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[2004] VCAT 2445
Victorian Civil and Administrative Tribunal
2004-12-08
Mr J, Ms J
Original judgment source is linked above.
Application under section 77 of the Planning and Environment Act 1987; Manningham Planning Scheme; Business 2 Zone; Design and Development Overlay Schedule 6; Clause 63 Existing Use Rights for Motor Vehicle Sales and Servicing; Building and Works; Permit Triggers; Local Planning Policy Framework and DDO; Underdevelopment; Structure plans; Role of policy; Responsibility for setting and determining policy; Interpretation and implementation of policy; Interim use and development of land; Relevance of economic and market forces; Underutilization of land; Precedent
The decision of the responsible authority is affirmed. The Tribunal directs that a permit must not be granted.
Mr J Gobbo, QC, instructed by Deacons Lawyers. He called the following expert witnesses:
Mr David Clark, sustainable building consultant, Sinclair Knight Merz
Mr Stuart McGurn, town planner, Fulcrum Town Planners
Ms J Moles of Maddocks. She called the following expert witnesses:
Mr Rob Milner, town planner, Coomes Consulting Group
Mr Craig Czarny, urban designer, Hansen Partnership
1
This application involves a proposal to establish a Mercedes Benz car sales showroom and service centre at 632-640 Doncaster Road, Doncaster. The site has existing use rights and a permit is required only for buildings and works. We find that the proposal for a two level, single use, purpose built development is contrary to the objectives of the Doncaster Hill Activity Centre included in the Manningham Planning Scheme. It represents an underdevelopment of the site that will unacceptably compromise the achievement of the overall objectives for development of Doncaster Hill as a sustainable urban village. In particular, it will compromise achievement of the future preferred built form character of the precinct. We have determined that no permit should be granted.
2
In considering this application we have taken the opportunity to examine a number of principles that should be considered when addressing proposals that are an underdevelopment in the context of the planning policies applicable to the site.
3
This is an application under section 77 of the Planning and Environment Act 1987 to review the decision by the Manningham City Council to refuse to grant a permit in application no. 15375 for buildings and works, advertising signage and car parking in association with existing use rights for motor vehicle sales and service at 632-640 Doncaster Road, Doncaster.
4
The permit application was received by the Council on 19 February 2004. Further information was requested by the Council in March 2004. The application was advertised by letter, a sign on each street frontage and a notice in the local paper. No objections were received.
5
At its meeting on 29 June 2004, the Council determined to refuse the application and issued a Notice of Refusal to grant a permit containing the following grounds:
1. The proposed development does not implement the policy objectives for Activity Centres outlined in the State Planning Policy Framework, in particular Clause 17.01 and 17.02, Clause 19.03 and also the sentiments expressed in Clause 11 regarding general principles of land use and development.
2. The proposed development does not achieve the policy objectives specified for Principal Activity Centres contained in Melbourne 2030 and will severely prejudice the achievement of the policy objectives for such a centre expressed in Melbourne 2030.
3. The proposed development does not deliver the vision or implement the strategic objectives expressed in the Local Planning Policy Framework of the Manningham Planning Scheme for the Doncaster Hill Principal Activity Centre, in particular Clause 21.21 of the Municipal Strategic Statement.
4. The proposed development impairs the achievement of the vision and strategic objectives described in Clause 21.21.
5. The proposal does not satisfy the requirements of Clause 21.13 - Doncaster Hill Activity Centre Sustainability Management Plan Policy.
6. The proposal does not meet the design objectives, and neither does it satisfy the decision guidelines, of the Design and Development Overlay (Schedule 6).
7. The proposal has not adequately demonstrated that the site enjoys or, having regard to the uncertainty about timeframes, will continue to enjoy existing use rights.
8. If existing use rights do exist, it is not possible to determine whether the continuation of the use will satisfy the requirements of Clause 63 of the Manningham Planning Scheme.
9. The proposal is an underdevelopment of the land.
10. The proposed development is inconsistent with both purposes of the Business 2 Zone.
11. It is unreasonable and unfair to impose a limited timeframe as a condition of approval given the significant financial investment proposed by the Applicant, as this would misrepresent the Planning Scheme objectives and requirements for this location, and as this would also set an undesirable precedent with regard to this extent of new development on large and prominent sites within the Doncaster Hill Principal Activity Centre.
6
This Application for Review was received by the Tribunal on grounds that essentially refute the Council's grounds of refusal.
7
Written and oral submissions were made by the parties at the hearing.
8
Photographs, plans, three dimensional images and other documents were tabled during the course of the hearing that have given us a good understanding of the review site, its context and the proposal. All of the material tabled has been taken into consideration.
9
A site inspection was undertaken on 15 November 2004.
10
The review site is located on the southwest corner of Doncaster Road and Frederick Street, opposite Westfield Shoppingtown in the area known as Doncaster Hill.
11
It is located to the east of the intersection of Doncaster, Williamsons, Elgar and Tram Roads. It is elevated and is located close to the highest point of Doncaster Road with extensive views, particularly toward the city skyline to the west.
12
The site is rectangular in shape with a frontage to Doncaster Road of 48.37 metres, a frontage to Frederick Street of 103.6 metres and an overall area of 5,136 square metres. It slopes from east to west by approximately 4 metres and from north to south by 5 metres.
13
The site is currently being used for an outdoor display of cars only, but contains a showroom and buildings previously used for motor vehicle sales and servicing. On behalf of the Council, Ms Moles submitted:
While Council records are not complete, it does appear that existing use rights for the purposes of car sales and associated servicing repairs apply.
14
Doncaster Road is a wide main road with bus services running in both directions. Frederick Street is a dead end street as it has been closed at a point that is adjacent to the rear boundary of the review site. Doncaster Road and Frederick Street is a controlled intersection that provides vehicular entry and exit to Westfield Shoppingtown.
15
Westfield Shoppingtown, to the north of the site, is a principal activity centre (as defined in Melbourne 2030) containing shops, offices, cinemas, restaurants and a major bus interchange. A permit was granted in May 2004 for the centre to effectively double in size and includes the scaling back of the vehicular entry and exit at the intersection of Doncaster Road and Frederick Street.
16
To the east of the review site is a disused petrol station that has promotional hoardings around it advertising an approved high rise mixed use development known as "Montage".
17
To the south is the residential section of Frederick Street which cannot be accessed via Doncaster Road. Immediately to the south of the review site is a two storey dwelling setback 2.2 metres from the common boundary.
18
To the west is a property that is part vacant and part occupied by Autobarn with associated car parking. A right of way access is available to this site from Doncaster Road, across the northwest corner of the review site.
19
It is proposed to construct a new building to house Silver Star Motors, an established Mercedes Benz car dealership and service centre, that is currently located 1.5 kilometres further east along Doncaster Road.
20
The new building will be part two storey and split level. It will contain offices, a new car and pre-owned vehicle showroom with a reception area. Service workshops, storage and car parking will be located at the rear of the site with access via Frederick Street.
21
The proposal incorporates four internally illuminated Mercedes Benz signs to be erected on the north, east and west elevations, and a circular Mercedes Benz logo to be erected on the east and west elevations.
22
The parties all made mention of the various policies in the State Planning Policy Framework which, amongst others, encourage the consolidation of residential and employment activities within designated growth areas (clause 14.02), encourages a concentration of land uses and development in activity centres (clause 17.01) and encourages development which meets the community's needs and provides an overall net benefit (clause 17.02).
23
The State planning policy document, Melbourne 2030, lists Westfield Doncaster as a principal activity centre. It encourages the building up of activity centres as a focus for high quality development, activity and living for the whole community (policy 1.1) as well as promoting good urban design (policy 5.1).
24
In the Local Planning Policy Framework, the Municipal Strategic Statement ('the MSS') outlines critical land use issues facing the municipality in clause 21.03 and these include an ageing population, increasing pressure for residential development and the future role and appearance of development along Doncaster Road. The vision for the municipality identifies the Doncaster Hill area as a regional retail centre and identifies Doncaster Road as an employment spine and medium density housing opportunity area.
25
Clause 21.21 of the MSS came into effect on 26 February 2004, as part of Amendment C33 to the Manningham Planning Scheme, and contains specific objectives for the Doncaster Hill Activity Centre to implement the Doncaster Hill Strategy (October 2002). The Vision of this clause is that this centre will become "a high density, sustainable, vibrant, contemporary mixed use urban village with a strong sense of place and civic identity". The key vision objectives include:
To develop an integrated mixed-use precinct for Doncaster Hill Activity Centre which provides for an appropriate mix of uses and functions on a location specific level, including the provision of:
•
Mixed uses within buildings, particularly along boulevard locations;
•
Small scale retail opportunities at ground floor level in conjunction with other mixed use developments;
•
Additional commercial/office floor space; and
•
Flexible floor spaces within buildings to ensure life cycle adaptability.
26
The review site is within Precinct 2 of this clause and the vision for this precinct is:
The focus for high-density mixed use development on Doncaster Hill, this precinct will include cafes, restaurants and outdoor seating at ground level taking advantage of the north-facing aspect, forming the backbone of a vibrant and active boulevard. ...
27
This clause states that the Design and Development Overlay (DDO6) will be applied to provide specific guidelines for the use and development of land within Doncaster Hill Activity Centre; and the Doncaster Hill Activity Centre Sustainability Management Plan local planning policy (at clause 22.13) will provide specific ecologically sustainable development requirements for use and development.
28
The review site is contained within a Business 2 Zone pursuant to Clause 34.02 of the Manningham Planning Scheme ('the Planning Scheme'). The purpose of this zone is:
•
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
•
To encourage the development of offices and associated commercial uses.
29
A permit is required to construct a building or construct or carry out works. Before deciding on an application, the responsible authority (and upon review, this Tribunal) must consider the decision guidelines contained in the zone and Clause 65.
30
Motor vehicle sales and servicing is a section 2 (permit required) use in this zone. As the parties agree that the review site benefits from existing use rights for motor vehicle sales and servicing, clause 63.05 is applicable and states:
•
No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
•
Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
•
The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights.
31
The decision guidelines at clause 63.12 require that before deciding on an application under clause 63.05, the responsible authority (and, upon review, this Tribunal) must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.
32
Clause 34.02-6 of the Business 2 zone specifies that the applicable advertising sign controls is Category 2 at Clause 52.05. A planning permit is required to display an internally illuminated sign greater than 1.5 square metres and for a business sign closer than 30 metres from traffic or pedestrian lights.
33
The parties made mention of other provisions in the Planning Scheme relating to matters of car parking, motor vehicle sales and loading facilities. We are of the opinion that these provisions do not form part of the key issues associated with this proposal and therefore we have not elaborated on their content or relevance.
34
The review site is affected by a Design and Development Overlay and its purpose is:
•
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
•
To identify areas which are affected by specific requirements relating to the design and built form of new development.
35
Schedule 6 of this overlay ('DDO6') specifically relates to the Doncaster Hill Activity Centre. A permit is required for building and works. DDO6 contains:
•
Design objectives;
•
Buildings and works requirements for height, setbacks, overshadowing, boulevard character, landscape design and information to be submitted with a planning application; and
•
Advertising sign and subdivision requirements.
36
There are 16 design objectives in DDO6 that include the following of relevance to this proposal:
•
To provide for high density development that supports the strategic role of the Doncaster Hill Activity Centre as the location for sustainable, contemporary, vibrant mixed-use development.
•
To encourage the use of contemporary architecture combined with innovative urban design and building techniques incorporating ecologically sustainable design principles.
•
To achieve development that provides a distinctive sense of identity for each precinct in the Doncaster Hill Activity Centre.
•
To create treed boulevards framed by podiums, consistent front setbacks and a high quality landscape treatment along Doncaster, Williamsons and Tram Roads.
•
To encourage active street frontages and pedestrian generating activities along public urban spaces, boulevards, open space areas and pedestrian linkages.
•
To achieve development of circulation networks that focus on providing strong linkages within the Doncaster Hill Activity Centre, and enhance pedestrian and bicycle users' amenity.
•
To achieve development that provides accessible, safe, attractive and functional private and public open space opportunities, which are well connected and integrated within a permeable urban environment.
•
To encourage built form that capitalises on key views and vistas including to the Dandenongs, the Kinglake Ranges and the central Melbourne skyline.
•
To encourage consolidation of land that facilitates the creation of viable development sites capable of achieving the outcomes promoted by the Scheme for land within the Doncaster Hill Activity Centre.
•
To discourage the fragmentation of sites other than in association with a development proposal that achieves the outcomes promoted by the Scheme for land within the Doncaster Hill Activity Centre.
37
Table 1 and Map 1 of DDO6 identify the review site in Precinct 2D of the Doncaster Hill Area and Table 1 outlines height and setback design elements, together with the outcome to be achieved for each precinct. The elements of relevance to this application are:
•
A maximum building height of 36 metres; and
•
Setbacks of 5 metres to the podium frontage and 13 metres to the tower frontage; 4.5 metres from side boundaries and 5 metres from the rear boundary.
38
The outcomes to be achieved in this precinct are:
•
A higher scale of development that takes advantage of ridgeline location with a range of building heights stepping down with the landform.
•
A high quality gateway development.
•
Consistent built edge and landscaped and tree lined setbacks are an important feature of the boulevard frontage.
•
A pedestrian scale exists at street frontage and amenity impacts as a result of overshadowing, visual bulk or wind tunnelling are minimised.
39
Further discussion on the policies and controls, together with our assessment of the design response is contained in the following section.
40
This case involves the underdevelopment of a large, prominent site within the Doncaster Hill Activity Centre. The proposed development, which is for a two level, single use, car sales showroom and service centre, albeit in contemporary style, fails to accord with the strategic vision that is embodied in the Doncaster Hill Strategy. The vision is that Doncaster Hill will develop as an integrated, high density residential and mixed use precinct with new development showcasing ESD (ecologically sustainable development) principles and best practice. Described as a 'sustainable urban village', Doncaster Hill is intended to reflect broader principles of sustainability by co-locating residential, work, retail, entertainment and community facilities as a means of encouraging walking and increased public transport use, and reduced levels of car dependency.
41
The vision is incorporated into the MSS and will be implemented by various means including a detailed Design and Development Overlay (DDO6) which sets in place a range of controls relating to the built form outcomes the council wishes to achieve. They include height limits, setbacks for podium structures and towers and creation of tree-lined boulevards along Doncaster Road, Williamsons Road and Tram Road.
42
By any measure, we find that this proposal fails to meet the objectives set out in the planning scheme for Doncaster Hill and this precinct in particular. The development is not high-rise or high-density but is dramatically lower than the preferred height. It is not mixed use but caters only for a single use, namely motor vehicle sales and service. No interaction will occur between the public and the private realms through the provision of people-generating uses such as cafes, restaurants and outdoor seating and no advantage is taken in this respect of the north-facing aspect or views. The building does not contribute towards the preferred style of urban form along Doncaster Road by providing a continuous built edge and an active pedestrian space within the setback. The building may be contemporary in style and incorporate ESD features, but it contributes nothing to the broader sustainability objectives of mixed use development underlying the notion of a sustainable urban village.
43
We further find that not only will the proposal fail to meet the objectives of the planning scheme, it will undermine the potential for those objectives to be achieved in a broader context because:
•
It will compromise the urban design vision for Doncaster Hill.
•
It will compromise the potential to achieve the levels of development which are planned for Doncaster Hill.
•
It will set an undesirable precedent and send a message to other developers that the planning scheme objectives can be ignored.
•
It will detract from the preferred future character of the area.
44
It was argued by the applicant that the proposal would not have these outcomes. In particular, it was submitted that:
•
Policies relating to residential redevelopment of Doncaster Hill are not relevant to this application because:
a
They do not relate to the permit triggers in this case; and
b
They are optimistic and have not been borne out by the market and therefore cannot be pragmatically achieved.
•
The proposal will achieve a better outcome than leaving the site in its present condition.
•
There is nothing in the planning scheme to compel a development of the scale which the vision seeks to achieve. Planning policy may encourage use and development but cannot require it.
45
This case raises important issues of principle for the interpretation and application of structure plans. The need for strategic planning has been given great emphasis by the State Government. Melbourne 2030 encourages local government to undertake detailed structure planning for activity centres and the Minister for Planning has announced initiatives to assist councils to undertake this task. Manningham City Council is at the forefront of councils which are preparing structure plans for their activity centres through development and implementation of its strategy for Doncaster Hill.
46
By their very nature, structure plans are long-term strategic plans whose objectives will be implemented over many years. Based on the objectives set out in Melbourne 2030, planning for activity centres will require high density/intensity outcomes in certain locations and achievement of those outcomes will have implications for the achievement of other objectives elsewhere.
47
Important questions arise in circumstances where policy outcomes are at odds with the needs or means of land owners, where the market does not currently support delivery of policy objectives or where individual sites are not suitable for the type of use or development which the policy seeks to achieve. When should the difficulties and constraints arising from land ownership patterns, the financial constraints of land owners, the state of the economy or market preferences be permitted to influence decisions which may result in an underdevelopment that could undermine the potential to achieve the long-term strategic vision for an area?
48
There are a number of broad, key principles that we believe are applicable to decisions involving underdevelopment in these sorts or circumstances and which have guided our decision. Such cases are likely to arise with increasing frequency as more councils complete structure plans for their activity centres.
The role of policy and responsibility for setting policy
49
We are frequently faced with arguments that something is an overdevelopment, and responsible authorities (and on review, the Tribunal) have no difficulty in rejecting proposals on this ground. It is far more difficult to deal with arguments that something is an underdevelopment. It is made especially difficult where the aspirations of the permit applicant do not meet the strategic vision set out in the planning scheme because we are invariably invited to focus on the needs or means of the applicant or the capacity of the site itself. The risk with this approach is that these personal considerations will be given greater weight than the policy objectives set out in the planning scheme.
50
It is sometimes argued that if a use or development is permitted by the planning scheme, then it ought to be approved and an applicant should not be forced to do something more with his land than suits his purpose or his means. In this respect, it is said that planning policy may encourage a use or development but cannot compel it.
51
However, the limitations of this argument are that it ignores the role of policy in planning schemes. Planning schemes based on the Victoria Planning Provisions are based on policy and decisions must be predicated on the degree to which they will implement policy. For example, clause 31 of the Victoria Planning Provisions states:
Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.
52
The purpose of all zones, overlays and various other provisions expressed throughout the planning scheme includes the following:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
53
A council wears two hats in the planning process - as planning authority and responsible authority. It is the role of the planning authority to set policy and include that policy in the planning scheme. It is the role of the responsible authority to administer the planning scheme and to make decisions that will seek to implement the policy it contains. It is not open to the responsible authority to ignore policy in the process of decision-making because it may no longer agree with it or does not like the outcome it produces in a particular set of circumstances. To change policy requires an amendment to the planning scheme by the planning authority. The same constraints apply to the Tribunal on review where it stands in the shoes of the responsible authority.
54
When policy is adopted into the planning scheme it goes through a process set out in the Planning and Environment Act 1987, which will normally involve public participation through exhibition of an amendment, the opportunity to make submissions and to be heard by an independent panel. A planning authority has an obligation to prepare a municipal strategic statement (MSS) for its municipal district which must contain the strategic planning, land use and development objectives of the planning authority.[1] The planning authority also has an obligation to review its MSS every three years or as directed by the Minister[2] and to regularly review all the provisions of the planning scheme for which it is a planning authority.[3] The Victoria Planning Provisions envisage that an MSS will change and evolve over time to reflect the strategic planning for an area. Clause 20 states:
The MSS is dynamic and enables community involvement in its ongoing review. The MSS will be built upon as responsible authorities develop and refine their strategic directions in response to the changing needs of the community.
When preparing amendments to this scheme and before making decisions about permit applications, planning and responsible authorities must take the MSS into account.
55
If a policy is included in a planning scheme, the Tribunal should be cautious before finding that the policy is not capable of implementation or is not a pragmatic policy and therefore should be disregarded. The Tribunal must seek to implement the planning scheme objectives and apply policy where relevant even if this leads to outcomes that the Tribunal, applicants, objectors or even the council do not like or agree with. The consequences of a proper application of policy rest with the planning authority. It is always open to the planning authority to change a policy that is not working, that is producing unwanted or undesirable outcomes or where the needs of the community change. Indeed, these are matters that each council should consider when it undertakes its three-yearly review of the MSS.
56
As Member Keaney said in the case of Mitchell v Port Phillip City Council [2002] VCAT 452 (11 VPR 127) with respect to a particular policy favouring a "preference for somewhat larger dwellings with larger areas of open space which might be attractive to households other than single persons or couples":
[29] ... The Tribunal believes that Council is entitled to have that strategic view. It is a view which has been publicly tested. It is a view which has been considered by a Planning Panel. It is a view now sanctioned by the State Government. Under new format planning schemes therefore it is a policy position of some importance which should only be overturned for very good reason. The Tribunal is not in a position of reviewing the merits of that policy; it is simply trying to implement it.
57
Of course there are instances where it will not be appropriate to implement a policy. Situations will arise where there are competing policies, in which case the responsible authority and the Tribunal must be guided by the principles set out in clause 11 of the Victoria Planning Provisions:
It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
Planning, under the Planning and Environment Act 1987, is to encompass and integrate relevant environmental, social and economic factors. It is directed towards the interests of sustainable development for the benefit of present and future generations, on the basis of relevant policy and legislation. Planning authorities and responsible authorities are responsible for the effective planning and management of land use and development in their districts for the broad interests of the community, through the preparation of strategic plans, statutory plans, development and conservation plans, development contribution plans, and other relevant plans to achieve the objectives of the Act.
58
In other cases, the policy may be ambiguous, unintelligible or produce an absurd outcome. In situations such as this the Tribunal may well reach the conclusion that a particular policy should not or cannot be applied, as the Tribunal observed in the case of Brichon Developments Pty Ltd v Glen Eira CC [2001] VCAT 497 (reported at 8 VPR 10), where Member Read said:
[29] ...However, the application of any policy still has to be 'tempered' by considering whether the policy is meaningful in the particular (or any) situation. If this is not the case, it is appropriate to set the policy aside or vary its interpretation. I do not accept the attitude that, merely because a policy is incorporated into the planning scheme it will necessarily always (or ever) make sense. There have been plenty of examples, or situations, where approved policies can be found to be inapplicable, or not open to sensible or useful interpretation.
59
There will also be cases where the Tribunal finds that a policy is not relevant or applicable to the facts before it. A decision about whether a policy is applicable or relevant will always turn on the facts and circumstances of the case. Equally, as Justice Balmford said in the Supreme Court case of Glen Eira City Council v Gory [2001] VSC 306 with respect to the obligation to consider policy 'as appropriate': "To consider is not necessarily to adopt or to follow."
60
However, presuming that a policy is relevant, it makes sense and there are no competing policies or any overriding community interest to the contrary, we consider the Tribunal should seek to implement that policy. This may mean refusing a permit on the grounds that it constitutes an underdevelopment of a site, which would undermine or prejudice the long-term achievement of the policy objectives. It is important though to bear in mind that it is the role of the Tribunal in each case to consider and determine if in fact the policy is relevant, if it makes sense, whether there are competing policies (and if so how they should be balanced) and ultimately if there is any overriding community interest to the contrary.
61
At times, it will be appropriate for the Tribunal to comment on policy to assist councils and the community in considering whether the policy is appropriate or workable, whether it may require change or if in fact it says what the council thinks it says. Policies are not always well expressed and the Tribunal has a legitimate role in exploring the implications and application of policies in situations which come before it but which may not have been contemplated at the time of formulation. This is especially so in cases where there is ambiguity or absurd outcomes may result from a literal interpretation.
62
As structure plans are often intended to guide planning and be implemented over many years, situations will arise where the market will not yet support policy outcomes. When the market is not yet ripe for the type of use or development envisaged by policy, we consider there are a number of interim solutions that may be implemented.
•
Existing development can be recycled. Alterations or additions to buildings should be supported that will facilitate ongoing or alternative uses in the short to medium term.
•
Time limits can be attached to permits.
•
New uses with no or minimal development components can be approved. So long as the use or development in question does not compromise the long-term strategy objectives, there is no reason why a site should not be used for an interim, alternative use, which might be expected to give way over time to a use or development that better meets the planning scheme objectives.
•
Development is designed to accommodate later change. There is no reason why development which implements long-term strategy objectives cannot be built or developed in stages.
63
However, we do not consider it is appropriate to approve a development, which represents a major, long-term investment, that is clearly contrary to policy objectives and that will prejudice the achievement of particular built form outcomes or the preferred future character of an area. In this respect we consider there is an important distinction to be drawn between a use or development that may be an underdevelopment but will not preclude the later achievement of policy objectives and one that will undermine or preclude the long-term achievement of policy objectives.
64
The next issue of principle to consider is the relevance of the individual needs or circumstance of an applicant for a proposal which is an underdevelopment.
65
There appears to be little difficulty on the part of responsible authorities in rejecting a proposal that represents an overdevelopment even though the developer may not reap the same profit or financial reward from a lesser development or may even lose money. Economic considerations must be addressed objectively from a community perspective. It is for this reason that financial outcomes for individual applicants are not given great weight except in certain limited circumstances.
66
In the case of a proposal which represents an underdevelopment, we consider the financial implications for individual applicants should be treated in the same way. It is simply not relevant to consider whether a more intense development is within the means of an applicant or suits their purpose. There are many people who would prefer to use or develop their land for a purpose or in a way that is prohibited by the planning scheme or is contrary to planning policy but this does not mean they should be permitted to do so. The situation is no different with an underdevelopment that is contrary to policy.
67
The reason for this view is that strategic planning is not based on economic returns to landowners or land ownership patterns but on implementing the objectives of planning in Victoria as set out in the Planning and Environment Act 1987. Planning decisions are based on the characteristics of the land and the planning policies and controls affecting it, not the characteristics of the applicant. It is for this reason that planning permits apply to and run with the land. They are not personal to individuals except in extremely rare cases. It must always be assumed that land may change ownership over time. Therefore strategies must be framed and decisions must be made in light of what is appropriate for the land and the long term interests of the community not individual owners for the time being.
68
There is no doubt that strategies and policies will have an effect on land ownership patterns and economic outcomes, but to be relevant in individual planning decisions they must be effects that will affect the community and that will, in the words of clause 11 of the Victoria Planning Provisions, be "in the interests of net community benefit and sustainable development." We do not consider that the needs or financial implications for an individual landowner should be the driver in decision making where these interests may compromise the achievement of strategic planning objectives.
69
If a site is suitable for the policy outcomes envisaged by the planning scheme, it is relatively straightforward to assess whether a proposal will contribute towards achieving those outcomes or not. A more difficult situation arises where the site is not suitable for such use or development. The question then arises whether the policy objectives could be achieved if the site was combined with other land. Even if this is the case, what happens if that other land is not available to the applicant for consolidation (either because of costs or otherwise) or the applicant is unable to dispose of his land to other potential developers?
70
The dilemmas raised by this sort of situation are likely to become more common as structure planning for activity centres to implement Melbourne 2030 proceeds. One of the problems that inhibited structure planning for district centres and activity centres in the past was the difficulty of assembling development sites. We consider it would be unfortunate if the difficulties associated with the individual suitability or potential of sites to be used in a way that promoted strategic outcomes was to result in the removal of the opportunity for those sites to be used or developed in the future to meet strategic objectives.
71
We do not consider it is appropriate for the council as responsible authority or the Tribunal to speculate about the likelihood of success of the planning policies included in the planning scheme and to discount them on the basis that they are unlikely to be achieved for whatever reason. As we have said, if time proves that the policies are not working, it is the responsibility of the planning authority to change them, and there are processes to enable this to occur.
72
Whilst no planning scheme or structure plan can force development opportunities to be taken up, sometimes the development industry needs to be challenged about what is possible. Panels and Tribunals are often told that something is not 'feasible' because it has not been done before or because there is no perceived market for it. But if opportunities are protected by eliminating easier, alternative options, it is surprising what time, imagination and different economic circumstances can achieve in terms of influencing what is feasible or acceptable to the market. Residential development at Southbank is an example. Whilst the planning policies promoting residential development at Southbank did not of themselves result in the recent residential boom, when the time and circumstances were ripe, the opportunities were present and the planning policy framework was in place to facilitate this policy based outcome.
73
Likewise, the fact that there are no consolidation opportunities for an individual site at present should not be used as justification to conclude they will never occur. Sometimes the refusal of a proposal for an individual site can help to create the climate for future consolidation.
74
Therefore we consider it is important not to allow the further fragmentation of sites or their development in a way that would preclude the reasonable implementation of policy objectives in the future simply to overcome the difficulties associated with a site's short-term suitability.
75
In addition, we do not consider it is essential for councils to undertake site consolidation to achieve policy objectives or even that they have specific policies or means of implementation in the planning scheme to achieve this outcome. Consolidation of sites is something that in our system should be generally left to the market. It is unusual for councils to act as entrepreneurs in this way. Sometimes the State Government may play a role in acquiring land, usually through agencies such as VicUrban. But such intervention cannot be relied upon to implement all of a council's strategic planning objectives requiring the amalgamation of development sites. It is unreasonable to penalise the potential for this to occur through the normal operation of market forces over time by committing small sites to alternative outcomes not in accordance with policy simply because the opportunities for consolidation are not there at present. We repeat that if it is demonstrated over time that policies are not working and that sites are lying dormant or amalgamation of development sites cannot be achieved, it is up to the planning authority to address the matter.
76
Finally, with respect to the general principles that should guide the consideration of proposals which represent an underdevelopment, we consider the fact that sites may remain vacant or underutilised for a period of time is not in itself a reason to approve something less than demanded by relevant policy objectives. Despite rhetoric to the contrary, sites are not rendered sterile by policy. They can always continue to be used for their current use, or development on them can be adapted for alternative purposes as an interim measure. Vacant or underutilised sites are not necessarily a negative feature as they represent opportunities for the future.
77
The subject site is a key site on Doncaster Hill. It is highly visible from all approaches and stands on the crest of the hill directly opposite Westfield Shopping Town. The size of the site makes it eminently suitable for development in accordance with the Doncaster Hill Strategy without the need for consolidation with other sites. Its size also means it is capable of making a significant contribution (in terms of number of dwellings or floor space area) to achieving the ultimate objectives for Doncaster Hill. The size of the site and its prominence will make a non-conforming development especially noticeable in the longer term as other developments begin to occur in accordance with the policies in the planning scheme. It will significantly damage the overall urban design effect intended for this location, which is to create a higher scale of development that takes advantage of the ridgeline location with a range of building heights stepping down with the landform.
78
The Doncaster Hill Strategy is a 20 year strategy adopted by Manningham City Council in October 2002. It represents the culmination of planning for the Doncaster Hill area since the 1980s. In brief terms, the future vision for Doncaster Hill is that it will develop as an integrated, high density residential and mixed use precinct with new development showcasing ESD (ecologically sustainable development) principles and best practice. Described as a 'sustainable urban village', Doncaster Hill is intended to reflect broader principles of sustainability by co-locating residential, work, retail, entertainment and community facilities as a means of encouraging walking and increased public transport use, and reduced levels of car dependency.
79
It is worth quoting from the Panel Report in respect of Amendment C33 to the Manningham Planning Scheme to indicate the breadth and scope of the vision for Doncaster Hill.
Amendment C33 to the Manningham Planning Scheme comprises the first part of a package of amendments that will put in place the statutory framework to give effect to the strategic intent expressed in the Doncaster Hill Strategy (October 2002). In turn, the Doncaster Hill Strategy is an implementation in part of the Manningham Residential Strategy.
The Doncaster Hill Strategy represents the culmination of many years of strategic work by Manningham City Council. It develops and implements important aspects of the Manningham Municipal Strategic Statement, the State Planning Policy Framework and the Metropolitan Strategy, Melbourne 2030, as they relate to the Doncaster Hill Activity Centre.
The vision expressed for Doncaster Hill in the Doncaster Hill Strategy is that it will develop as an integrated, high density residential and mixed use precinct with new development showcasing ESD (Ecologically Sustainable Development) principles and best practice. Doncaster Hill is intended to be a 'Sustainable Urban Village' that will be home for some 8,300 residents and will provide 10,000 employment opportunities by 2020. With 4,080 new residences and an additional 20,000m2 of commercial/office floor space and 10,000m2 retail floor space (excluding Westfield Shoppingtown expansion), Doncaster Hill will become a key destination in Melbourne's east.
There are two key themes within Amendment C33. The first relates to its urban form and represents an important aspect of the Manningham Residential Strategy. Development at Doncaster Hill will be high density and the built form will provide a range of building heights from a maximum of 40m stepping with and emphasizing the existing dramatic land form of Doncaster Hill. By focussing high-density residential development at Doncaster Hill, the Doncaster Hill Strategy will diversify housing opportunities within Manningham and reduce pressure for development in more sensitive, low-density and non-urban areas of the municipality.
The second key theme relates to ecological sustainable development. There is a strong commitment to sustainability in the Manningham Planning Scheme and Corporate Plan. The concept is embodied in Amendment C33 through the requirement that all new use and development in the Doncaster Hill Activity Centre must embody ESD principles in design, construction and operation, and that the vehicle for this shall be the preparation of a Sustainability Management Plan.
80
The subject site has existing use rights for the purpose of motor vehicle sales and service. The permit being sought is a permit for development of a building where the use must be taken as a given. A key argument put to us was the relevance of policy given the limited exercise of discretion. We must therefore decide what are the relevant considerations for a permit for buildings and works.
81
It was submitted by the applicant that there is no nexus between the form of development proposed for the use of a motor car sales showroom and workshop, and strategies relating to Manningham's housing policy. By requiring a residential tower to be built on the site, the council is seeking to effectively force a use of land onto the site by rejecting the form of development proposed. Where the permit trigger is for buildings and works, a local policy cannot be used to prevent the use (or have this effect) by rejecting the built form that is typical of that form of development. Such an approach fails to recognise that certain uses will require certain built form outcomes. It was submitted that the relevant considerations in the present case are confined to those considerations which are relevant to a buildings and works application for a motor vehicle showroom and workshop. Further, to exercise the buildings and works discretion to change the use of the site would be to exercise the discretion for an improper purpose.
82
We disagree with a number of these propositions as they were put by Mr Gobbo.
83
First, we do not consider the policies relating to Doncaster Hill should be described as residential policies and therefore not relevant to the subject proposal. Development of Doncaster Hill for high density residential purposes is one of the strategies within the Manningham Residential Strategy and is an important aspect of the Doncaster Hill Strategy, but the Doncaster Hill Strategy is an integrated strategy which has much broader objectives. Helping to meet the future residential needs of Manningham is only one aspect.
84
We take the view that whilst we must apply those policies that are specifically relevant to development and built form outcomes, we must do so in a way that supports the overall vision and objectives of the planning policy framework. It is not appropriate to attempt to divide the overall planning scheme vision/objectives for Doncaster Hill into neat and separate use and development categories and say that some are not relevant because this is a development only application. That is an excessively narrow approach and one which misinterprets the purpose of all the zones, overlays and various other provisions expressed throughout the planning scheme, which is:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
85
Implementing the planning policy framework found within the planning scheme requires an integrated approach to be taken, as stated in clause 11. As the Tribunal said in TEAC Australia Pty Ltd v Port Phillip City Council [1999] VCAT 1222, one must "develop an overall picture of the strategic and policy framework relevant to a particular proposal". We do not consider this conflicts with the principles stated by Justice Morris in Victorian National Parks Association Inc v Iluka Resources Ltd [2004] 16 VPR 98 that "in exercising a discretion conferred by a particular planning scheme provision, the decision maker is confined to considerations which are relevant to the purpose of the particular provision."
86
In the present case, the site has existing use rights for motor vehicle sales and service. There is nothing to preclude its ongoing use for this purpose. However, existing use rights relate to the use of land and existing development. They do not confer a right to redevelop the land even for the same use. Clause 63.05 requires a permit for new buildings and works and specifies that a permit must not be granted unless the building or works complies with any other building or works requirement in the scheme. The decision guidelines in clause 63.12 provide that:
Before deciding on an application under Clause 63.05, 63.08 or 63.10, in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the responsible authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.
87
These provisions open the full panoply of policy related issues and the development requirements of DDO6 and indicates a clear intent that new development for existing use is not immune from the need to contribute to the integrated implementation of planning policy set out in the SPPF and LPPF.
88
The council does not object to the use of the site for a continuation of its existing use of motor vehicle sales and service. However, if the site is to be redeveloped, the council objects to a development designed for this single purpose and wants a high density development designed for mixed use which meets the other development objectives for Doncaster Hill.
89
We consider this is the type of development outcome that is supported by the planning policy framework in the Manningham Planning Scheme. It is a policy that is relevant to be considered when exercising a buildings and works discretion. We regard the term mixed use as being descriptive of the type of development which the policy objectives support. There is no such use for the purpose of mixed use. A mixed use development simply means a development that includes multiple uses, whatever the purpose of the uses may be.
90
The MSS does not draw neat distinctions between objectives that relate to use and those which relate to development. The objectives are integrated and must be read holistically in the context of the overall vision, namely that Doncaster Hill "will be a high density, sustainable, vibrant, contemporary mixed use urban village with a strong sense of place and civic identity based on the following key vision objectives".[4] There then follows a series of objectives, some of which are use related but many of which relate to the preferred form of development. One of these objectives is:
•
To develop an integrated mixed-use precinct for Doncaster Hill Activity Centre which provides for an appropriate mix of uses and functions on a location specific level, including the provision of:
mixed uses within buildings, particularly along boulevard locations;
small scale retail opportunities at ground floor level in conjunction with other mixed use developments;
additional commercial/office floor space; and
flexible floor spaces within buildings to ensure life cycle adaptability.
91
We read this objective as one relating to the style of development that should be provided, namely development which provides for a mix of uses. We consider this is a relevant policy and in failing to meet this objective the proposal is contrary to an important aspect of policy relating to the preferred form of future development within Doncaster Hill.
92
There was general consensus by the parties that changes in the market had resulted in a lack of response to the Doncaster Hill Strategy. The subject site itself is an example. It had a permit for an 11 storey building including 132 apartments, restaurant, offices and retail space which has not proceeded. Other projects are also on hold for which permits have been granted. However, the parties differed in their interpretation of the implications arising from the current state of property market for the future likelihood of success of the Doncaster Hill Strategy.
93
According to Mr Haratsis, who gave evidence on behalf of the Council, development in Doncaster Hill has not proceeded as planned because of several key factors but he expected the private sector to move forward with significant residential development in Doncaster Hill in the next 3 to 5 years if current policies are pursued. This development will be enhanced by:
•
A favourable economic cycle
•
Pent up demand and ageing of the population
•
The right mix of naturally occurring features and strategic framework
•
The impact of increased land values within the metropolitan growth boundary
•
Expansion of Westfield Shoppingtown
94
In his view, when the next cycle in property growth occurs there will be a massive increase in demand for medium density and high density housing. The only relevant issue to consider is the timing.
95
Mr Haratsis gave further evidence about the population projections and other investigations and analysis that underpinned development of the Doncaster Hill strategy and which led to its introduction into the planning scheme. He gave evidence that in developing a sustainable urban village at Doncaster Hill it was important to encourage and provide for a mix of uses, not only to provide services to residents and generate a sense of place and destination, but to provide employment opportunity. In this respect, Doncaster Hill is not only intended to be a residential focus but to provide in the order of 10,000 jobs by 2020.
96
This evidence was challenged by Mr Papaleo of Charter Keck Cramer, who gave evidence on behalf of the permit applicant. He considered that the assumptions made and the conclusions drawn by Mr Haratsis were flawed both in respect of the work underpinning the Doncaster Hill Strategy itself and the prospects of future development. In his view, "it is difficult to foresee that Doncaster Hill will emerge as one [of] Melbourne's primary suburban apartment submarkets in the medium term or indeed the long term."
97
According to Mr Papaleo, the highest and best use of the subject site in the short - medium term is for the purpose of a car sales and service centre, not residential apartments. He pointed to the evolution of new car precincts across Melbourne and the development of such a precinct at Doncaster. He saw the proposed development as contributing to consolidation of this precinct. In the long term, i.e. beyond 10 years, he considered that the highest and best use would remain for a car sales and service centre for various reasons, including that there will be insufficient demand for residential apartments (and much lower than forecast in the Doncaster Hill Strategy), to warrant the development of the subject site for residential purposes notwithstanding its locational attributes.
98
Mr Papaleo further stated:
In the interim, however the private sector should not be penalised through the suspension of any other development form in the precinct because this will inevitably lead to urban blight and a further detrimental perception of the centre being created.
99
Mr Gobbo referred to the note of caution sounded in Golden Ridge v Whitehorse CC (Mitcham Towers) [2004] VCAT 1706 about the limitations of structure plans for activity centres. Mr Gobbo quoted with approval the following words of the Tribunal:
[72]...Major development decisions containing residential development are likely to be in the hands of the private sector, and will be motivated by opportunity and profit, not the content of a structure plan, which, at best, can only vary the limits placed on development opportunities, not require them to be taken up.
100
Further extracts were quoted from this case by Mr Gobbo who went on to say:
This case is really about the flip side of the situation explored in the quote above. There is a strategy in place that seeks to encourage high rise development, but the "development opportunities created by the private sector" do not reflect that strategy. The strategy itself has proceeded upon unrealistic expectations as to what it can achieve in the absence of concrete development proposals. In those circumstances, it is respectfully submitted that the strategy ought to be revisited by Council to make it more flexible and more adaptable to the market, and in the interim, it must be read with sufficient flexibility to ensure that the activity centre does not become the victim of planning blight.
101
We do not accept this argument and we likewise reject the relevance of Mr Papaleo's evidence for the following reasons.
102
In a case such as this it is not appropriate to attack the credibility of the economic and demographic investigations and analysis which underpin the Doncaster Hill Strategy. The time for this was when Amendment C33 was introduced into the Manningham Planning Scheme. There was no challenge to the work at this time. The principles and policy of the Doncaster Hill Strategy have now been included in the planning scheme and are part of the planning policy framework of the scheme. It is not the role of this Tribunal to challenge the bases of policies included in planning schemes. As we have stated earlier, once a policy is included in a planning scheme, the responsible authority and this Tribunal (on review) must accept the policy and have regard to it. There will be occasions, especially when there may be conflicting policies, when it will not be practicable or appropriate to apply a particular policy. But that does not mean it is open to reject that policy as being without foundation or based on flawed evidence. If the bases of a policy are demonstrated to be flawed or a policy is not working, it is up to the Council in its role as planning authority to change the policy, but the Tribunal should not encourage permit applicants who may disagree with a Council policy to challenge the validity of the policy. In this respect, challenges to the validity of policy are different to arguments that the outcomes which the application of a policy may produce would be contrary to other policies or produce an inappropriate planning outcome.
103
Thus we do not consider relevant that part of Mr Papaleo's evidence which challenges the assumptions and conclusions of Mr Haratsis and Macroplan used in development of the Doncaster Hill Strategy.
104
The second aspect of Mr Papaleo's evidence which we do not accept is that there has been a market failure of the strategy and consequently the current proposal represents the best option for the land.
105
We consider it is simply too soon to draw this conclusion. The Doncaster Hill Strategy was adopted in October 2002 and the relevant planning scheme provisions have only been in place since February 2004. The Doncaster Hill Strategy is a long term strategy and as the panel noted in its report on Amendment C33:
Any long term strategy will be implemented over a number of development cycles.[5]
106
Such a conclusion also ignores the extent to which strategies, structure plans and planning frameworks can influence outcomes.
107
In addition to the incorporation of policy and controls in the planning scheme, we consider that that implementation of the Doncaster Hill Strategy will occur through other means as well. Improvements to services, facilities and the public realm (for example, by undertaking the boulevard planting) will influence the likelihood of successful implementation of the strategy.
108
We have stated earlier that, as a matter of principle, we do not consider that arguments about the suitability of the site to meet policy objectives, either in the short or long term, should be used as a reason to reject policy or decide not to apply it. That is what Mr Papaleo is inviting the Tribunal to do in advancing this evidence. If time proves him right, it will be up to the council in its role as planning authority to take action to modify its policies, but there is no reason to refuse to apply them at the moment.
109
We consider that implementation of the Doncaster Hill Strategy will be influenced by the resolve of the responsible authority to reject proposals that do not accord with the strategy. By doing this it will establish expectations in the market place that certain options are not available and send a clear message to the market about the strength of policy in this location. It will establish a degree of certainty about the planning directions for this activity centre, which the development industry and landowners claim to want.
110
We agree with the comments in the Mitcham Towers case, which were quoted by Mr Gobbo, that major development decisions are likely to be in the hands of private sector and that no structure plan can force development opportunities to be taken up. However, as we have noted earlier, establishing some certainty about what will or will not be accepted within a policy framework can have the effect of challenging the development industry to think differently about what is 'feasible'.
111
The prominence of the site will make a non-conforming development particularly noticeable and this in turn is likely to send the wrong sort of message to other sectors of the development industry about the status of the Doncaster Hill Strategy and the likelihood of its long term implementation. Indirectly, approval of this proposal would also send the wrong sort of messages about Melbourne 2030 and the future of structure planning for activity centres elsewhere.
112
At a broader, strategic planning level, approval of a development such as this, which is so contrary to the preferred future character for this area and the structure planning which has been undertaken, casts doubt on the very notion of integrated decision making and planning for sustainable development referred to in clause 11 of the planning scheme.
113
We accept the evidence of Mr Haratsis that the loss of key sites due to underdevelopment will impact on the ability to achieve the required critical mass of residential population at Doncaster Hill and its ability to meet the community's future housing needs. We accept his view that this may in turn have a domino effect on future retail and commercial investment in the area, compromising the ability of Doncaster Hill to achieve the transformation necessary to create both a sense of place envisaged by the strategy and the functionality inherent in a sustainable urban village.
114
We do not accept the argument put by Mr Gobbo that, in the context of the overall scale of the population ultimately envisaged for Doncaster Hill of 8,000 residents, the loss of this site for residential use is inconsequential and will not affect the ultimate achievement of the vision for Doncaster Hill. Based on the planning permit approved for this site in 2002, which included 132 apartments, it was expected this site would provide homes for approximately 378 residents.[6] This represents 4.73% of the projected population for Doncaster Hill. We do not necessarily consider this percentage to be inconsequential. If it was the only site that was to be taken out of the equation, the figure might not be significant. But the Doncaster Hill Activity Centre is not a large area and the cumulative effect of removing even a few key sites would quite quickly have an impact on the ability of the centre to meet the required critical mass referred to by Mr Haratsis.
115
Mr Haratsis based his argument on the impact which this proposal would have on the residential component of the Doncaster Hill Strategy. Whilst we consider that the residential component of the Doncaster Hill Strategy is important, the commercial and retail component is equally important in implementing the objective of a sustainable urban village. There is no reason why a building on this site could not be primarily commercial rather than residential and still meet the policy objectives of the planning scheme. The important point is that we consider any development should reflect the urban form (including approximate height of 36 metres) identified in the planning scheme and be mixed use, i.e. capable of accommodating multiple uses, especially the type of uses identified in the MSS.
116
If the arguments advanced in favour of this proposal were accepted and a permit was granted, we see no reason why similar arguments should not succeed in respect of other sites. There are other major proposals currently on hold due to the downturn in the property market and doubtless there are other developers looking for a short term solution. Further departure from the policy would undermine the whole urban design concept for Doncaster Hill and the cumulative impact on loss of population and floor space would have an effect on the critical mass required to establish the sustainability of Doncaster Hill. For these reasons we consider that approval of this proposal would create an undesirable precedent and send the wrong message to the market about the future of policy for Doncaster Hill and the development opportunities available.
117
It was submitted that the proposal will achieve a better outcome than leaving the site in its present condition. We disagree. The site in its current form is not a vacant, derelict site, as was implied. It contains a substantial development which, until recently, was used for a car sales showroom and service centre by Holden. There is no reason why it cannot continue to be used for this purpose. Nor is there any reason why the existing development should not be upgraded as an interim measure. However, an upgrade is different to a complete redevelopment.
118
If the site remains in its current state until the next property cycle reinvigorates further development at Doncaster Hill, we do not consider this is a problem in terms of the long term strategic planning for this activity centre. As noted earlier, underutilized sites represent 'opportunities'. We agree with the evidence of Mr Milner that there is a need -
...to send a strong and consistent message to the development community that the long term implementation of the Doncaster Hill vision is to be taken seriously, that development must be consistent with the built form vision for this area, and that the short-term risks of a vacant site should not drive the type and form of development in Doncaster Hill.
119
In this case we consider that the policies relating to Doncaster Hill in the Manningham Planning Scheme are relevant, they make sense, there are no competing polices that need to be balanced, and there is no overriding community interest that would warrant a different outcome. We have concluded that this proposal is contrary to the objectives of the Doncaster Hill Strategy contained in the Manningham Planning Scheme and the built form objectives of DDO6 and therefore cannot be supported.
120
The proposal cannot be considered as an interim development. It represents a significant investment of $6.5 million in development costs and is intended to cater for the long term needs of the applicant. It will establish the Mercedes Benz dealership in the central core of the Doncaster Hill Activity Centre and serve to consolidate this location as a motor vehicle sales centre. Whilst in itself this is not opposed, if it is to occur, it should only be in the context of a development that is consistent with the built form objectives and the broader development vision of Doncaster Hill as a high intensity, mixed use area. It is therefore not appropriate to contemplate issuing a permit for a limited time, and nor was there any suggestion that this would be acceptable.
121
Because of our findings and conclusions on the issue of policy we have not found it necessary to consider the details of the proposal in terms of traffic, access, parking or whether the building meets the ESD objectives in the planning scheme.
122
Our decision is that no permit should issue.
[4] Manningham Planning Scheme Clause 21.21-1
[5] Manningham Planning Scheme Amendment C33 Panel Report (October 2003) page 79.
[6] 132 apartments multiplied by the current average household size of 2.87 persons per household.
Doncaster Road Property Partnership
Manningham CC [2004] VCAT 2445