1. In application P90/2025 the decision of the responsible authority not to approve the development plan under application number PDP1121 is set aside.
2. The responsible authority is directed to approve the development plan under application number PDP1121 prepared by elevliplus dated 13 December 2024 with the following changes to the text:

(a) Under the heading 'Use of the Land', the first dot point should be amended to 'Language education'.

(b) Under the heading 'Patron numbers and hours of operation' the first sentence should be amended to:

Unless with the prior written consent of the responsible authority, the number of patrons on the Land is limited to 40 patrons.

Emma Peppler of counsel instructed by Jessica Kaczmarek of S&K Planning Lawyers Pty Ltd who called expert evidence from:

• William Bromhead, town planner, Ratio Town Planners
• Thomas Evans, acoustic engineer, Resonate Acoustics

The following expert provided a witness statement but was not called to give evidence:

Mimi Marcus lawyer of Marcus Lane Group who called expert evidence from:

• John Glossop, town planner of Glossop Town Planning

The reuse of an existing dwelling with minor alterations and the provision of car parking to provide a community centre.

Application under section 149(1)(a) of the Planning and Environment Act 1987 (Vic) - to review the refusal to approve a development plan.

Rural Living Zone ('RLZ') - clause 35.03[1]

Development Plan Overlay Schedule 8 ('DPO8)' - clause 43.04

Under the DPO a permit for use, subdivision, or to construct a building or construct or carry out works cannot be granted until a development plan has been prepared to the satisfaction of the responsible authority.

The subject site is a rectangular shaped allotment of 1.2 hectares with a 59 metre frontage to Mt Ridley Road. The subject site is flat and contains a dwelling and some shedding. It is generally cleared of vegetation but retains some ecological values to the rear including two large eucalypts. This area is not proposed to be affected by the proposal.

To the west, north and east the subject site is bounded by larger lots in the RLZ. The southern boundary of the site is Mt Ridley Road, a two-lane two-way arterial road which will be duplicated in future as nearby urban development proceeds. The frontage of the property contains a Public Acquisition Overlay for future road duplication which has already been fenced off from the subject site. Land south of Mt Ridley Road is in the Urban Growth Zone and has been developed in recent years at standard residential densities.

1. Craigieburn Hub Pty Ltd ('applicant') seeks to use an existing dwelling (shown in figure 1) on the subject site for an Indian Muslim group to hold meetings, conduct language classes and use the dwelling as a community centre. To facilitate the use requires internal alteration, a modest rear extension and works to provide car parking.

Figure 1: Existing dwelling from Mt Ridley Road (from Bromhead evidence)

1. The subject site is in the Rural Living Zone ('RLZ') within the Urban Growth Boundary ('UGB') in the Inter Urban Break ('the break') between residential development in Craigieburn and Mickleham (figure 2).

Figure 2: Zones and DPO8 (hatched) (from Glossop evidence)

1. The community centre use requires a permit under the zone as a 'Place of assembly' as do the building and works. The subject site is covered by the Development Plan Overlay Schedule 8 ('DPO8'). Under the overlay at cl 43.04-2:

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.

1. If a development plan has been prepared and approved, then a permit issued must be generally in accordance with the approved plan.
2. The applicant lodged a development plan application on 20 December 2024.[3] On 31 January 2025, no decision on the development plan having been made, the applicant lodged an application with the Tribunal, a deemed refusal having been made under s 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
3. The development plan consists of three plan sheets and two pages of text. Figure 3 shows the plan sheet D002 with the proposed floor plan and site parking to the rear.

Figure 3: Extract from development plan (north to right of page)

1. On 14 March 2025 Hume City Council ('council') advised that it would have refused the application on the following grounds:
   1. The proposal is contrary to the requirements of the Development Plan Overlay Schedule 8.
   2. The proposal will not contribute to the integrated development of the area.
   3. The proposal will facilitate a land use outcome which is contrary to the intent of the Inter-Urban Break and the Mt Ridley Local Structure Plan.
   4. The proposal is contrary to the objectives of the Planning and Environment Act 1987, as it does not provide for fair and orderly planning.

1. Having heard the submissions and evidence and inspected the site and surrounds, I consider the key issues to be determined are:
   • Is the development plan consistent with planning for the inter urban break?
   • Will offsite amenity in the RLZ be affected to an unacceptable level?
   • Will traffic from future development be able to be accomodated on the road network?
   • Are amendments to the development plan appropriate and required?

IS THE DEVELOPMENT PLAN CONSISTENT WITH PLANNING FOR THE INTER URBAN BREAK?

1. As shown in figure 2, the site is within a designated break between Craigieburn and Mickleham within the UGB.
2. Policy supporting the break is in the Hume Planning Scheme ('planning scheme'). In cl 02.03-1 in the Hume Corridor it is recognised as:

...a permanent separation between Craigieburn and Mickleham that protects biodiversity and landscape values in private and public land provides for the ecological connectivity between the Mt Ridley Conservation Reserve and conservation and open space areas in Craigieburn.

1. A strategy in the clause is maintenance of the break with larger detached housing in low density rural residential development to protect the conservation of biodiversity and landscape values.
2. The break is identified on the Strategic Framework Plan at cl 02.04-2 as Low density/rural living and Inter Urban Break.
3. Maintenance of the break is also identified as a strategy in cl 11.01-1L-01 Settlement - Hume. It is also identified in cl 12.01-1L Protection of biodiversity - Hume to provide for ecological connectivity and support larger detached dwellings on larger lots.
4. Essentially council's view is that the use and development proposed, and thus the approval of the development plan as a prerequisite for that use, is inconsistent with the strategic role of the designated break.
5. It submits that the community centre will introduce a non-residential use into an area and zone that currently contains dwellings on expansive lots and will undermine the 'permanent separation' envisaged in the strategic planning for the break.
6. Council submits that the integrity of the break has existed for many decades, it being originally derived from the Mt Ridley Local Structure Plan from 1997.[4] It submits the only significant intrusion of a non-residential use is the Hume Anglican Grammar School further east along Mt Ridley Road. This resulted from a site-specific Ministerial amendment.
7. Council is concerned that introducing an 'urban' use into the rural living area will compromise the break and potentially be used to support other applications for other such uses in the break.
8. The applicant's submissions are that the planning scheme is supportive of the proposal overall when considering net community benefit. It argues in particular that the proposal will have very little effect on the break because, in summary:
   • The site is small within the break;
   • The proposal will result in minimal visual change to the site as the majority of the works are to the rear of the existing dwelling; and
   • There will continue to be a clear landscape and character difference in the break in this area.
9. Because of these factors, the applicant submits the proposal will have little or no effect on the break as the appearance of the site within the break will be virtually unaffected. It also submits that the policy for the break is not explicit in expressing there be no non-residential use in the break.
10. Town planning evidence was called by both parties. Mr Glossop for council and Mr Bromhead for the applicant both identified relevant policy affecting the break but diverged in their conclusions as to the acceptability of approving the development plan and thus allowing for future consideration of a planning permit.
11. Mr Glossop in his evidence placed a higher weight on the primacy of the break as a permanent separation between Craigieburn and Mickleham that protects biodiversity and landscape values by the maintenance of larger detached housing in a low density rural residential environment.
12. His view is that the proposal is not consistent with the original structure plan and will not result in orderly planning of the site. While acknowledging that the Tribunal is not bound by precedent, he noted that approval of the proposal will still 'send a signal' about the future of the area. Overall, he concludes the proposal will not result in a net community benefit.
13. Mr Bromhead in his evidence also identified policy around the break but his evidence concluded that the reuse of the existing dwelling will have little effect on the break's integrity and given its location on an arterial road to be widened in future, will not compromise the rural residential nature of the area.
14. His view is that the development plan responds suitably to the DPO and provides a framework for the proposed use and development which is allowable, via permit, in the zone.
15. Mr Bromhead also placed significant weight on the social benefit of the proposal, that being a community meeting place catering specifically for the Indian Muslim community in this area within an existing built form and with acceptable offsite amenity impact. He drew more widely in the planning scheme on what he says are relevant policies around demographics, services and infrastructure.

1. It is somewhat difficult to find a positive association of the proposal with the purposes of the RLZ, except perhaps, as argued by Mr Bromhead, finding some support in the general purpose 'To implement the Municipal Planning Strategy and the Planning Policy Framework'. Despite this, 'Place of assembly' is a section 2 use in the zone and may be allowed subject to a planning permit.
2. The decision guidelines in the zone require consideration of a number of general issues, agricultural issues, environmental issues and design and siting issues. When assessed against these the proposal in my view is relatively neutral:
   • It is not compromising the suitability of the site or adjoining sites for agriculture.
   • It should not have meaningful impacts on site environmental values, and environmental values may be improved with landscaping.
   • Impacts on design and siting should be minimal as the appearance of the property from Mt Ridley Road will be essentially unchanged.
3. These are all matters which will need to be considered by council at the time of a planning permit application and I do not seek in any way to fetter their future decision making. In making my decision on the development plan however, I have found it useful to cast my mind forward to the decision-making framework in the zone.
4. The development plan is required under DPO8 before a permit can issue. The development plan as put forward is for a single lot of 1.2 hectares. In my experience a development plan is typically used to coordinate land use planning for infrastructure such as the road network, drainage and subdivision, often across larger areas with multiple landowners. That being said no one sought to argue that it cannot occur, and the DPO8 itself includes a 'Specific area development plans' section.
5. Section 4 of DPO8 includes the matters that must be considered before deciding that a development plan is satisfactory. Many of the matters are of limited relevance and relate to a broader development plan as outlined above, including matters such as road layouts, open space and drainage infrastructure.
6. The 'Urban Beak at Craigieburn Local Policy' is specifically called up in the schedule and relevant items include consideration of the objectives of the Inter Urban Break at Craigieburn Local Policy and the protection and enhancement of the natural environment and character of the area.
7. Specific area development plans are to include site specific detailed elements such as site layout, building height, design requirements and landscaping.
8. Having reviewed the development plan and relevant policy, I am satisfied that the development plan should be approved, meeting the prerequisite for a future consideration of a planning permit for the proposal. My reasons for this view are as follows.
9. There is limited impact from built form on the character of the area. The reuse of an existing dwelling will result in minimal impact on the character of the break. Works at the rear including parking will mean that the presentation of the subject site to Mt Ridley Road will be nearly indistinguishable from its current arrangement.
10. There will be low environmental impact. The proposal will maintain the open nature of the break and still provide for the overall ecological and biological corridor/linkages that are sought in policy. The environmental value of the specific area of works is low and landscaping provides the opportunity to reinforce the character and environmental values of the subject site within the break; this can be addressed further during consideration of a planning permit.
11. I note council's submissions that approval of the development plan may result in some sense in a lessening of the 'protection' of the break, particularly if this goes on to result in the issuing of a planning permit for the proposed use and development.
12. I accept that this is a valid concern, however in my mind it does not outweigh the very limited physical impact that this proposal should have on the break. When weighed with the positive social benefit for the applicant, and by extension for the wider community, I don't consider that refusing to approve the development plan is reasonable or proportional to the risk to the break.
13. I must consider the proposal before me, and I conclude that it is an acceptable planning outcome in this context. I address a number of other matters in the following sections.

WILL OFFSITE AMENITY IN THE RLZ BE AFFECTED TO AN UNACCEPTABLE LEVEL?

1. Offsite amenity impacts did not form a ground of refusal by council, but it identified in its submission that the RLZ in its purposes refers to amenity protection.
2. Council also submits that Planning Practice Note 42 - Applying the rural zones, acknowledges that 'residents have a reasonable expectation that their amenity will be protected' in the RLZ.
3. The development plan includes the following elements, in summary, that go to reducing amenity impacts:
   • Prohibition on use of the community centre for weddings and funerals.
   • Limiting patrons on site to 40.
   • Operating hours limited to 7.00am - 8.00pm, seven days a week.
   • No music before 9.00am on a Sunday.
   • No external amplification of music.
   • Limits on delivery hours and waste collection.
4. Mr Glossop concluded that '... there appears to be no unreasonable off-site amenity impacts associated with the proposal although there is a lack of clarity about how services will be delivered'.
5. His view is that off-site amenity impacts can be managed by condition on the permit, but that a limit on the use of no later than 6.00pm and not on Sundays or public holidays would be appropriate, given the entitlement to a higher (urban) standard of residential amenity in the RLZ.
6. Mr Evans' evidence in acoustics addressed a number of amenity matters. It included a preliminary acoustic review ('preliminary review') also undertaken by Resonate Acoustics. The preliminary review included, in summary:
   • Background noise levels on the site during the day and night are consistent with outer urban areas, with the lowest background noise being between 2.00am - 5.00am.
   • The noise environment is dominated by traffic on Mt Ridley Road with other sources being wind, birdsong and occasional aircraft flyovers.
7. Mr Evans noted that the preliminary review was consistent with his observations on the site. He also agreed with the preliminary review that noise from within the building and mechanical plant are likely to be low risk of causing adverse amenity, and noise from vehicle movements and car parking are likely to be a more significant risk.
8. His assessment concluded that predicted noise from mechanical plant, the carpark (vehicles and slamming doors), and patron and music noise is within the guidance provided by the regime under the Environment Protection Act 2017, regulations and the noise protocol.[5] His evidence was that reduced hours in the evening or on public holidays and Sundays are not necessary to meet noise limits.
9. He noted, and supported, that the development plan requires a subsequent planning permit application to include an acoustic report prepared in accordance with the noise protocol which includes management and mitigation measures for noise.
10. Council did not take issue with Mr Evans' evidence and did not question him in the hearing.
11. The applicant did not agree that limiting hours until 6.00pm was necessary or reasonable, submitting that classes after working hours could not feasibly be held if such a limitation was imposed. It also didn't accept that limitations on Sundays or public holidays were appropriate, as these would likely be days when the community would wish to gather.

1. I accept that the RLZ, while a rural zone, has higher amenity expectations than other zones in the rural suite which are more focused on agricultural production. By its nature and purpose the RLZ is to accommodate residential use in a rural setting. In this case however the physical context of the RLZ, and particularly the location of the subject land on its southern edge, is relevant to the overall consideration of amenity expectations.
2. Consistent with Mr Evan's observations, on the day I visited, the amenity of the subject site was affected by significant traffic on Mt Ridley Road. I also noted a contribution to noise from traffic on Forest Red Gum Drive to the west. A number of commercial jet aircraft went overhead, and I also heard the sounds of nature in birdsong and frogs in the pond at the rear of the property.
3. In short, the amenity of the subject land is subject to a number of urban influences in addition to the more rural elements. Amenity expectations in my view must be tempered by this existing environment, and as noted, particularly on the edge of the RLZ abutting urban land and an urban arterial road.
4. Based on the existing environment and the evidence of Mr Evans, I do not consider that the proposed use with its limitation on number and operating hours will lead to unacceptable adverse off-site amenity outcomes. I am also not persuaded that the reduced hours in the evening or prohibiting the use on Sundays and public holidays as suggested by Mr Glossop is justified for the relatively low level of use proposed.

WILL TRAFFIC FROM FUTURE DEVELOPMENT BE ABLE TO BE ACCOMODATED ON THE ROAD NETWORK?

1. Mr Sellars provided an expert witness statement in traffic but was not called to give evidence and council did not contest his key findings.
2. Having reviewed his evidence I am satisfied that:
   • The statutory requirements for car and bicycle parking for 40 patrons are met and exceeded.
   • A car park for disabled people is being provided in accordance with the Building Code of Australia.
   • Waste collection arrangements can be comfortably accommodated.
   • The development will generate very low levels of traffic relative to the traffic on Mt Ridley Road.
   • While traffic numbers on Mt Ridley Road suggest that the warrant is met for short turning lanes, particularly the right turn in from a westbound approach, this is an issue that can be considered in detail during consideration of a future planning permit.
3. Overall, I consider the traffic issues do not weigh against the approval of the development plan.

ARE AMENDMENTS TO THE DEVELOPMENT PLAN APPROPRIATE AND REQUIRED?

1. Amendments to the development plan before the Tribunal were considered in the hearing as follows:
   • Reduce the operating hours from 8.00pm in the evening to 6.00pm and not allow the use on Sundays and public holidays as per Mr Glossop's recommendation.
   • Minor corrections to the text of the development plan related to language classes and grammar.
2. There was some discussion as to whether I have the power to amend the development plan. I was taken to the decision of Deputy President Bisucci and Member Whitney in Parklea Berwick Pty Ltd v Casey CC [2024] VCAT 287. While in that case ultimately the Tribunal did not decide to approve a development plan, they confirmed the jurisdiction of the Tribunal and undertook a helpful review of the authorities, particularly in paragraphs 42-47. In this case the changes to be made are minor in the context of the development plan that was considered by council. I am satisfied that I can make such amendments using the powers under s 51(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
3. As discussed in the section on amenity in these reasons, I am not satisfied that the restrictions on operating hours are necessary or reasonable and I have not made that change.
4. The other changes are minor corrections, and I have made them via order.

1. My consideration is limited to the development plan, a prerequisite for a planning permit application in future. However, this logically requires me to consider the future use and development the development plan is seeking to facilitate.
2. In doing this I am cognisant of the long-standing policy support for protecting the inter urban break in this area and I understand and appreciate council's effort's in maintaining the break.
3. In this matter however, I am satisfied that the net community benefit lies in approving the development plan due to the limited physical and amenity impact the use and development will have on the break, and the social benefits to be obtained for the Hume community in allowing the community centre to successfully operate on the site.
4. For the reasons given above, the decision of the responsible authority is set aside. The development plan under application number PDP1121 is approved subject to minor changes in these orders.

[1] There is a schedule to the zone which is not relevant to this application.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] There were a series of previous development plan applications in 2024 which are not relevant to my consideration.

[4] The Structure Plan is a reference document in some parts of the planning scheme, notably some Environmental Significance Overlays, but is not a reference document in DPO8.

[5] Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues Publication 1826.4.