the overlay itself, can any meaning be given to it, and if so, what?
4. The Irymple North South Outline Development Plan was adopted by the council on 27 February 2003 but not as a development plan under the Development Plan Overlay. DPO1 was not introduced into the planning scheme in respect of the subject land until 2005 as a consequence of Amendment C28. The plans adopted in 2003 were essentially structure plans, called development plans. They may have been prepared in contemplation of a planning scheme amendment but there appears to have been no Development Plan Overlay in existence at least over the subject land, at that time.
5. In my view, the effect of clause 1.0 of schedule 1 was to approve the named development plans as development plans under the Development Plan Overlay. I have concluded that the words in clause 1.0, "to the satisfaction of the Responsible Authority", were intended to continue to provide the discretion to the responsible authority to amend the approved development plans, which is provided for in clause 43.0403, and to provide a right of review under section 149 of the Planning and Environment Act 1987 in respect of any decision by the responsible authority in relation to the approved development plan. I consider that the words are an attempt to make it clear that by identifying the approved development plans in the planning scheme, this was not intended to remove the council's discretion to amend them.
6. Section 149 of the Act provides that a specified person may apply to the Tribunal for the review of a decision of a specified body in relation to a matter if a planning scheme specifies that the matter must be done to the satisfaction of the specified body. Clause 1.0 is awkwardly worded but it is difficult to see what else inclusion of those words was intended to achieve. The only alternative could be that it was the decision of the responsible authority as to whether an application to use, develop or subdivide land is generally in accordance with the approved development plan that needed to be to the satisfaction of the responsible authority. However, such an interpretation would be meaningless. Under clause 43.04-1 of the overlay, a permit granted must be generally in accordance with the development plan. If there is any dispute about this matter, it can be resolved in the context of an application for review in respect of the council's decision about the permit application itself.
7. A further issue to be determined is whether the council can not only amend the approved development plans referred to in 1.0 of the schedule, but withdraw approval altogether so that there is no longer any approved development plan applicable to the Irymple North South area.
8. In Glenavon Pastoral (Vic) Pty Ltd v Golden Plains SC[1], Justice Morris held that as a consequence of section 41A of the Interpretation of Legislation Act 1984, if a council expresses its satisfaction with a development plan it can subsequently revoke, rescind, amend or alter that approval.[2] This extends to a responsible authority, having given its approval or satisfaction in relation to a development plan, subsequently giving its approval or satisfaction in relation to a subsequent development plan (being inconsistent with the approved plan), not by way of amending the approved plan, but by way of a fresh approval. On this point, Justice Morris said:

[15] In my opinion there are sound reasons for concluding that a responsible authority can approve, or be satisfied with, a subsequent development plan in circumstances where a development plan has been approved or is to the responsible authority's satisfaction. The effect of such an approval (or expression of satisfaction) will be that the former plan, being superseded, will be effectively revoked or rescinded by the subsequent approval of the inconsistent development plan. This outcome is consistent with the power in clause 43.04, as enlarged by the Interpretation of Legislation Act. It is also a practical outcome, consistent with the underlying policy of the Development Plan Overlay.

1. In the present case, the council has by its resolution of 7 June 2007 effectively revoked the approved Irymple North South Outline Development Plan by withdrawing its satisfaction. It has not approved a new development plan, although it has foreshadowed that it will do so after gazettal of Development Contributions Plan No 2, presumably by way of an amendment to the planning scheme and introduction of a Development Contributions Plan Overlay over the relevant land, including the subject land.
2. At this stage it is unclear when the planning scheme will be amended. I was advised that on 2 August 2007 council adopted Amendment C42 which introduces Development Contributions Plan No 2 into the Mildura Planning Scheme. It has not yet been approved by the Minister or gazetted.
3. According to the council, approval of the proposed subdivision prior to gazettal of Amendment C42 and the application of a Development Contributions Plan Overlay over the subject land would result in a significant shortfall in funding required to provide necessary infrastructure for this precinct. For its part, the applicant would prefer to get a permit for the subdivision without being liable for development contributions. It is undoubtedly the council's intention to ensure that the subdivision will be liable for development contributions which has led the council to revoke the adopted Irymple North South Outline Development Plan, thus creating a situation where there is no approved development plan under the Development Plan Overlay and therefore no permit for subdivision can be granted.
4. In Glenavon Pastoral (Vic) Pty Ltd v Golden Plains SC, Justice Morris suggested that if a council subsequently revokes, rescinds, amends or alters an approved development plan -

[12] ... It is likely that before doing so the responsible authority would have to provide an opportunity for affected stakeholders to be heard, but I need not pursue that matter further in this proceeding.

1. These comments are obiter and I do not necessarily agree with them given there is no formal or statutory process specified for the approval of development plans in either the Act or the planning scheme. However, section 149 of the Planning and Environment Act 1987 enables a specified person, such as the owner or developer of land directly affected by the matter, to apply to the Tribunal for the review of a decision of the responsible authority in circumstances such as the present. I consider it is open to the applicant to apply for a review of the decision of the council to revoke the approved Irymple North South Outline Development Plan. The applicant has not lodged any application under section 149 at this stage, and indeed may choose not to do so, but I consider that natural justice requires an opportunity to be given. Any such application should be heard and determined together with the proceeding in application P1681/2007. Any arguments about prematurity or orderly and proper planning, as raised by Mr Stokans on behalf of the council, need to be considered in the context of such application for review, not now.
2. In conclusion therefore, I make the following legal findings:

1. Clause 1.0 of schedule 1 of the Development Plan Overlay approves the named development plans as development plans under the Development Plan Overlay. 2. With respect to the subject land, the approved development plan is the Irymple North South Outline Development Plan adopted by council resolution on 27 February 2003.

1. Clause 1.0 of schedule 1 to the Development Plan Overlay gives the council a discretion to amend the approved development plans to the satisfaction of the responsible authority in the same way as provided by clause 43.04-3 of the planning scheme.

1. A power to amend the development plan includes a power to revoke the development plan. 2. By its resolution on 7 June 2007, the council revoked the Irymple North South Outline Development Plan as the approved development plan under the Development Plan Overlay. 3. The applicant has a right to apply to the Tribunal for a review of this decision pursuant to section 149 of the Planning and Environment Act 1987.

[1] [2005] VCAT 1095

[2] [2005] VCAT 1095 at [12]