1 In Application P2962/2004 made under section 149 of the Planning and Environment Act 1987 in respect of the failure by the responsible authority to approve engineering plans under a planning permit, the decision of the Tribunal is that the plans should not be approved.

2 In Application P2963/2004 made under section 40 of the Subdivision Act 1988 in respect of the failure by the responsible authority to approve engineering plans in relation to a plan of subdivision, the decision of the Tribunal is that the plans should not be approved.

Ms Tanya Cincotta, Solicitor, of Best Hooper. She called as a witness:

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Antonio Davoli, Project Manager, Dennis Price & Miller Pty Ltd

1 The principle issue in these two applications is the alignment of Linsell Boulevard, Cranbourne. The land is within the urban growth corridor in Cranbourne East and the applicant in each case, Dennis Family Corporation, is a major land developer in the area.

2 Application P2962/2004 was made pursuant to section 149A of the Planning and Environment Act 1987. It was agreed by the parties at the hearing that the application should have been made pursuant to section 149(1)(a) of the Act and the application for review was amended accordingly. The application is couched in the following terms:

This is a request for a review by VCAT of a failure by the Casey City Council to approve engineering construction plans submitted in relation to requirements contained in Planning Permit P854/02. Planning Permit P854/02 approves the subdivision and development of a retirement village at the Hunt Club Estate. This permit was issued on the direction of Victorian Civil and Administrative Tribunal Act in Decision P1644/2003.

The City of Casey has advised that it will not approve the plans until the alignment of Linsell Boulevard, including the provision of tree reserves, has been finally resolved.

3 Application P2963/2004 is made pursuant to Section 40 of the Subdivision Act 1988 and is described in the application as follows:

This is a request for a review by the VCAT of a failure by the Casey City Council to approve engineering construction plans submitted in relation to requirements in plan of subdivision PS532344Y. PS532344Y was certified on 27 September 2004.

The City of Casey has advised that it will not approve the plans until the alignment of Linsell Boulevard, including the provision of tree reserves, has been finally resolved. PS532344Y, certified by Casey City Council, identifies the alignment of Linsell Boulevard on which the applicant seeks to construct the road.

4 The engineering plans that application P2962/2004 relates to are for a main drain being part of the Melbourne Water Ti Tree Creek Draining Scheme, Stage 41, along the northern boundary of the approved subdivision and retirement village permitted by planning permit P854/02.

5 The engineering plans which are the subject of application P2963/2004 are for the construction of a two lane carriageway along Linsell Boulevard between Rochester Parade and Broad Oak Drive.

6 Evidence was given by Mr Antonio Davoli on behalf of the applicant that both sets of engineering construction plans meet the relevant design standards and specifications of the City of Casey, Vic Roads and Melbourne Water. This was not contested by the Council and we accept that there are no civil engineering reasons why the said construction plans should not be approved.

7 The main reason why the plans have not been approved is that the plans for road construction of Linsell Boulevard[1] are not in accordance with Council's strategic planning for the area. This envisages Linsell Boulevard as a four lane road flanked by 12 metre wide tree reserves on either side. The plans submitted are for the length of road adjacent to the proposed Hunt Club Retirement Village. They show a 4.5m wide tree reserve on the southern alignment abutting the retirement village and no tree reserve on the northern alignment abutting the rear boundary of dwellings in the Brindalee Estate.

8 It was the applicant's contention that approval of the engineering plans is a technical matter and that endorsement/approval is required pursuant to the conditions of planning permit P854/02. It contends that Council's refusal to approve the engineering plans, both under the planning permit and the Subdivision Act, is for an ulterior purpose, namely the Council's dissatisfaction with the Tribunal's decision in Dennis Family Corporation v Casey City Council [2003] VCAT 1891, which granted planning permit P854/02. The refusal has been made on planning grounds not engineering grounds.

9 It was Council's submission that the Tribunal should refuse to require the approval of the engineering plans at this time on the basis that:

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the plans do not show what the planning permit requires them to show;

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the plans are unsatisfactory in terms of how they align with Linsell Boulevard to the east of the current extent as shown in the proposed plan. Specifically, the anticipated alignment to the east is inconsistent with the approved Cranbourne East Development Plan;

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the approval of the engineering plans in advance of the panel's report on amendment C73 to the Casey Planning Scheme is unnecessary, premature and contrary to principles of orderly planning.

10 In order to appreciate these arguments it is necessary to set out in some detail the background to this matter. We have then looked at what the preferred planning outcome would be and considered whether it is open to the Tribunal to make a decision that would achieve this outcome.

11 The locality is within the urban growth corridor in Cranbourne East. The land to the south of the reservation for Linsell Boulevard is being developed for a variety of urban purposes including dwellings, retirement village and eventually a shopping centre consistent with what is shown in the Cranbourne East Development Plan.

12 Linsell Boulevard is a proposed road. It does not currently exist other than by reference in a number of relevant planning documents, including the Cranbourne East Development Plan. It is proposed as one of the municipality's principal east west arterial roads and is estimated to eventually carry in the order of 20,000 plus vehicles per day. It will link with the Cranbourne bypass road when it is constructed. The proposed Linsell Boulevard will be part of the arterial road network and part of the "mile grid" network of major arterial roads in the municipality, which is one of the features of the structure planning for the municipality.

13 The land to the north of the relevant section of Linsell Boulevard is known as the Brindalee Estate. The Brindalee Estate has been subdivided and developed primarily with detached residential dwellings. Dwellings back onto the north side of Linsell Boulevard and are separated from it by a series of paling fences.

14 Land on the south side of the section of Linsell Boulevard to which the engineering plans in these applications relate is intended to be developed as a retirement village by the applicant. To the west, at the intersection of Linsell Boulevard with Narre Warren Cranbourne Road, is a proposed neighbourhood activity centre. To the east is land proposed for residential subdivision.

15 The subject land and surrounding land is included in the Residential 1 Zone and is affected by the Development Plan Overlay (Schedule 1) and the Development Contributions Plan Overlay (Schedule 4).

16 A well developed framework of structure planning applies to the locality and is implemented primarily through a series of development plans adopted under the Development Plan Overlay. The Cranbourne East Development Plan applies to the subject land in the immediate locality. It was approved by Council on 4 February 2003 in accordance with Schedule 1 to the Development Plan Overlay (clause 43.04) of the Casey Planning Scheme following an extensive consultation period and after considering submissions made to it.

17 In the Cranbourne East Development Plan, Linsell Boulevard is identified as an arterial road. A treed image is an important aspect of the vision for Cranbourne East in the Development Plan. Part of the overall outcomes that the Development Plan seeks to achieve are:

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development and duplication of a new east west arterial road (Linsell Boulevard) linking South Gippsland Highway and Berwick Cranbourne Road (Clyde Road component).

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extensive Boulevard planting (double rows of staggered tree planting) along the main road network. (Refer to: Arterial Road Network Design and Provision Table in section 4.2, page 18.) ...

The table referred to requires that for the arterial road network a service road must be provided for all abutting development except at locations where it is not physically achievable or desirable (eg where existing houses/lots back onto it). Where a service road is not provided, a 12m plantation reserve is generally required in its place.

18 With respect to Linsell Boulevard specifically, the Cranbourne East Development Plan requires a road reservation width of 34m, which allows for four-lane road, and a service road or, if not achievable, a 12m plantation reserve is required. Landscaping for Linsell Boulevard is specified in the Development Plan in accordance with the City of Casey Arterial Roads Tree Strategy (October 2003). The intent of this strategy is to create a particular landscape effect throughout the municipality along the main road network. Council submitted that it also has the benefit of providing a buffer between this major arterial road and the private open space of dwellings backing onto the road within the Brindalee Estate.

19 There have been two requests to amend the Cranbourne East Development Plan. Both were refused by Council. Both were the subject of applications for review before different divisions of the Tribunal. Both applications were virtually identical in terms of what they sought. One was successful (the first Tribunal decision), the other was not (the third Tribunal decision). In the first Tribunal decision the Tribunal approved the requested modification to the Cranbourne East Development Plan by removing the reference to the 12m tree reserve requirement in the vicinity of the Hunt Club Retirement Village and instead permitted only 4.5m on the south side of Linsell Boulevard and 0m on the north side (adjacent to existing dwellings in the Brindalle Estate).

20 Dennis Family Corporation Pty Ltd v Casey City Council [2003] VCAT 1891 was decided by Member Sharkey and is referred as the first Tribunal decision. It involved two applications for review which were decided as follows:

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In application P1644/2003 pursuant to section 149(1)(d) of the Act, it was ordered that the Cranbourne East Development Plan is amended to delete the requirement for plantation reserves on Linsell Boulevard. This order related to the section of Linsell Boulevard which is the subject of the current application and for which the engineering plans have been prepared.

•

In application P948/2003 a permit was granted for use and development of a retirement village and subdivision of the subject land known as the Hunt Club land. This resulted in the issue of planning permit No. P854/02 (the retirement village permit).

21 Condition 1 of planning permit P854/02 required the endorsed plan to show a 4.5m tree reserve adjacent to the southern boundary of the proposed Linsell Boulevarde. The plan endorsed under this permit is included in Appendix A.

22 Conditions 6, 29 and 37 of planning permit P854/02 provide as follows:

[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).

[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.

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

23 Plan of subdivision PS 520731J relates to planning permit P854/02. It reflects the endorsed plan in Appendix A. It subdivides the subject land into two super lots - Lot A and Lot B. The 4.5m wide tree reserve is shown as a reserve on this plan of subdivision but there is no reserve shown over the land that is nominally Linsell Boulevard.

24 The retirement village site was created as an allotment of land being Lot A on plan of subdivision PS520731J certified on 26 May 2004. A statement of compliance for plan of subdivision PS520731J was given on 28 June 2004 and a plan of subdivision was registered on 20 July 2004.

25 The northern boundary of the tree reserve created as part of plan of subdivision PS520731J is 34m south of the southern boundary of the Brindalee Estate.

26 Dennis Family Corporation v Casey City Council [2004] VCAT 1031, which was decided by Senior Member Liston, is the second Tribunal decision. This was an application for review of conditions in a permit for the subdivision of the land which was Lot B on PS520731J (see first Tribunal decision). As a result of the second Tribunal decision planning permit No. P529/03 was issued for subdivision into residential lots.

27 The residential subdivision is located in the eastern portion of the land. A vacant portion of the land remains at the intersection of Linsell Boulevard and Narre Warren Cranbourne Road, which will be developed in the future as the Cranbourne East Town Centre.

28 Conditions 6 and 24 of planning permit P529/03 provide as follows:

[6] Before any works associated with the subdivision start, detailed 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.

[24] Within 12 months of the approval of engineering plans for the permitted subdivision the owner must construct a sealed connection between Cameron Street and the north south collector road in proposed stage 24/21 along the alignment of Linsell boulevard (a two lane, two way, undivided roadway being required which is, where practicable, a partial construction of Linsell boulevard) to the satisfaction of the Responsible Authority.

29 The plan in appendix B, which is one of the plans endorsed under permit P529/03, illustrates the layout of the land and its relationship to surrounding land. Plan of subdivision PS532344Y relates to the land which is the subject of planning permit P529/03.

30 Linsell Boulevard between the retirement village site and the Brindalee Estate was created as a road reserve by plan of subdivision PS532344Y which was certified on 27 September 2004 but has not yet been registered. A copy of plan of subdivision PS532344Y is included in Appendix C.

31 One of the conditions that the Tribunal ordered to be deleted from the permit related to the provision of a 12m wide plantation reserve along the northern side of the proposed location of Linsell Boulevard between Cameron Street (Narre Warren Cranbourne Road) and the proposed north south collector road (Rochester Parade). Rochester Parade marks the western end of the section of Linsell Boulevard to which the engineering plans in this case relate. This tree reserve affected the western portion of the subject land, which is the site of the future town centre. In deciding to delete this condition, the Tribunal said:

[5] The proposed plan of subdivision incorporates a 12 metre wide service road/plantation reserve along its interface with the proposed Linsell Boulevard. This condition relates to a plantation reserve being sought by the Responsible Authority further to the west, although within the same estate, to the north of land within the estate which is set aside for the purpose of a shopping centre. I agree that there is room for debate about the merits of such large plantation reserves from an urban design perspective, and about whether or not the cost of setting aside land for that purpose should or should not be part of the overall cost of a development contribution plan, ultimately I do not think that these are matters which I need and perhaps even should resolve in the context of this application for review. It is my opinion that the land in question is remote from the land being subdivided, and the question of whether or not there should be a tree reserve as proposed should more properly be dealt with in the context of a proposal for the development of the shopping centre itself. This condition should be deleted.

32 Dennis Family Corporation v Casey City Council [2004] VCAT 2209, which was decided by Senior Member Baird and Member David, was the third Tribunal decision. It involved an application under section 149(1)(d) of the Act regarding the failure of the Council to consider a request to amend the Cranbourne East Development Plan to delete a requirement for a 12m tree reserve on the north and south sides of Linsell Boulevard in connection with the land that is planned to be developed for the Cranbourne East Town Centre.[2]

33 The Tribunal refused to amend the Cranbourne East Development Plan. It declined to follow the decision of the Tribunal in the first Tribunal decision. It found that the outcome would not be consistent with the outcomes that the Cranbourne East Development Plan and the overall Casey Arterial Roads Tree Strategy are seeking to achieve.

34 The Council was not happy with the first Tribunal decision. To counter the effect of it, Amendment C73 to the Casey Planning Scheme was exhibited. There has been a panel hearing in respect of this amendment but the panel report has not yet been received.

35 Amendment C73 does a number of things, but for the purpose of these applications it seeks to place a Public Acquisition Overlay over:

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the 12m tree reserves that are required to match the width of road reserve plus tree reserve abutting the retirement village with what is contemplated under the Cranbourne East Development Plan along the balance of the Linsell Boulevard alignment;

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Linsell Boulevard alignment between Narre Warren Cranbourne Road and Mayfield Road (extension).

Plans forming part of amendment C73 and showing the extent of the Public Acquisition Overlay and its effect are included in Appendix D.

36 Amendment C73 also amends existing approved Development Contribution Plans and the relevant schedules to the Development Contributions Overlay so as to assist in raising funds for the compulsory acquisition of the 12m tree reserves. The Council advised both the panel considering amendment C73 and the Tribunal at the hearing of these applications that even if amendments to the Development Contribution Plans are not approved to fund the acquisition of the tree reserve, the Council will still proceed with the acquisition.

37 Pending the introduction of Amendment C73, the consequence of the first and third Tribunal decisions result in a mismatch between planning for the section of Linsell Boulevard abutting the proposed Cranbourne East Town Centre between Narre Warren Cranbourne Road and Rochester Parade, and the section of Linsell Boulevard north of the retirement village.

38 In the section west of the retirement village between Narre Warren Cranbourne Road and Rochester Parade there will be a 34m wide road reservation flanked on either side by a 12m tree reserve giving a total width of 58m. Immediately to the east of Rochester Parade abutting the retirement village there will be a 34m wide road reservation flanked by a 4.5m tree reserve on the southern alignment only giving a total width of 38.5m. The result of this will be that at the western end of this section, the 4.5m tree reserve will abut a road reservation and the road reservation will partially abut a road reservation and partially abut a 12m tree reserve.

39 The third Tribunal decision addresses the possible consequences of this mismatch in terms of design of the road layout as follows:

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In the current case, the absence of a tree reserve on the north side opposite the retirement village site would produce a different alignment and visual outcome compared with a form of the Boulevard that includes the desired consistent service roads/tree reserves. If the tree reserve is not provided on the north side opposite the retirement village, we are not persuaded that deleting the tree reserve entirely to its west would produce a desirable outcome in the terms of the CEDP, Rather, whether with a tree reserve of 12 metres or a lesser width, there would be scope to design a road link that tapers from the corner of Narre Warren Cranbourne Road eastwards to meet the 34 metre wide reservation and then tapers out again. There does not need to be an abrupt change in road alignment. Consistent with the overall objectives of the CEDP and state and local policies within the Scheme (such as Clauses 18.01 and 19.03), a tapered alignment with a northern tree reserve would be more compatible with the outcomes sought by the arterial roads tree strategy than could be achieved relying only on the vegetation possible in a 6 metre wide reserve that is part of the 34 metre wide road reserve. This includes consideration of the visual impact of the rear paling fencing of the Brindalee Estate.

40 However, the engineering plans submitted do not attempt to accommodate this potential alignment posited in the third Tribunal decision as a means of overcoming the differences now incorporated in the Cranbourne East Development Plan in respect of Linsell Boulevard.

41 We consider that the anomaly created by the first and third Tribunal decisions has not been adequately addressed in these engineering plans. We do not consider the plans properly address the alignment of Linsell Boulevard when viewed in light of the objectives and strategies of the Cranbourne East Development Plan, which are being pursued across the municipality in respect of all other arterial roads. The Council is sufficiently committed to achievement of the objectives and strategies in the Cranbourne East Development Plan in respect of Linsell Boulevard to have prepared Amendment C73 and moreover is prepared to commit publicly to the acquisition of the necessary tree reserves even if the funding mechanisms provided for in Amendment C73 are not approved.

42 Approval of the engineering plans for the road construction and drainage works which are the subject of these applications would be contrary to the objectives and strategies of the Cranbourne East Development Plan and a range of other policy objectives included in the State Planning Policy Framework and the Municipal Strategic Statement of the Casey Planning Scheme. Approval of the engineering plans would embed the anomaly of the outcomes of the first and third Tribunal decisions, which resulted in the removal of the tree reserve partially on the south side of Linsell Boulevard and entirely from the north side adjacent to the retirement village but retained them elsewhere.

43 Given the Council's determination to overcome the effects of this decision through Amendment C73, we consider the preferred planning outcome would be to reject these engineering plans and not thereby prejudice the achievement of Council's strategic objectives or undermine the effect of Amendment C73.

44 If the road and the drain are constructed in the location shown on the engineering plans, these works would require later demolition in order to construct Linsell Boulevard as the Cranbourne East Development Plan envisages it should be constructed and as Council proposes to construct it. It would be a waste of resources on the part of both the applicant and the Council if this was to occur. We agree with the Council that the preferred planning outcome should be to construct the road on the proper alignment in the first instance and to locate the drain accordingly.[3]

45 The Tribunal must decide whether it can or should refuse to approve the engineering plans as they have been submitted.

46 In considering an application under section 40(1) of the Subdivision Act 1988, the Tribunal must take into account the matters set out in section 41B. Section 41B provides as follows:-

In determining an application under this Act (other than an application under section 39) the Victorian Civil and Administrative Tribunal must-

(a) take into account any relevant planning scheme; and

(b) where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application is determined, approved by the Minister.

47 In respect of the application under section 149(1) of the Planning and Environment Act 1987, the Tribunal must consider as appropriate, matters set out in clause 65.01 of the Planning Scheme. They include:

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The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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The purpose of the zone, overlay or other provision.

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Any matter required to be considered in the zone, overlay or other provision.

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The orderly planning of the area.

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The effect on the amenity of the area

48 It was submitted by the applicant that approval of the engineering plans is a technical matter that is required pursuant to the conditions of planning permit P854/02 (retirement village permit). This permit represents a right accrued.

49 It was further submitted that the requirement for approval of the engineering plans for both the construction of carriageways within the Linsell Boulevard road reserve and the required main drain is not an opportunity for the Council to re-litigate the issues determined by the Tribunal in the first Tribunal decision. No issue has been raised with either the design or specification of either the drain or the roadworks other than that the alignment does not make provision for the 12m wide tree reserves which the Council sought but did not obtain in the first Tribunal decision. The refusal to approve the engineering plans, both under the permit conditions and under the Subdivision Act 1998, is for an ulterior purpose effectively seeking to challenge the decision of the Tribunal in the first Tribunal decision, not related to whether the design was appropriate as a matter of engineering.

50 The construction of the drain and carriageways would not preclude a compulsory acquisition should, some time in the future, Amendment C73 be approved over part of the retirement village site, although obviously it could have ramifications in terms of the compensation payable.

51 The drain is required by conditions 6, 29 and 37 of planning permit P854/02 (the retirement village permit) and the construction of carriageways within Linsell Boulevard is required by condition 24 of planning permit P529/03 issued as a result of the second Tribunal decision.

52 The Council submitted that approval of the plans in the form submitted is not required by either permit P854/02 or P529/03. Furthermore, approval of the plans would be contrary to the planning scheme, which is something that must be taken into account under section 41B(a) of the Subdivision Act 1988, and would be contrary to the matters set out in clause 65.01 of the Planning Scheme.

53 In terms of whether approval of the plans is required by the permits, the Council submitted as follows:

Permit P854/02 allows use and development for retirement village and subdivision of the land. Condition 6 of this permit is relied upon [see paragraph 22]. However, it is not clear from the permit that the condition, in referring to engineering plans, refers to plans in respect of the construction of Linsell Boulevard. Council submits that it does not. There is no access between the retirement village and the proposed Linsell Boulevard. Access to the retirement village is through other streets joining with other roads already existing or proposed to be constructed by Dennis Family Corporation. Therefore, the link between this permit and Linsell Boulevard, other than the fact that the permit and subdivision resulted in an effective road width of only 34m without the 12m tree reserves, is tenuous at best. Although the issue of Linsell Boulevard was clearly discussed in the course of the hearing that led to the issue of the permit, it is only relevant to the extent that it effected the layout of the subdivision on the land and specifically, how close the retirement village subdivision was to the Brindalee Estate.

54 Linsell Road is not a subdivisional road. It is a regional arterial road. Permit 854/02 does not require the construction of the road, neither does it authorise the construction of the road. It was therefore submitted that the Council has not failed to approve anything which is sanctioned or required by permit P854/02 and to that extent the section 149(1) application is misconceived in so far as it is said to be based on or related to permit P854/02. The only qualification to this is the drain but construction of the drain really depends on the location of the road.

55 If any planning permit is relevant to this issue, it is planning permit P529/03 issued as an outcome of the second Tribunal decision. This is a permit for a residential subdivision to the east of the retirement village. The permit provides for construction of a road in the alignment of Linsell Boulevard and the relevant conditions are conditions 6 and 24 [see paragraph 28].

56 The Council submitted that the section 149(1) application is irrelevant to permit P854/02 but relevant and competent if it is regarded as referring to permit P529/03. Upon this basis, the relevant engineering plans therefore must be plans which show a road between Narre Warren Cranbourne Road (or Cameron Street as it is referred to in condition 24) and the north/south collector road otherwise known as Broad Oak Drive. The plans that have been submitted relate to part only of this alignment, namely the section between Rochester Parade and Broad Oak Drive along the northern boundary of the retirement village. Further plans are required to do what condition 24 of permit P529/03 requires, which is to link the proposed residential estate with the Narre Warren Cranbourne Road.

57 So far as the Council is concerned, construction of Linsell Boulevard between the retirement village (Rochester Parade) and the Narre Warren Cranbourne Road should be consistent with the standards and specifications of the Cranbourne East Development Plan and include the 12m tree reserves. However, the engineering plans submitted by the applicant are inconsistent with conceptual plans for this section of Linsell Boulevard. It was submitted that the plans should not be approved because they are unsatisfactory in terms of how they align with Linsell Boulevard to the east of the current extent as shown in the proposed plans. As the submitted plans do not meet the requirements of condition 24 of permit P529/03, it was further submitted that the Tribunal is being required to approve engineering plans that are directly inconsistent with the planning permit under which they are sought to be approved and the Tribunal should refuse that request.

58 With respect to the application pursuant to section 40 of the Subdivision Act 1988, this refers to plan of subdivision PS532344Y. This plan of subdivision relates to permit P529/03: it has nothing to do with the retirement village permit.

59 We are persuaded by the arguments of the Council that we should not allow these applications and approve the engineering plans.

60 We make the following findings in respect of the facts and issues before us:

•

The road construction is not required by planning permit P854/02. The construction of this particular piece of road does not serve the retirement village to which this permits relates.

•

The relevant permit in respect of both the applications under section 149(1) of the Planning and Environment Act and section 40 of the Subdivision Act is permit P529/03

•

The submitted plans for construction of the road do not comply with condition 24 of permit P529/03 because they do not provide a sealed connection for the full extent of the distance specified in condition 24.

•

The submitted plans for the road construction are contrary to the planning scheme and the orderly planning of the area because they are unsatisfactory in terms of how the road will align with Linsell Boulevard to the west if constructed in accordance with the Cranbourne East Development Plan and as proposed by the Council following the introduction of Amendment C73.

•

It is not appropriate to approve the drainage plans until the final alignment of the carriageways to be constructed along the full length of Linsell Boulevard has been determined because good planning requires that the type of drainage works proposed should be located beside a carriageway rather than beneath it.

61 Based on our findings we consider that it is open to the Tribunal to refuse to approve the engineering plans in order to achieve the preferred outcome. We do not consider we are obligated to approve the engineering plans under the conditions of either planning permit P854/02 or P529/03, or under the Subdivision Act.

62 This is a situation where two decisions of the Tribunal have led to an anomaly in terms of the outcomes that will be produced by the Cranbourne East Development Plan relating to the construction of Linsell Boulevard and the provision of tree reserves along it.

63 We do not consider that by refusing to approve these plans we are

re-litigating the first Tribunal decision or overruling it. Rather, we are faced with the situation of how to reconcile that decision with the outcomes of the third Tribunal decision. We consider that we must look at what the consequences will be of approving the engineering plans in the broad context of the Casey Planning Scheme, as required by clause 65 of the planning scheme and section 41B of the Subdivision Act. This includes the Cranbourne East Development Plan. In considering the Cranbourne East Development Plan we must take account of its overall objectives and strategies, not just the very specific provision relating to that section of Linsell Boulevard which was amended as a result of the first Tribunal decision. We consider that to approve the engineering plans as submitted would be contrary to the overall planning objectives of the Cranbourne East Development Plan.

64 It is clear that the outcome of the first Tribunal decision illustrates the pitfalls associated with using the Development Plan Overlay to guide the strategic planning of large areas such as urban growth corridors. Whilst the Development Plan Overlay provides a council with the flexibility to modify a development plan without the need for a planning scheme amendment, the corollary is that development plans can be reviewed by specified persons pursuant to section 149(1)(a) of the Planning and Environment Act. This is because the planning scheme specifies in the Development Plan Overlay that a development plan must be prepared (and may be amended) to the satisfaction of the responsible authority. As the first Tribunal decision has demonstrated, development plans can be amended by the Tribunal against the wishes of the Council.

65

Comments about the suitability of the Development Plan Overlay as a tool for implementing broad strategic planning were made by the Tribunal in the case of Jocelyn Meadows Pty Ltd v Casey City Council [2004] VCAT 2627. The Tribunal also commented about the approach that the Tribunal should take in considering applications to reject or change aspects of a development plan. On this issue, the Tribunal said:

40 Development plans deal with many types of situations. They may guide the future subdivision of individual parcels of land in a single ownership or they may govern the strategic planning of large areas of a municipality in multiple ownership. As indicated below, we consider the use of development plans and the Development Plan Overlay in the latter instance has shortcomings, nevertheless it is a valid option available to planning authorities under the Victoria Planning Provisions. However, when the Tribunal is faced with an application to review a development plan, we consider it is necessary to have regard to the potential strategic implications of the outcomes of the decision. Will the decision affect the ability of the council as planning authority to achieve its strategic objectives, not just with respect to the parcel of land in question but for the area as a whole to which the development plan applies? If the answer is yes, we consider the Tribunal should be very cautious in rejecting or changing aspects of a development plan. Strategic planning is the function of the council as a planning authority. Normally it will involve, formally or informally, consultation and participation by a wide range of stakeholders and the community. The review process provided by section 149 of the Act is not designed to engage the participation of parties who would normally expect to be involved in the strategic or structure planning process. Therefore, whilst it is not possible to be prescriptive due to the wide variation in types of development plans, we would say that if a development plan is based on a strategy or structure plan properly adopted by the planning authority, the Tribunal, in reviewing the actions of a council acting as responsible authority, should be reluctant to intervene in what is essentially a strategic planning exercise on the part of a planning authority.

66 In respect of the first Tribunal decision, the Tribunal did not have the benefit of this guidance and it is not evident that the strategic implications of the decision to amend the Cranbourne East Development Plan in respect to a single specific site were fully appreciated in the context of the issues being considered in that case.

67 As a matter of principle we consider that we should favour a decision that will achieve the preferred outcome if this is legitimately open to us. The opening paragraph of clause 65 of the planning scheme states that the responsible authority (and upon review the Tribunal) "must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause." We believe that consideration of the decision guidelines of clause 65 supports an outcome that would give effect to the objectives and strategies of the Council as generally embodied in the Cranbourne East Development Plan uncompromised by the outcome that would result from approval of these engineering plans. For the reasons stated, we consider the preferred outcome is legitimately open to us.

68 Finally, we do not consider that we should approve the engineering plans, which are likely to result in works being undertaken, if there is a reasonable likelihood that those works will prove redundant and will need to be undone. Although Amendment C73 is not yet an adopted planning scheme amendment to which regard must be had to pursuant to section 41B(b) of the Subdivision Act or section 84B(1)(f) of the Planning and Environment Act, nevertheless we consider it is a relevant matter that, in the circumstances, we may consider pursuant to section 60(1)(b)(iii) of the Planning and Environment Act. Likewise we consider the statements made by the Council at the hearing that the Council will proceed to acquire the land for the tree reserve in the vicinity of the retirement village whatever the outcome of the funding mechanisms provided for in Amendment C73, is also a relevant matter that we may consider.

69 For these reasons we decide that both applications for review should be refused and the engineering plans as submitted should not be approved.

[1] The placement of the main drain is dependent on the location of the road carriageway, which is the reason why the plans for the drainage works have not been approved either.

[2] This is the land referred to above by Member Liston in the second Tribunal decision.

[3] It is preferable that the drain be constructed adjacent to the carriageway rather than below it.