DATES OF HEARING: Wednesday 17, Thursday 18 and

It is ordered, pursuant to Section 149(1)(d) of the Planning and Environment Act 1987, that the Cranbourne East Development plan is amended to delete the requirement for plantation reserves on Linsell Boulevard.

It is ordered that a permit is grated for development, use and subdivision of the subject land being Lot KK (Part) and Lot A (Part) Narre Warren - Cranbourne Road Cranbourne, subject to the following conditions:

1. Before the use and development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans entitled 'The Hunt Club: Proposed Retirement Village' drawing numbers VCAT.01 and VCAT.03-VCAT.09 dated June 2003 but modified to show:

1.1 A 4.5 metre tree reserve adjacent to the southern boundary of the proposed Linsell Boulevard.

1.2 Provision of footpaths alongside principal roads within the village.

2. The use and development as shown on all of the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. Before the development of each stage starts a detailed development plan of that stage to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The development plans must show:

3.1 Fully detailed plans of all buildings and works to be undertaken including:

3.1.1 the external design, materials, colours, siting, building heights, floor areas and any other relevant information.

3.1.2 the location and details of uses including floor space of each use.

3.1.3 the location of proposed buildings and works in relation to existing and future buildings and works.

3.1.4 building entrances and internal and external pedestrian circulation routes to comply with Australian Standard Design Rules for Disabled Persons (AS 1428).

3.1.5 details of all loading bays, waste storage and collection areas, mechanical heating and cooling services, plant and equipment, in locations that are visually unobtrusive where applicable.

3.1.6 design details for the emergency access where applicable.

3.1.7 a roof plan showing any roof top plant and equipment.

3.1.8 location of letterboxes and hard stand areas for the collection of garbage bins for all units.

3.1.9 dimensions for all access roads and car parking spaces.

3.1.10 comprehensive waste management plan for the site, including collection and disposal methods for domestic garbage and recyclables.

3.2 Engineering plans showing details of the proposed drainage system, location of services and construction details of access ways.

4. Before the development starts a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must show:

4.1 a survey (including botanical names) of all existing vegetation to be retained or removed.

4.2 buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.

4.3 details of surface finishes of pathways and driveways.

4.4 a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.

4.5 landscaping and planting within all open areas of the site.

All species selected must be to the satisfaction of the responsible authority.

5. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants must be replaced.

6. Before any buildings and works start, engineering plans, specifications and computations for all roadworks and drainage works to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must not be approved until a functional layout plan and a landscape plan have been endorsed under this permit and the location of services have been determined to the satisfaction of the Responsible Authority. The engineering plans submitted must be consistent with the endorsed functional layout plan and landscape plan and must include:

6.1 full construction of streets and full underground drainage;

6.2 the provision of all services and conduits (underground);

6.3 traffic control measures as approved by the Responsible Authority;

6.4 the erection of street name plates to Council's standard design (if applicable);

6.5 the construction of concrete footpaths (1.5 metres wide) in locations acceptable to the Responsible Authority;

6.6 the construction of underground easement drains of sufficient capacity to serve all development on the land;

6.7 the planting of advanced street trees and erection of tree guards, vehicle exclusion fencing (bollards etc.) and lot boundary fencing abutting reserves;

6.8 appropriate mechanisms for protecting environmental assets during the construction phase of the subdivision in accordance with Council requirements;

6.9 internal drainage and method of disposal of stormwater from all roofed and sealed areas, including the use of an on-site detention system (if required).

7. Before the use of each starts, or by such later date as is approved by the Responsible Authority in writing, all works shown on the endorsed plans for that stage must be carried out and completed to the satisfaction of the Responsible Authority.

8. Before any buildings or works start a construction management plan must be submitted to and approved by the Responsible Authority. The management plan must provide details including:

8.1 hours during which construction activity will take place.

8.3 the location of where building materials are to be kept during construction.

9. Before any building and works start an emergency management plan must be submitted to and approved by the Responsible Authority. The plan must provide details of how the emergency access will be managed in case of an emergency, and other relevant emergency procedures.

10. For each stage of development, buildings must not be occupied until the buildings are connected to reticulated water supply, sewerage, drainage, underground electricity supply and telecommunications services according to the requirements of the relevant servicing authority and the satisfaction of the responsible authority.

11. Car parking spaces, at the rates of one garage per dwelling and 1 car space per five dwellings, must be provided on the land for the use, with garages set back a minimum of 5 metres from the frontage to enable a tandem visitor space. No less than 6 car parking spaces clearly marked for use by disabled persons must be provided.

12. Before the use of each stage start the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

12.2 properly formed to such levels that they can be used in accordance with the plans

12.5 line marked to indicate each car space and all access lanes

12.6 clearly marked to show the direction of traffic along access lanes and driveways,

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

13. Areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.

14. Access to the subject land must only be at the locations shown on the endorsed plans. The crossing and road pavement works are to be constructed to the satisfaction of the Responsible Authority.

15. The loading and unloading of goods from vehicles must only be carried out on the land within the designated loading bays and must not disrupt the circulation and parking of vehicles on the land.

16. The operator of the Retirement Village on the land must provide a bus service, if considered necessary by the Operator, for the residents of the development to the satisfaction of the Responsible Authority.

17. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia.

18. No external sound amplification equipment or loudspeakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purposes, without the approval of the Responsible Authority.

19. All pipes, fixtures, fittings and vents servicing any building on the site (except down pipes) must be concealed in service ducts or hidden from view or otherwise to the satisfaction of the Responsible Authority.

20. No plant, equipment, services or architectural features other than those shown in the endorsed plan are permitted above the roof level of the building without the prior written consent of the Responsible Authority.

21. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

22. Any litter generated by building activities on the site shall be collected and stored in an appropriate enclosure which complies with Council's Code of Practice for building/development sites. The enclosures shall be regularly emptied and maintained such that no litter overspills onto adjoining land. Prior to occupation and/or use of the building, all litter shall be completely removed from the site.

23. The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

23.1 transport of materials, goods or commodities to or from the land;

23.2 appearance of any building, works or materials;

23.3 emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

24. Upon completion of all buildings and works authorised by this permit the permit holder must notify the Responsible Authority of the satisfactory completion of the development and compliance with all relevant conditions.

25. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with that authority's requirements and relevant legislation at the time.

26. All existing and proposed easements and sites for existing or required utility services on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

27. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with section 8 of that Act.

28. The layout of the subdivision as shown on the endorsed plan must not be altered or modified (whether or not in order to comply with any statute, statutory rule or local Law, or for any other reason) without the prior written consent of the Responsible Authority.

29. Before any works associated with the subdivision start, detailed engineering construction plans must be prepared to the satisfaction of the Responsible Authority. All works constructed or carried out must be in accordance with those plans.

30. Streets must be named to the satisfaction of the Responsible Authority.

31. There must not be any vehicular access across tree reserves, without the consent of the Responsible Authority.

32. The developer must construct and paint all fences along the common boundary between the tree reserve and the lots to the requirements and satisfaction of the Responsible Authority.

33. A copy of each Plan of Subdivision must be provided to the Responsible Authority in digital Autocad (.DXF) format co-ordinated to AMG. Layers must be provided as per Feature Codes of Australian Standard AS 2482-1989.

34. The applicant must send the following documents to the Responsible Authority within four (4) weeks of the registration of the plans at the Land Titles Office:

* a Certificate of Title for all land vested in the Responsible Authority on the plan of subdivision; and

* a clear A3-size photocopy of the Title Office approved Plan of Subdivision.

35. Prior to the issue of a statement of compliance the owner must pay to the Responsible Authority the development contribution for each lot on the subdivision in accordance with the development contribution plan governing the site, unless such payment has already been made.

36. A cash payment equivalent to a minimum of 7.5 percent of the site value of all the land in the subdivision must be made to the Responsible Authority in lieu of the provision of land, unless such payment has already been made.

37. Before the development starts the drainage proposal with respect to the subject land must be approved by Melbourne Water.

38. The owner of the subject land must enter into an agreement with South East Water Limited for the provision of water supply and fulfil all requirements to its satisfaction.

39. The owner of the subject land must enter into an agreement with South East Water Limited for the provision of sewerage and fulfil all requirements to its satisfaction.

40. Prior to certification, the Plan of Subdivision must be referred to South East Water Limited, in accordance with Section 8 of the Subdivision Act 1988.

41. The owner must enter into an agreement with TXU Electricity Ltd for supply of electricity to each lot on the endorsed plan.

42. The owner must enter into an agreement with TX Electricity Ltd for the rearrangement of the existing electricity supply system.

43. The owner must enter into an agreement with TXU Electricity Ltd for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by TXU Electricity Ltd.

44. The owner must provide easements satisfactory to TXU Electricity Ltd for the purpose of "Power Line" in the favour of "Electricity Corporation" pursuant to Section 44 and Schedule 2 of the Electricity Industry Act 1993, where easements have not been otherwise provided, for all existing TXU Electricity Ltd electric power lines and for any new power lines required to service the lots on the endorsed plan and/or abutting land.

45. The owner must obtain for the use of TXU Electricity Ltd any other easement required to service the lots.

46. The owner must adjust the position of any existing TXU Electricity Ltd easement to accord with the position of the electricity line(s) as determined by survey.

47. The owner must set aside on the plan of subdivision Reserves for the use of TXU Electricity Ltd for electric substations.

48. The owner must provide survey plans for any electric substations required by TXU Electricity Ltd and for associated power lines and cables and execute leases for a period of 30 years, at a nominal rental with a right to extend the lease for a further 30 years. TXU Electricity Ltd requires that such leases are to be noted on the title by way of a caveat or a notification under Section 88(2) of the Transfer of Land Act prior to the registration of the plan of subdivision.

49. The owner must provide TXU Electricity Ltd a copy of the plan of subdivision submitted for certification that shows any amendments that have been required.

50. Any wood heaters must satisfy AS/NZS 4013, to the satisfaction of the Responsible Authority.

51. A hydrant connected to a reticulated water supply must be provided for each allotment within 120 metres of the furthest edge of the building envelope.

52. Three copies of water reticulation drawings must be provided to CFA for approval.

53. Fire hydrants must be clearly identified in accordance with the Fire Services Guidelines - Identification of Street Hydrants for Firefighting Purposes.

54. Emergency vehicle access must be provided to each of the allotments meeting the design requirements of the City of Casey.

55. There must be no obstructions within one metre of the formed width of reads, and there must be four metres height clearance above all roads.

56. The amount and location of parking facilities should not impede access of emergency vehicles (off-street parking is therefore encouraged where possible).

57. The emergency access as shown on the plan must be of all weather construction, designed constructed and maintained for a load limit of at least 15 tonnes and must provide a minimum trafficable width of 4 metres, and be clear of encroachments 4 metres vertically. Any locks to gates etc must be a L003 fire service key.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For the Responsible Authority: Mr J Rantino, Solicitor of Maddocks Lawyers.

* Mr H Dalheim, Manager Strategic Development for the Responsible Authority

For the Applicant for Review/ Mr I Pitt SC, of Best Hooper Solicitors. Mr Pitt called

Permit Applicant: the following expert witnesses:

a) An application under Section 149(1)(d) of the Planning and Environment Act 1987 ("the Act") brought by the Applicant for review of the failure of the Casey City Council ("the Responsible Authority") to consider a request to amend a Development Plan within a reasonable time.

b) An application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of the failure of the Casey City Council ("the Responsible Authority") to grant a permit within the prescribed time.

2 Permit Application No. P854/02, which is the subject of Application for Review No. P948/2003, was advertised at the direction of the Tribunal by signs on the subject land, notification to adjoining and opposite properties, notification to Referral Authorities, and a schedule in a local newspaper.

3 The Permit Applicant, by letter dated 4 July 2003 to the Tribunal, advised:

"Pursuant to the Tribunal's Practice Note requirement I submit amended plans which it is proposed are to be substituted for the plans previously lodged with the permit application in the above matter. It is proposed that these amended plans will form the basis for the application now before the Tribunal.

The plans now submitted vary the proposed development from that previously lodged in the following ways:

* An area of development in the north east corner of the site has been deleted from the plan. The area affected is presently within an Urban Floodway Zone under the Casey Planning Scheme. The exclusion of the development in the north east corner reduces the number of units by 13. The application is to be amended to provide for the development of 212.

* The layout of the proposed units throughout the site has been varied to provide a less regimented form for the development.

* The provision of separate fenced private rear yards for each unit has been varied to the extent that each unit will have a smaller enclosed service yard and a greater access to communal open space areas.

* Floor plan layout detail for the proposed community building.

* Roof plan and building elevations for the community building.

* Floor plan layout detail for the individual living units.

It is requested that the amended plans replace the plans previously submitted for approval.

It is also proposed that the application for permit be amended to the extent that it seeks approval for the development and use of the land for a retirement village containing 212 independent living units and associated community facilities generally in accordance with the submitted plans and for its subdivision.

I also attached a statement of service declaration confirming the parties notified and identifying the documents served."

4 There being no objection I amended the permit application accordingly pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

"Use and development of the site for the purpose of a retirement village and subsequent subdivision into 224 independent living units and associated community facilities."

6 The permit application was not advertised by the Responsible Authority but was advertised at the direction of the Tribunal. Because of the nature of advertising the Referral Authorities did not have the opportunity to provide the Responsible Authority with their views on the proposal and any required conditions. This has led to Directions on two occasions, and supplementary written submissions concerning conditions have been made for both the Responsible Authority and the Applicant for Review/Permit Applicant.

7 Mr McCaffrey, the Consultant Planner called as an expert witness for the Applicant for Review/Permit Applicant, described the proposal as follows:

The proposal is for the development of a retirement village which will include:

* 212 Independent Living Units. These units are all single storey and will comprise a mix of two and three bedroom units.

The plan prepared for the development of the whole of the subject site proposes the creation of 225 units. Given that the north east corner of the site is within an Urban Floodway zone the plan for the development has been amended to exclude 13 units which are located on that part of the site. The excision of these units is not, in my opinion, detrimental to the development layout proposed. 1 understand that subsequent to the rezoning of the land located within the Urban Floodway zone the applicant intends to seek approval for the units which have been excluded from this application.

* Each unit has a lockable garage and the facility for a car park space in front of its garage.

* A communal facilities core area. This area is located within the central area of the development. It is proposed to accommodate facilities including:

* Communal open space areas linked to the core area by a communal path.

* A storage area for leisure vehicles and a hobby garden with hot house and workshop.

* The community building is a large single storey building which will accommodate a range of facilities and services including:

8 Mr Rantino, in his written submission for the Responsible Authority, described the subject land and surrounds as follows:

The subject land is generally flat, covered in grass and comprises a further stage in the developing Hunt Club Estate. The southern boundary of the Bindalee Estate residential development forms the northern boundary.

The subject land is within the urban growth corridor in Cranbourne East. The proposed retirement village will be located within the larger Hunt Club residential estate. To the west is the proposed Cranbourne East Activity Centre on the corner of Narre Warren-Cranbourne Road and the proposed Linsell Boulevard. To the south are the already developed stages of the Hunt Club Estate. To the east is a proposed wetland open space area. To the north is a residential development.

The original application plans showed the subject land as including a portion of land in the north east corner. The north east corner is in the Urban Floodway Zone and development of the type proposed is prohibited in that zone. The substituted plans sought to be relied upon by the applicant have removed this portion of the land from the application. That portion of land is also outside the Urban Growth Boundary.

There will be a lot said in these applications about Linsell Boulevard. Linsell Boulevard does not actually exist other than by reference in a number of relevant planning documents (including the relevant Development Plan). It is proposed as an east-west arterial road which runs through Cranbourne and beyond. The proposed Linsell Boulevard will be part of the arterial road network.

9 The subject land is covered by the Casey Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to use the land for a retirement village pursuant to Clause 32.01-1. A permit is required for buildings and works associated with a Section 2 use, pursuant to Clause 32.01-6.

10 The subject land is affected by Schedule 1, Residential Areas, to Clause 43.04, Development Plan Overlay. Clause 43.04-1 provides that a permit must not be granted to use or subdivide land, construct a building or construct or carry out works until the Development Plan has been prepared to the satisfaction of the Responsible Authority. The Clause also provides that a permit must generally be in accordance with the Development Plan and must include any conditions or requirements specified in a Schedule to the Overlay.

11 Paragraph 2.0 of Schedule 1 provides that a Development Plan should show:

- The location of existing and proposed open space including open space linkages; and

- The location of any existing or proposed community facilities including school sites.

12 Clause 43.04-3 sets out what a Development Plan may consist of and must describe, and provides that the Development Plan may be amended to the satisfaction of the Responsible Authority.

13 Clause 45.06, Development Contributions Plan Overlay, provides at Clause 45.06-1 that a permit must not be granted to subdivide land, construct a building or construct or carry out works until a Development Contributions Plan has been incorporated into the Scheme. The Clause also provides that a permit must be consistent with the relevant Development Contributions Plan and include any conditions required to give effect to any contributions or levies set out in the relevant Schedule to the Overlay.

14 The subject land is affected by Schedule 4, Local Structure Plan 3 (Cranbourne East) Development Contributions Plan to Clause 45.06, Development Contributions Plan Overlay.

Application No. P1644/2003 - Section 149(1)(d)

15 The Applicant seeks a review of a requirement pursuant to the Cranbourne East Development Plan, which was adopted by the Responsible Authority on 4 February 2003, that a plantation reserve 12 metres wide be provided on each side of the proposed Linsell Boulevard. The Boulevard abuts the northern boundary of the subject land. The Development Plan provides for a road reserve width of 34 metres, with service roads. The proposed retirement village would not be accessed from Linsell Boulevard, and the Development Plan therefore provides for a 12 metre wide plantation reserve on either side of the Boulevard. The subject land is identified in the Cranbourne East Development Plan as a site for a retirement village.

16 Clause 43.04, Development Plan Overlay, includes under Purpose:

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land."

17 Clause 43.04-1 provides that a permit must not be granted until a Development Plan has been prepared to the satisfaction of the Responsible Authority, an a permit must be generally in accordance with the Development Plan.

18 Clause 43.04-3 provides that the Development Plan may be amended to the satisfaction of the Responsible Authority. This application follows the failure of the Responsible Authority to amend the Development Plan to delete the plantation reserves.

19 Mr Rantino, in his written submission for the Responsible Authority, set out the relevant Grounds as follows:

* the requirement of the development plan for the provision of a 12 metre wide buffer plantation on each side of Linsell Boulevard unreasonably and unfairly affects the development of the proposed retirement village.

* the extent of buffer plantation required is excessive and is not necessary for the proper functioning of this road.

* the requirement imposed on the subject land is unfair and inequitable.

At its meeting of 15 July 2003 Council resolved not to support the request to amend the Cranbourne East Development Plan for the following reasons:

* A plantation reserve has been a long-standing requirement of Council's approved Development Plans in the area.

* If no plantation reserve is provided then there would not be sufficient room for provision of a shared footpath or tree planting to occur. There would only be provision for a narrow grass strip of land abutting the future arterial road pavement which would be an unsatisfactory outcome.

* Council's community consultation programs such as occurred for the Casey C21 Strategy found that the local community strongly values avenue tree planting along arterial roads as well as along local streets. The community also strongly values the provision of shared paths along the road network so they can move safely around their neighbourhood.

* The plantation reserve requirement is directly supported by the following adopted policies of Council:

* Removal of the plantation reserve requirement is considered to have no planning justification.

20 There have been two earlier plans. The Local Structure Plan 3 was adopted by the former City of Cranbourne in October 1994.

21 The Hunt Club Development Plan was prepared by the City of Casey in January 2000, and amended in July 2001. This plan, which was less detailed in the Cranbourne East Development Plan, superseded the Local Structure Plan 3. The subject land was partly within the Hunt Club Development Plan and partly outside.

22 Mr McCaffrey set out some of the history as follows:

Linsell Boulevard which is shown as a new arterial road in the Cranbourne East Development Plan is a replacement road for what was previously proposed as an extension of Camms Road. Camms Road is located on the west side of Narre Warren-Cranbourne Road and its eastern termination is presently at Narre Warren-Cranbourne Road opposite the north west corner of the original Hunt Club property.

As part of a proposed bypass road system for the Cranbourne township it was proposed that a new road, known as the Camms Road Extension, was to be established. The Camms Road Extension proposed a link between Narre Warren-Cranbourne Road and Berwick-Cranbourne Road.

The alignment of this proposed road was established in Local Structure Plan 3 which was adopted by the City of Cranbourne in October 1994. It commenced at Narre warren-Cranbourne Road to the north of the Hunt Club property boundary and deviated south into this property. From there it ran parallel with the northern boundary of the Hunt Club and separated from it by the width of a drainage reserve. It then ran parallel to this boundary until it was beyond the eastern boundary of that property. The alignment of Camms Road Extension in this loc ion was approx. 160m south of the alignment now proposed for Linsell Boulevard.

Although the plan is not particularly specific there does not appear to have been any provision made for tree reserves along the length of this road nor of any other roads shown in the plan. It would appear, considering the surrounding road pattern proposed in this area that it was intended that lots would abut onto this road.

It is my understanding that the width of this road was to be 34m and that it was to be funded by development contributions.

In January 2000 the Casey City Council adopted the Hunt Club Development Plan. It is my understanding that this plan superseded part of the Local Structure Plan 3 and was approved as the Development Plan pursuant to Clause 43.04. It became the development plan with which development in the Hunt Club estate was required to comply. The Hunt Club Development Plan was amended in July 2001.

The Hunt Club Development Plan shows the alignment of Camms Road located immediately adjacent to and within the Hunt Club estate. This proposed road reservation is 1 00m to the south of the alignment now proposed for Linsell Boulevard.

The Responsible Authority seeks that a plantation reserve, 12m wide, be provided on both sides of Linsell Boulevard. In my opinion this requirement is inappropriate and unreasonable. I believe this to be the case because the applicant's land now has abuttal to only one side of the proposed Linsell Road reservation. The Responsible Authority is seeking to require the applicant to provide a plantation to buffer and to restrict access to Linsell Boulevard from the established residential estate which now abuts on the northern boundary.

The Subject Land has effectively been created as a consequence of development approved in pursuance of the formerly approved Development Plans applying to the Estate of which the Subject Land forms part, including the siting of infrastructure required by the Council to follow the alignment of the planned Camms Road extension as previously provided for in the approved Development Plan and as remains as an item under the approved Development Contributions Plan.

A request for further information was made pursuant to section 54 of the Act on 13 January 2003, which made no reference to additional land to be provided for a realigned Linsell Boulevard.

The response to that request was given on 28 January 2003.

The Council adopted the amended Development Plan now known as the Cranbourne East Development Plan on 4 February 2003.

It is the Applicant's contention that what is sought by the Council is a road reserve of 58 metres comprising the northernmost portion of the Subject Land for which the Development Contributions Plan provides for a 34 metre wide reserve on a different alignment.

It is submitted that if the additional 24 metres of reserve were required for the purpose of the arterial road this requirement is not one which has any adequate nexus or relationship with the development of the Subject Land as a retirement village, which is a use acknowledged for the Subject Land in the now approved Development Plan and could only be seen as a general road network provision and that the supply of land for this purpose is not such as could reasonably be imposed upon the Applicant.

It is submitted that the Development Plan Overlay and Development Contributions Plan Overlay as they apply in this area and have applied throughout the development of the Estate creating the Subject Land form a package.

It is further submitted that the provision of the two 12 metre wide "tree" reserves in addition to the 34 metre wide balance of the road reserve are also intended by Council to be an integral package and it is an artificial distinction to endeavour to draw a difference between the land to be occupied by the carriageways, medians and safety strips from the additional land sought effectively for beautification of the highway with trees principally for highway purposes.

It is submitted that it is unreasonable to amend the Development Plan in an endeavour to cast an obligation on the owner of the Subject Land for the provision of an additional 24 metres width of land across the full northern boundary of the land for a highway purpose outside the provisions of the Development Contributions Plan, particularly when the Estate has been developed pursuant to then existing approved Development Plans and the existing Development Contributions Plan, which contemplate the land to be set aside for the purpose of arterial roads as having a width of 34 metres.

To express it another way the setting aside of an area 58 metres wide across the full width of the site does not have an adequate nexus to justify requiring the owner of the Subject Land to contribute that land for an arterial road.

It is further submitted on the evidence that the proposed tree reserves are excessive and unnecessary to achieve an appropriate landscape setting for a new arterial road and that inadequate regard has been had to the amenity affects of the proposed density and size of plantings having regard to the orientation of the Subject Land.

It is to be noted, as detailed in the evidence of Mr McCaffrey, that the Development Plans pursuant to which the Estate is being developed are not old and that the Hunt Club Development Plan was first adopted in January 2000.

It is submitted. that it is quite unreasonable, where major developments have proceeded on the basis of an adopted Development Plan and Development Contributions Plan, for the Council for then to change its mind, adopt an amended Development Plan without making any consequential change to the Development Contributions Plan and effectively seek to compulsorily acquire from the Applicant a substantial area of land while seeking to avoid paying for it.

24 Mr Rantino made reference to the Final Report - New Format Planning Schemes, April 1998, and the Report of the Independent Panel which considered Amendment C12 to the Whittlesea Planning Scheme. Mr Rantino submitted:

It is the very purpose of the DPO that a Development Plan provide for those matters identified in the panel reports cited above that relate to the use and development of land beyond the boundaries of a particular parcel of land. The urban design requirements of arterial roads is one such matter that requires a strategic plan to be in place to ensure a uniform outcome across the development plan area.

The effect of the request to amend the Development Plan in this case would create an eyesore. When fully developed, Linsell Boulevard will be an attractive tree lined arterial road with canopy tree planting except (if the applicant has its way) for the portion of the road abutting the retirement village. This is inconsistent with the purpose of the DPO to provide a development plan showing the form and conditions of the future use and development of land in the development plan area.

Further, clause 43.04-3 requires the development plan to describe 'the proposed use and development of each part of the land' and Schedule 1 requires the development plan 'show the existing and proposed road network'. The reason for these requirements is to show how the use and development of one portion of land affects and integrates with the use and development of other land in the development plan area. The applicant's request to amend the Development Plan does not show how the amendment integrates with the existing and future use and development of land. The applicant certainly does not show how the amendment will result in net community benefit.

In Burnside Properties Pty Ltd v Melton Shire Council [2000] VCAT 2326 (30 November 2000) the Tribunal declared Melton Shire Council's decision to approve a development plan invalid because the Council did not have regard to all of the relevant considerations listed in clause 43.04-3 of the DPO. (See paragraph 348).

In this case, the Tribunal is being asked to make a decision to amend a Development Plan in the absence of any information about how the change will affect the development of surrounding land within the development plan area.

The proposed amendment to the Development Plan is not supported by the Planning Policy Framework because:

* It does not facilitate the orderly development of urban areas (clause 14.01)

* It does not reflect the aspirations of the community (clause 19.03)

* It does not enhance liveability, diversity, amenity and safety of the public realm (clause 19.03)

* It does not promote attractiveness of towns and cities within a broader strategic context (clause 19.03)

* It does not achieve an urban design outcome that contributes positively to local urban character and enhance the public realm (clause 19.03-2)

* It does not enhance the public realm (clause 19.03-2)

* It does not enhance pedestrian spaces (clause 19.03-2)

* It does not recognise the integrating role of landscape architecture (clause 19.03-2)

* It does not have regard to the needs of existing and future communities (clause 21.09)

* It does not contribute to building community pride by providing an attractive and functional physical environment that local communities can call their own (clause 21.09-2)

* It does not result in net benefit to the community (clause 21.09-2 and clause 22.05-3)

* It does not contribute to building a positive image of Casey as a desirable place to five in order to instil community pride (clause 21.12.2)

* It does not help to overcome negative perceptions of the municipality (clause 21.12-2)

* It does not create a high quality living environment (clause 22.05-2)

* It does not contribute to a built environment that is functional, safe, aesthetically pleasing and that the community can identify with (clause 22.15-2)

Mr Dalheim's evidence provides the strategic context for the planning policy framework. Council has commissioned extensive studies investigating the planning issues that inform the planning scheme and the Development Plan and should inform any future amendments to the planning scheme and the Development Plan.

25 Mr Rantino called Mr H Dalheim, Manager Strategic Development for the Responsible Authority, as a witness. It was the evidence of Mr Dalheim that:

A Strategic Response: Cranbourne East Development Plan

A Development Plan Local Structure Plan 3: Cranbourne East (LSP3) was initially approved for the Cranbourne East area on 14th September 1995. That plan bears little resemblance to the current Development Plan adopted in February 2003. The significance of the difference in the plans cannot be underplayed. That is, the current plan responds directly, as far as practical, to the issues identified in recent research, as described above.

The key issues in question regarding this appeal that respond to the recent research, particular the goals from C21 identified earlier, are:

* Boulevards: To deliver a city of trees Council has consistently been facilitating the delivery of tree reserves on its main roads. In addition Council now has an allocation in it budget to facilitate the planting of trees along its main roads. An example of a plantation reserve treatment is given below:

* Policy Position: All recent development plans in Casey provide direction regarding the delivery of treed boulevards. This policy position is linked to a document entitled "Casey Arterial Road Tree Strategy", which has recently been on public exhibition as a draft document.

* Active frontages: The preferred position for the development of the edges of Casey's main roads, it to create active frontages. That is where residential homes are a visible integral feature of the main road streetscape. To achieve this it is proposed that service roads be used. This allows one row of trees in the outer separator and one row along the nature strip. Where this cannot be achieved, eg near intersections a 12 metre tree reserve is proposed to deliver the same outcome.

The Cranbourne area appears to have a history of marginal planning decisions which in part contribute to the socio-economic outcomes we have today. The Cranbourne East Development Plan is based on a significant level of strategic research and seeks to deliver improved outcomes for the whole community. With reference to this appeal the Development Plan seeks to achieve active main road frontages that are developed as boulevards. Therefore it is submitted, in conclusion, that the proposed development be required to either provide an active frontage which allows for tree planting in the public domain or provide for a 12 m tree reserve.

26 The proposed retirement village will not present an "active frontage", in that dwellings will not have access to Linsell Boulevard. This should not prevent the retirement village presenting an attractive abuttal to Linsell Boulevard, as distinct from the paling fence "gun barrel" abuttals that one sees around Melbourne. There is the opportunity to make the abuttal attractive with sensitive fencing design and landscaping.

27 The proposal for planting in the 12 metre wide plantation reserve, being two rows of Eucalyptus teretecornis (Forest Red Gum) spaced at 8 metres between trees and 5 metres between rows, was described by Mr Pitt as a "hedge". This would, in the words of Mr Dance, form a "continuous canopy". It would itself be a visual barrier between Linsell Boulevard and the retirement village.

28 It was the evidence of Mr Turnbull, a Consultant Traffic Engineer who was called as an expert witness for the Applicant, that a widening of 4.5 metres on the south side of the proposed Linsell Boulevard for a tree reserve would be adequate for a landscaping strip, and I consider that this provision would be appropriate.

29 One of the Grounds of the Applicant was that the plantation reserve would unreasonably and unfairly affect the development of the retirement village. It could not be argued that it would not affect the development. The evidence of Mr McCaffrey was that the number of units would be reduced from 212 to 192. Mr Rantino argued that this is not a relevant consideration. I consider that this reduction in the development of the retirement village would not be matched by an increase in public benefit.

30 The second Ground was that the extent of the plantation reserve is excessive, and not necessary for the proper function of the road. I consider, having regard to the fact that the retirement village can provide an attractive interface to Linsell Boulevard, that the proposed width of 12 metres is excessive and would not assist the proper function of the road.

31 The third Ground was that the request is excessive and unfair. I consider that the submission of Mr Pitt, quoted at paragraph 23 above, is relevant. The permit application was lodged on 16 December 2002 and the Development Plan incorporating this requirement was adopted on 4 February 2003. The application took account of Hunt Club Development Plan, which itself was fairly recent, having been amended in July 2001. I do not consider that the requirement for two 12 metre wide plantation reserves, particularly the northern 12 metre wide plantation reserve, has an adequate nexus to the retirement village, and I accept the submission of Mr Pitt in this respect.

32 Clause 22.05 sets out the Local Residential Development Policy. Clause 22.05-3 sets out Policy, including:

* Residential development be in accordance with any approved Development Plan under an approved Development Plan Overlay.

* Departures from approved Development Plans will be supported in exceptional circumstances and only if it can be demonstrated that the departure will result in a net community benefit.

* New development contributes fairly to the infrastructure needs of the area.

33 I consider that this is a case where a departure for the Development Plan requirement would be appropriate. I also consider that the proposed retirement village would contribute fairly to the infrastructure needs of the area by the provision of the reserve for Linsell Boulevard, and a 4.5 metre wide tree reserve on the south side of Linsell Boulevard.

34 I consider it appropriate therefore to amend the Development Plan accordingly, pursuant to Clause 43.04-3.

Application No. P948/2003 - Section 69 Failure

35 The proposal is for the use and development of the subject land for a retirement village comprising 212 independent living units, of two and three bedrooms, and associated community facilities, and subdivision.

36 Mr Rantino set out the position of the Responsible Authority as follows:

At its meeting of 8 July 2003 Council resolved not to support the planning permit application on the following grounds:

* The proposal is inconsistent with the following clauses of the Casey Planning Scheme:

* The proposal is inconsistent with Melbourne 2030 - Metro Strategy.

* The proposal is inconsistent with Casey's Municipal Strategic Statement.

* The proposal in part is prohibited in the Urban Floodway Zone.

* The proposal in part is outside the Urban Growth Boundary.

* The proposal is inconsistent with the adopted Development Plan for the area.

* The proposal fails to represent the proper and orderly planning of the area.

On 9 July 2003 Council received amended plans together with a request to substitute these for the original application plans. Council has no objection to the substitution.

Accordingly, the portion of the land within the Urban Floodway Zone and outside the Urban Growth Boundary has been removed from the permit application. The Council's grounds of review in relation to this matter no longer need to be relied upon.

37 Mr Rantino said it was difficult for the Responsible Authority to assess the proposal as it was in a conceptual form, and the final design is subject to the requirements of the operator. Mr Rantino submitted:

The responsible authority does not contest that the use is appropriate in the location. Use of the land for the purpose of a retirement village is supported by the residential zoning of the land, the planning policy framework and the Cranbourne East Development Plan.

The responsible authority contests certain aspects of the development as proposed by the substituted plans.

38 Mr Rantino submitted that the proposal is not in accordance with the Cranbourne East Development Plan. This issue has been addressed above. Mr Rantino referred to Amendment C35 to the Casey Planning Scheme, which was requested by Melbourne Water, and proposed to include a strip of land on the northern boundary of the subject land in the Special Building Overlay (SBO). An open drain runs parallel with the northern boundary of the subject land, and Mr Rantino suggested that this was the reason for the SBO proposal. This issue can be dealt with by condition.

39 Mr Rantino criticised the proposal with respect to Clause 55, namely that the proposed units do not address the street (Linsell Boulevard), visitor parking is not shown on the plans and many of the proposed units would have south facing private open space.

40 Mr Pitt submitted that the use of the subject land for a retirement village is acknowledged in the Cranbourne East Development Plan, and is consistent with relevant planning policies and does not include land within the Urban Floodway Zone.

41 Mr Meldrum, the Architect for the proposal, gave detailed evidence on the design of the proposal, and I consider that what is proposed is entirely appropriate for the subject land.

42 The evidence of Mr Turnbull was that the proposed provision of car parking was appropriate for residents, visitors and staff vehicles, and that the access arrangements are satisfactory, and would allow garbage vehicles to safely and easily circulate.

43 I consider that the proposal is appropriate for the subject land, and I consider that weight should be placed on the fact that it is provided for in the Cranbourne East Development Plan. The proposal is supported by policy and is an appropriate zone. I consider that the design of the proposal will provide a high level of living amenity for future residents and I accept that traffic and parking issues have been appropriately addressed. The proposal also provides excellent landscaping opportunities.

44 Mr Rantino, for the Responsible Authority, provided Draft Permit Conditions and with revised Draft Permit Conditions that might be considered in the event that a permit was to be granted, and Mr Pitt, for the Applicant for Review/Permit Applicant, provided comments. I have had regard to what was provided for the Responsible Authority and the Applicant for Review/Permit Applicant in deciding conditions. As far as Melbourne Water and Environment Protection Authority conditions are concerned I accept the submissions of Mr Pitt.

45 For the above reasons these applications are allowed. It is appropriate that the Cranbourne East Development Plan be amended as requested and that a permit subject to conditions be granted. I will so order.