1. Building 1B-16 in the PDP may be used for either commercial or residential use with a zero metre setback. The changes proposed reinforce this position at ground floor. 2. The applicant intends to lodge a planning permit for a 4 - 7 storey Student accommodation building on 1B-16 that necessitates the request to amend the PDP.
2. The letter also explains that it specifically includes a new 'local context' page 13a to be added to the PDP that addresses the emerging built form context associated with the La Trobe University's 2014 Melbourne Campus Master Plan (MCMP). The MCMP advocates blurring the campus edges and linking traditional academic uses with community and commercial uses as well as creating a seamless transition between development on the university land and the Polaris Town Centre.

WHAT IS THE DECISION MAKING CONTEXT TO CONSIDER THESE CHANGES?

1. The PDP is approved in accordance with Schedule 1 of the Development Plan Overlay (DPO1). The schedule sits under clause 43.04 of the planning scheme that identifies the purpose of development plans is to implement the Municipal Planning Strategy and the Planning Policy Framework. The clause sets out that:
   • a permit must not be granted until a development plan has been prepared,
   • a planning permit must be generally in accordance with an approved development plan, and
   • a development plan may be amended to the satisfaction of the responsible authority.
2. Requirements for a development plan, as set out in the schedule to the overlay, include that the development plan 'should address the elements of the North East Corridor Strategic Plan relevant to the site'.
3. Guidelines for consideration of a development plan in section 2.0 of the schedule also direct that the responsible authority should consider whether:
   • the development plan is consistent with the North East Corridor Strategic Plan (NECSP); and
   • the location, bulk, height and appearance of any proposed buildings and works will be in keeping with the character of the area.
4. More broadly, clause 65 of the planning scheme also sets out that before deciding on the approval of a plan the responsible authority must consider, as appropriate, the matters set out in section 60 of the Act, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.
5. This leads me to find that there are two key questions I need to determine:
   • Have the proposed amendments adequately addressed the elements of the NECSP? and
   • Will the proposed building envelope lead to buildings and works in keeping with the character of the area?

HAVE THE PROPOSED AMENDMENTS ADEQUATELY ADDRESSED THE ELEMENTS OF THE NECSP?

1. The NECSP is an adopted council document approved in 1998, some 22 years ago and relies on metropolitan policy from 1995 and 1996.[3] The context of this plan is quite out of date with metropolitan policy now detailed in Plan Melbourne, and local policy detailed in the Planning Policy Framework of the Darebin Planning Scheme. The 2017 changes to the planning scheme's policy framework include policy that reflects Plan Melbourne's designation of Latrobe University as part of a National Employment Cluster and the Plenty Road corridor as an area of urban intensification consistent with other local policy and the DDO17 controls that apply to other parts of Plenty Road, outside of the PDP and La Trobe University land.
2. Mr Blades' written urban design evidence acknowledges the decision guidelines of the DPO1 require consideration of the NECSP and is therefore part of the context for his urban design assessment. In response to questions, however, Mr Blades acknowledged he had not considered the content of the NECSP in any detail, but Mr Blades was also clear in his written and oral evidence that his statement was prepared as an urban design expert, not a town planning expert.
3. Mr Biles' planning evidence makes no reference to the NECSP, either as a document to be considered in its own right, or that it is a requirement in the DPO1 to consider elements of this plan. Nor did Mr Biles elaborate on how this strategy should be addressed in his oral evidence.
4. From the assessment by Mr Blades and Mr Biles I am unable to conclude that either Mr Blades' urban design evidence or Mr Biles' planning evidence fully addresses the planning requirement of DPO1 to consider if the amendment to the plan is consistent with NECSP.
5. Mr O'Farrell's oral submission on behalf the applicant acknowledged that the NECSP has some relevance in my consideration. I agree. Firstly, I find this because I concur with the council's submission that it is a required consideration of DPO1. I also agree with Mr O'Farrell that the NECSP includes a vision that seeks new development to capitalise on the public transport and infrastructure along Plenty Road. The vision statement, however, also acknowledges that the area needs to integrate with the more sensitive Gresswell Grange area to the north-east of the PDP area. It is along Plenty Road that it anticipates higher building form to the rest of the PDP area.
6. The specific directions for the review area are set out on pages 29 - 31 of the NECSP is in a section headed 'Larundel Urban Village'. The labelling as an urban village is consistent with the New Urbanist planning principles that I am aware emerged in Victorian planning policy in the 1990s. These principles are also referred to as the New Town movement, as referred to in Mr Blades' description of development that has occurred in the PDP area.
7. The specific words and text on these pages of the NECSP however, that includes direction for two-storey development for most of the PDP area and three storeys along Plenty Road, are difficult to correlate with broader strategic planning and physical changes that have occurred in the area over the 22 years since the strategy's adoption.
8. The DPO1 requirements for a development plan only state that 'the Development Plan should address the elements of the North East Corridor Strategic Plan'. It does not direct that the PDP must be only in accordance with the corridor plan. The 'guidelines for consideration of a development plan' in the DPO1 schedule include one guideline that 'the responsible authority should consider whether the development plan or permit application is consistent with the North East Corridor Strategic Plan'. This is one consideration among a number, with the other key relevant consideration being 'whether the location, bulk, height and appearance of any proposed buildings or works will be in keeping with the character of the area'. The character of the area, and the drivers of the character of the area have changed since the NECSP was adopted by the council in 1998.
9. Other changes in policy of the planning scheme since 1998 and changes that have already been approved to the PDP also influence the character of the area. Notably these include changes already endorsed by the council for land at the corner of Main Drive and Plenty Road, approved in October 2019.
10. Considering the NECSP in the current planning scheme context reinforces that the landmark and intensity of built form is sought at the intersection with Main Drive and Plenty Road. The majority of the activity centre, however, has developed as two to three-storey development, respecting the heritage buildings in the area, consistent with the NECSP.
11. I find relevant elements of the NECSP in assessing changes to the PDP are the acknowledgement to have more robust building form at the Plenty Road edge, with lower order building form behind. The relevant question is then how this lower order building should respond to the existing and preferred character of the area, as it now stands.

WILL THE PROPOSED BUILDING ENVELOPE LEAD TO BUILDINGS AND WORKS IN KEEPING WITH THE CHARACTER OF THE AREA?

1. Both the council and the applicant, with deference to their respective experts, acknowledge that the site now sits adjacent to land to its west, abutting Plenty Road where development of five to nine storeys is envisaged. This includes policy in the planning scheme, along with provisions of DDO17 that applies to land elsewhere in Plenty Road, for built form taller than two to three storeys along Plenty Road.
2. The council has also issued a planning permit for an eight-storey mixed-use building at the north-east corner of Main Drive and Plenty Road in accordance with the PDP as amended in October 2019.[4] This permit includes a two-storey podium that is 13.3 metres high. The height is driven by the commercial form of the two podium levels, and accommodates slope on the land, particularly as it drops to the corner of Main Drive and Plenty Road. Above the podium, five hotel levels are proposed, set in 4.8 metres from the podium façade to Plenty Road.
3. Both Mr Blades and Mr Biles hold positions that building on the review site needs to integrate with this approved taller form but also to transition to the single-storey, heritage listed Linaker Centre to the east and the broader area. The difference in opinion and the positions of the two parties then varies about how this transition should occur.
4. In metric terms the two positions for built form on the review site can be summarised as follows:

2 metres but only if form above is two storeys, thereby creating an overall five storey building (so as to retain the podium as the prominent form to the street)

Setback needed, but no specific measure identified.

1. Mr Biles' position is derived from his view that:
   • The review site sits to the north-east of land in Public Use Zone 2 (PUZ2) that forms part of La Trobe University where buildings of up to 10 storeys or 35 metres is contemplated 'in line with the University's campus masterplan'.[5]
   • The proposed scale and massing approach will appropriately respond to the building heights supported by the council on the corner of Plenty Road so as to define the south-eastern quarter and gateway to the town centre, and give effect to a transition eastwards into the lower scale townscape that has already been developed.[6]
   • The overall height will be attenuated visually because of the location of the review land at the lower topographic levels to the south of the town centre where the proposed scale will not be seen as overly dominant of the town centre. As the review land is relatively shallow it also needs to address its interface to the decked car park to the north. A taller building on the site enables residential accommodation (student housing) to be lifted above the car park level and benefit from a northern aspect and mediate the level differences.[7]
   • Seven storeys, or 23 metres will not result in excessive shadow to the public realm or unreasonable visual bulk in a town centre context.[8]
2. In response to questions from Mr O'Farrell, Mr Biles stated that there is some possibility that the land to the north of the review site, currently occupied by a two-storey supermarket may redevelop with higher building form given the size of the site and the central location of this site in the activity centre.
3. I asked Mr Biles about why he considered a four-storey podium was acceptable. His response was to refer to some buildings in Copernicus Crescent that, while three storey, he says present effectively as four-storey street walls and work well.
4. Mr Blades' position is derived from his view that:
   • The review site's context to the broader PDP area is overwhelmingly characterised by a mix of 'New Town' commercial and residential contemporary built form of a maximum building height of three-storeys (approximately 10-11m above NGL), interspersed by aspects of retained heritage fabric (such as the 'Former Larundel Psychiatric Hospital' buildings and 'Hugh Linakers Cottage').[9]
   • The changes to planning policy and provisions along Plenty Road along with the MCMP for La Trobe University sets a context to support, in principle, a 'refresh' of the PDP aspirations for the review site.[10]
   • The physical context of the review site (including Main Drive) is critical. This is particularly given that the PDP area is large and complex. It does not consist of one single physical context but rather a number of 'micro contexts' that will inevitably influence potential built form outcomes on a more nuanced scale.[11]
   • The site's frontage to Main Drive has physical qualities that are more distinctly residential and lower order than Plenty Road including a narrower carriageway width, a local access role and existing lower order buildings to the east and south of the review land. These include the three-storey townhouses to the south at 1A Main Drive, the single-storey Linaker building to the east and the relatively recently constructed two-storey townhouses further east of Galileo Drive.[12]
   • Given the built form directions of clause 21.02-3 of the planning scheme, that includes direction to 'encourage high quality design and buildings that respond to the characteristics of the locality,' the design focus for development ought to be far more oriented toward responding to existing character rather than on the outright creation of a new, more robust built form character that holds the potential to overwhelm existing built form.[13]
   • His view is that it is a 'challenging leap of logic to tie a proposed building height of seven storeys on the subject site to that which may occur opposite the subject site on the La Trobe University landholdings.' This is because there are distinct physical differences in the size of the subject site and the La Trobe University landholdings, and the subsequent La Trobe University MCMP directions for height but with a minimum of 18m (approx.) setback for all height above a three storey podium to Main Drive.
   • There is scope for some taller form of development on the review site, provided it continues to make use of a maximum three-storey 'base'/street wall (circa 9-10m high [including slope]) to Main Drive. In this sense, an additional storey (or, potentially, two additional storeys up to a maximum height of 16 metres) set back behind the principal Main Drive façade of any future development would likely constitute an acceptable design outcome.
5. The council submits that it could accept an amendment to the PDP that allows for a building envelope consistent with Mr Blades' design parameters. Mr Blades' ultimate conclusion, however, is that the PDP should not be amended. While he supports an urban design outcome that could lead to a five-storey building with a three-storey podium, he concludes that a future design outcome 'generally in accordance with' the existing design aspirations of the PDP is appropriate. Mr Blades also commented in response to questions in cross-examination that his knowledge and expectation about how 'generally in accordance' with a development plan could be tested is limited to a layman's interpretation of this phrase.
6. From my consideration of the two expert opinions I find that the difference in formulating their views lies in how much the existing character should drive a new form on the review site, against the possible future character outcomes for the area, driven by the form to the west at the Plenty Road corner, to the south in the La Trobe University land and the general surrounding area.

What is the relevance of the MCMP in this assessment?

1. The applicant's submission sought to diminish the importance of the MCMP as it is not a reference document in the planning scheme, although Mr O'Farrell acknowledged it is an adopted plan of a public authority. The applicant sought to place greater emphasis on the fact that the PUZ schedule applying to the university land allows building of a number of non-education uses up to 10 storeys or a 35 metre high, without a planning permit.
2. The MCMP is an adopted document of a relevant public authority.[14] It was also a relied on by the applicant in its application to amend the PDP in December 2019 and referred to by Mr Biles in his evidence. It is also described in the new page 13a of the PDP as the context for proposed higher building form on the review site. I therefore find this document is relevant to my consideration.
3. Amendment C165 to the planning scheme, gazetted on 8 November 2018, amended the schedule to the PUZ to allow buildings of up to 10 storeys for non-education uses on the La Trobe University land. Prior to this amendment there was nothing in the schedule. A building of any height, on or behalf of the public land manager for 'education' purposes could have, and still can be, built on the university land without a planning permit. It is the MCMP that sets some strategic planning and urban design direction for the university land. This is consistent with the local context set out in the proposed page 13a of the PDP that the applicant seeks to be approved.
4. Before turning to the assessment of the proposal in detail, I firstly find that the proposed new context page 13a in the PDP requires amendment if it is to be approved.
5. The final paragraph on this proposed new page 13a states:

Both the PDP and MCMP recognise the functional and built form interlinkages between the two sites. Given this, and limited existing sensitive interfaces, it is appropriate that the southern edge of the Polaris Town Centre i.e. Building 1B-16 on Lot S3, should respond to the emerging and future character of the La Trobe University Town Centre with a similar podium and tower form and greater scale of 7 to 10 storeys.[15]

1. I find the two underlined sections are not appropriate.
2. I firstly disagree that the review site has limited existing sensitive interfaces. The land to the direct south of the review site at 1A Main Drive comprises a series of what appears to be individually held, three-storey townhouses. These are in a Mixed Use Zone, but I disagree with suggestions of the review applicant that these may redevelop to higher form in the near future. Their individual ownership leads to a more stable existing interface. The land to the east is the single-storey heritage building that is unlikely to change due to its heritage protection. Further east of this are more recently constructed two-storey dwellings that are also unlikely to change. These are all sensitive interfaces.
3. The second underlined section is not correct for two reasons.
   • Firstly, the DPO1 schedule expressly directs that the development plan needs to consider 'whether the location, bulk, height and appearance of any proposed buildings or works will be in keeping with the character of the area.' This must include consideration to the existing physical context, not a response only to an emerging or future character. Even the applicant's submission at the hearing was one that the MCMP should be given lesser weight as it is not a policy set out in the planning scheme or referred to in the planning scheme as a document guiding broader character.
   • Secondly, putting aside the merit of the statement, it is not appropriate to direct the response required for the site in a section that describes context to which later sections of the PDP need to respond.
4. Any update to the amended PDP should delete this paragraph or rephrase it in a way that corrects the underlined sections. It should only describe the context to which the development plan needs to respond, not the response itself.

Assessing the proposed amendments against the existing context and the planned future context of the area

1. The existing and planned future context of the area includes the land at 1A Main Drive directly south of the review site. As commented above I agree with Mr Blades that this land, and land to the east of the review site at the Linaker Centre, and further east, is unlikely to change in the near future due to their ownership patterns, existing built form and the heritage overlay applying to the Linaker Centre.
2. The current PDP identifies the La Trobe University land to the south-east of the site as one that requires careful visual interface management.[16] This PUZ2 land has no building height control for education uses, with the changes introduced to the PUZ schedule in 2018 establishing a height control for non-education buildings. The MCMP provides some strategic planning and public authority policy context that this existing sensitive interface is likely to change. However, the change that the MCMP indicates is sought, is to reinforce the three-storey podium form to Main Drive with ten-storey form well set back to the south of podiums facing Main Drive.
3. The changes already made to the PDP in precincts 1B-01 and 1B-02 facing Plenty Road were made in light of the Plenty Road corridor strategy and the associated DDO17 that applies to other land along Plenty Road. These are also relevant but I find they do not necessarily lead to the proposed building envelopes on the review site and to assume so would be contrary to the elements of the NECSP (and therefore DPO1). This is because the NECSP sets a different expectation for Plenty Road to the remainder of the PDP area.
4. Physically the Main Drive / Plenty Road corner of precinct 1B-01 is topographically slightly lower than the review site and sits across a 12 metre wide service road to the review site[17]. The approved building at the corner also shows that it is set back at least a further 10 metres from this service road to accommodate an existing drainage reserve. A potential building on the review site will therefore be somewhat physically separated from this landmark corner building by at least 20 metres. A building on the review site needs transition between this physically separate corner of Main Drive and Plenty Road in a way that also address its sensitive single-storey heritage form to the east and also acknowledging the existing three-storey context to the south.
5. In this context, and for reasons set out below, I find more persuasive rationale in Mr Blades' evidence than Mr Biles' evidence. This leads me to find that if a change is to occur to the PDP it should be to enable a building form on precinct 1B-16 that comprises a three-storey podium form with one to two recessed levels above. I find this because:

1. The elements of the NECSP, that I must have regard to in accordance with assessing a development plan under DPO1, reinforce that the more robust building form is to occur at the edge of Plenty Road, not as an avenue along Main Drive. 2. The existing physical context drives a need for predominantly three-storey building and this is also recognised in the MCMP with use of a deeply recessed three-storey podium to Main Drive. There are some taller, three-storey street walls in the broader PDP area but these are not in the immediate area of the review site. Even the taller three-storey street walls in Copernicus Crescent and at the intersection of Plenty Road and Main Drive, derived from changes in slope. I find none of the existing buildings read as four storeys to the street edge.

1. The topography of the site and surrounds slopes generally from north to south. This means a building, in its immediate context, will be more prominent on the review site than buildings on the La Trobe University land to the south, south-east.

1. Main Drive has a physical form and setting that is much more modest than the physical setting of Plenty Road, where policy and DDO17 provisions lead to taller building form. Main Drive is currently described in the PDP as 'a local road' with 'a carriageway width of 7.5 metres and caters for one traffic lane in each direction and has a 50km/h speed limit.'[18] There was nothing put to me that this reference is out of date or is sought to be changed. This description fits the physical context directly in front of the review site. 2. The shallow depth of the site means any building above a podium also needs to be shallow, thereby reducing any relief or recession that comes with a deeper upper level set back. As such, upper level form will be potentially dominant in its setting. On a site that is not a nominated landmark site, or can be contextually considered one, such prominence is not something that is warranted by the DPO1 provisions that direct a response to its character context. 3. I place no weight on speculation about what may or may not occur on the supermarket site to the north of precinct 1B-16. Building on this supermarket site is guided by the existing PDP that shows two-storey form on this land. Any proposal for taller form needs to be subject to a separate application to amend the current PDP, or a new development plan prepared. In any event, the supermarket site is larger and has different direct interfaces to the review site. 4. I do not see an express need to enable additional building height on the review site to design accommodation with good daylight given the adjacent supermarket carpark building, as suggested by Mr Biles. The site is shallow and relatively small with frontage to three roads. It has good opportunity for daylight despite the two storey supermarket car park interface, or even if the supermarket car park interface was taller.

1. I note that the proposed changes to the PDP also alter preferred uses for the review site and car parking requirements. These include:
   • Allowing a zero setback for residential as well as retail or commercial building. (amendment on Page 53 - section 4.7.1).
   • Commenting that there is opportunity for student accommodation at building 1B-16.
   • Provision of a peak parking rate of 0.11 spaces per student for student accommodation in section 5.2 - page 78.
2. These are not contested by the council and I likewise am not opposed to these changes as I find they are acceptable in context of the DPO1 provisions.

1. I find that the proposed amendments as set out by the applicant in the consolidated set of changes proposed in documents dated 20 August 2020 are not acceptable as I find they do not meet the requirements of the DPO1 with consideration to the elements of the NECSP and the character of the area, for reasons set out above.
2. I further find that that there is merit in better articulating what could be an acceptable building form outcome for this site, rather than relying on the existing PDP to consider a taller building consistent with Mr Blades evidence. I say this noting the findings of the Tribunal in Jocelyn Meadows Pty Ltd v Casey CC[19] that:

[61] In interpreting the expression "generally in accordance with", the principles identified by the Tribunal in Canet v Brimbank City Council [2003] VCAT 13 will apply, namely:

1. General accordance is a question of fact to be judged on the facts and circumstances of each case, and
2. The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".

1. I find an amendment to the PDP for precinct 1B-16 could be made acceptable if it were only to provide a building envelope that could accommodate a predominantly three-storey building with one to two recessed upper levels above, up to 16 metres high, and utilising a 2.0 setback to Main Drive. I find such an amended envelope could accord with the requirements and decision guidelines of the DPO1.
2. The role of the Tribunal is to review the matter before it. In this instance it is whether amendments to the PDP as sought by the applicant are acceptable. I find they are not. It is not for me to manage the council and the applicant through a possible alternative set of changes that require multiple changes on multiple pages and may lead to further consequential changes.
3. To assist the applicant and the council in preparing any possible further amendments that may be sought by the applicant to the PDP I set out below changes I find could form the basis of an amendment to the PDP that could meet the provisions of DPO1. These are:

1. Deletion or amendment of the last paragraph of proposed new page 13a, for reasons set out in paragraphs 43 to 47 above. 2. Amendment to the proposed changes highlighted on pages 44, 44a, 53 and 82 to refer to building in precinct 1B-16 as a predominantly three storey building envelope with opportunity for a recessed fourth or fifth storey, up to a maximum building height of 16 metres. The height should be a maximum, not a 'preferred' maximum building height. The maximum height is not mandatory but needs to be tested as being 'generally in accordance' with the plan in the assessment of a planning application.

1. Clarification that building above the three storey form should include a setback of at least 2.0 metres from the lower three storeys facing Main Drive. The recession of any level above three storeys should also retain a reference to 'generous setbacks to Linakers Cottage'

1. Deletion of the 'benchmark' image for 1B-16 on page 44 that shows 'indicative contemporary building typology for student accommodate for building 1B-16'. This figure shows various buildings well exceeding five (and seven) storeys and are not indicative of what I consider should occur on the review site. 2. Amendment to section 3.7 and associated figure 30 on page 30 of the PDP to delete reference to the 'La Trobe University agricultural reserve' as this is contrary to the updated information on the proposed new page 13a.
2. There may be other consequential changes that the applicant may also want to consider. These include notating that:
   • the current Municipal Strategic Statement and Plan Melbourne supersedes much of the policy context in the existing PDP.
   • The physical context, set out on pages 12 and 13, has been superseded by development that has occurred since 2009.

[1] 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.

[2] The orientation is more correctly 'east' as Plenty Road runs north-east / south-west and Main Drive heads south-east from Plenty Road. For ease of reference I refer to Plenty Road as to the west and Main Drive to the south of the review land.

[3] The document refers to metropolitan strategy at the time of Living Suburbs, 1995 and Transporting Melbourne 1996.

[4] Permit D/10/2020, granted in early 2020.

[5] Paragraph 2.1.20 of Mr Biles evidence

[6] Paragraph 2.3.4 of Mr Biles evidence

[7] Paragraphs 2.3.5 and 2.3.9 of Mr Biles evidence.

[8] Paragraphs 2.3.10 to 2.3.13 of Mr Biles evidence.

[10] Summarising paragraphs 40 - 42 of Mr Blades evidence.

[11] Paragraph 43 of Mr Blades evidence.

[12] Paragraph 45 of Mr Blades evidence.

[13] Paragraph 47 of Mr Blades evidence.

[14] And therefore, a document relevant to the considerations under section 60 of the Act.

[16] Page 30 of the adopted PDP - section 3.7 - Exposure and Interface.

[17] Distance measured from Nearmap. Contour maps available on VicPlan indicate the review site is at least one metre higher than the 1B-01 site.

[18] PDP Page 26 - section 3.1.2 Vehicular Access

[19] [2004] VCAT 2627