1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by:
   • Substituting for the permit application plan, the amended subdivision layout plan Drawing Reference SK 01prepared by Breese Pitt Dixon Pty Ltd dated 09/05/17.
   • Amending the permit application to a two lot subdivision.
2. In application P1574/2016 the decision of the responsible authority is affirmed.

1. In planning permit application PlnA00589/15 no permit is granted.

Ms Louise Hicks, barrister instructed by Prentice Brown Legal Group Pty Ltd

Mr Neil Cooney, town planner from Planning Appeals Pty Ltd

Subdivision of the land at 345S Berwick-Cranbourne Road, Clyde North into two (2) lots each with an area of 852.5 square metres and each with a 0.1 metre tree reserve along the frontage to the Berwick-Cranbourne Road.

Application under section 77 of the Planning and Environment Act 1987 - to review a refusal to grant a permit.

Urban Growth Zone Schedule 2 - Cranbourne East Precinct Structure Plan (UGZ2).

Development Contributions Plan Overlay Schedule 10 - Cranbourne East Precinct Structure Plan Development Contributions Plan (DCPO10).

Clause 52.29 - to subdivide land adjacent to a Road Zone Category 1 (RDZ1).

The site is described as 345S Berwick-Cranbourne Road, Clyde North (Lot B PS643371B). It is located between the Berwick-Cranbourne Road to the east and Barossa Drive to the west. The site has a maximum length on the western boundary of approximately 160 metres and is narrow with a width of approximately 11 metres for the majority of its length, narrowing to 5 metres at its southern boundary. The site has an overall area of 1705 square metres.

The site contains sporadic vegetation and is otherwise vacant. Land on the western side of Barossa Drive has been developed for residential housing. Land to the north and south of the site is undeveloped land.

1. The review applicant proposes to subdivide land at 345S Berwick-Cranbourne Road, Clyde North (the site). Initially, application was made with Casey City Council (Council) for a five (5) lot subdivision of the site, which was later amended to six (6) lots. Council determined to refuse the permit application. The review applicant has requested the Tribunal to review Council's decision and in doing so, has sought to amend the application to a two (2) lot subdivision of the site (I have agreed to amend the application with the consent of the parties).
2. One of Council's grounds of refusal relate to whether the proposed subdivision is generally in accordance with the Cranbourne East Precinct Structure Plan (Cranbourne East PSP) that applies to the site and surrounding area.
3. At the commencement of the hearing, it became clear that the nature of the matter before me had raised a jurisdictional issue regarding whether a permit can be considered for the proposed subdivision. Both parties requested me to focus the hearing and my deliberations on the jurisdictional elements of the proposal rather than on the merits in order to determine the future conduct of the proceeding. I agreed with this approach. I have proceeded on the basis of considering and determining the jurisdictional issue regarding the proposed subdivision and its relationship with the permit requirements for subdivision under the Urban Growth Zone and the provisions and requirements of the Cranbourne East PSP and the issue of 'general accordance with' as a question of fact.
4. Accordingly, the matter proceeded on the basis of determining the following question:
   • Is the proposed subdivision generally in accordance with and compliant with the requirements of the Cranbourne East Precinct Structure Plan?
5. If the answer to this question is yes, then the matter would be adjourned for a further hearing to consider the merits of the proposed subdivision. If the answer is no, then no permit can be granted on the basis that there is no jurisdiction to determine the matter.

IS THE PROPOSED SUBDIVISION GENERALLY IN ACCORDANCE WITH AND COMPLIANT WITH THE REQUIREMENTS OF THE CRANBOURNE EAST PRECINCT STRUCTURE PLAN?

1. The site is a narrow strip of land sandwiched between the Berwick-Cranbourne Road and Barossa Drive located in Clyde North. The site is in the Urban Growth Zone (UGZ). It is subject to Part B of the UGZ provisions as a precinct structure plan applies. Clause 37.07-10 of the UGZ is relevant to proposals for subdivision of land where a precinct structure plan applies and states:

A permit is required to subdivide land. Any requirement in the schedule to this zone or the precinct structure plan must be met.

• Be generally in accordance with the precinct structure plan applying to the land.
• Include any conditions or requirements specified in the schedule to this zone or the precinct structure plan.

1. In addition, Clause 37.07-14 sets out the decision guidelines that a responsible authority must consider as appropriate before deciding on an application to subdivide land, which includes the following:

The precinct structure plan applying to the land, including the vision and objectives of the precinct structure plan.

1. The site is an area of land that is within the Cranbourne East PSP. Consideration of the Tribunal's jurisdiction in this matter is linked with what the Cranbourne East PSP says about the site.
2. The Cranbourne East PSP is dated May 2010 and was prepared by the then Growth Areas Authority in conjunction with Council, government agencies, service authorities and major stakeholders to guide future urban development of the land in Cranbourne East (part of the Clyde growth area). It describes how the land is expected to be developed and how and where services are planned to support development. I note the role of the Cranbourne East PSP includes, amongst other matters, details of the form and conditions that must be met by future land use and development and provides developers, investors and local communities with certainty about future development.[2]
3. Under the Schedule to Clause 81.01 of the Casey Planning Scheme, the Cranbourne East PSP is an incorporated document under section 6(2)(j) of the Planning and Environment Act 1987 and therefore forms part of the decision making apparatus of the planning scheme.[3] Accordingly, it has weight with respect to decision making under the planning scheme.

1. The site was created as part of a previous subdivision of land at 345 and 355 Berwick-Cranbourne Road, Clyde North approved under Planning Permit No. P719/10 issued on 18 July 2011. I would acknowledge that in granting this permit, consideration would have been given to the fact that the proposed subdivision was considered, at the time, to have been, generally in accordance with the Cranbourne East PSP.
2. Condition 2(c) of Planning Permit No. P719/10 provided that the plans submitted for certification show:

Any land required to be set aside for the purpose for road widening in accordance with any VicRoads conditions within this permit.

1. Condition 42 was included at the request of VicRoads and stated:

At no cost to VicRoads the developer shall engage a licensed surveyor and prepare a Plan of Subdivision showing the 11 metre wide allocation of land along the Berwick-Cranbourne Road frontage of the site as a separate lot and have the Plan of Subdivision forwarded to VicRoads for approval.

1. The endorsed plan for the permit showed the site as an 11 metre wide strip of land alongside the Berwick-Cranbourne Road frontage and identified as 11 metre Road Widening. The subdivision has now been completed and the 11 metre strip of land is now formally identified as Lot B on PS643371.
2. Council considered that, at the time of the subdivision, the site was to be set aside to accommodate the future widening of part of the Berwick-Cranbourne Road. The 2011 permit includes evidence of this fact by including reference to road widening in both the permit conditions and endorsed plan. This is further supported by the fact that when the current permit application was lodged, it was done so, on the basis of triggering a response from VicRoads with respect to the acquisition of the site for widening of this section of the Berwick-Cranbourne Road.
3. The planning report supporting the permit application clearly refers to this aim where it was stated that the permit application was being made to subdivide the land (then into five lots), in order to initiate the acquisition process by VicRoads, given the Berwick-Cranbourne Road is designated in the RDZ1 under the control of VicRoads. The understanding being that, achieving planning approval of the proposed subdivision would be highly unlikely and the application being a means for expediting the land acquisition process.
4. However, when the permit application was referred to VicRoads, its response was to offer conditional support to the proposed subdivision (including the amended two lot subdivision) subject to the following condition that:

The plan of subdivision shall be amended to include a tree reserve width, to be vested in the City of Casey that will extend along the lots abutting Berwick-Cranbourne Road to the satisfaction of the Responsible Authority.

1. Following this response, the review applicant has sought clarification from VicRoads as to whether the site is now no longer required for the purposes of road widening. It appears through the various correspondence between the review applicant and VicRoads, that the site may no longer be required for road widening purposes. Despite this, Council refused the permit application on the basis that the proposed subdivision is not generally in accordance with, or meets the requirements of, the Cranbourne East PSP.

The general accordance principles and the position of parties

1. The approach of the Tribunal in assessing 'general accordance' has been distilled from a consistent line of case law.[4] The principles include:
   • General accordance is a question of fact to be determined in the circumstances of each case. The term itself contemplates some flexibility of application.
   • For a proposed development to be generally in accordance with the relevant plan, it need not be identical to that described in the incorporated precinct structure plan.
   • The less detail and precision there is in the primary document, the more flexibility can be accorded to the term. The converse may also apply.
   • It is appropriate to consider the incorporated precinct structure plan as a whole when making this assessment, including its language and intent. The assessment should not involve a 'spot the difference examination' rather, it is question of whether the departures are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the precinct structure plan.
2. I accept that these are appropriate considerations in this proceeding when giving effect to the provisions of the Cranbourne East PSP.
3. The review applicant considers the Cranbourne East PSP is not clear in designating that the land is required for road widening. The Cranbourne East PSP contains mapping (Plan 6) showing some unscaled shading and a table (Table 4) setting out a percentage of various specific parcels of land within the PSP area for a land budget that includes reference to a 6 lane arterial road/widening.
4. Ms Hicks argued that this does not amount to identification or designation of a use of the site differently to the underlying zoning, which under Table 1 to Clause 2.1 of Schedule 2 to the UGZ relating to applied zone provisions, is the General Residential Zone (GRZ), and which has been applied and implemented for surrounding land uses. She submitted this is no more than a general indication of what might occur.

What do the precinct structure plan and development contributions plan say?

1. I have considered both the Cranbourne East PSP and Cranbourne East Development Contributions Plan (Cranbourne East DCP) as a whole in reaching my findings of fact in this matter. I note the Cranbourne East PSP includes a glossary which defines a precinct structure plan as:

A statutory document that describes how a precinct or series of sites within a growth area will be developed over time. A precinct structure plan sets out the broad environmental, social and economic parameters for the use and development of land within the precinct.

1. The Cranbourne East PSP sets the vision for how land should be developed and the objectives to be achieved. It also seeks to provide certainty about future development. Ms Hicks however argues that the level of intent of the Cranbourne East PSP is far from clear for this site. She considered this is a reflection of the age of the Cranbourne East PSP, which was an early version of precinct structure planning compared to later versions, such as the Clyde Creek Precinct Structure Plan, where land use designations, particularly for road widening are more clearly articulated primarily through notating where the Public Acquisition Overlay (PAO) is to be applied.[5]
2. In terms of implementation, the Cranbourne East PSP refers, amongst other planning tools, to the UGZ and to proponents developing land generally in accordance with the PSP.
3. Under section 2.2.3 - Transport and Movement, the Cranbourne East PSP makes reference to the arterial road system including reference to the Berwick-Cranbourne Road and alludes to the matter of planned road upgrades and duplication stating:

The existing arterial road system is generally based on the one mile grid (1.6km). This is defined by the South Gippsland Highway, Thompsons Road, Linsell Boulevard, Berwick-Cranbourne Road, Narre Warren- Cranbourne Road and Clyde-Five Ways Road. These roads are planned to be progressively upgraded and duplicated as traffic volumes increase over time (refer Plan 3).

1. Plan 5 shows future urban structure and notably includes an unshaded splayed intersection of the Berwick-Cranbourne Road that runs north along a portion of the frontage of the area of land that includes the site as part of an arterial road. The unshaded area of the splay is somewhat, unfortunately, overwhelmed by other shadings associated with depictions of both the Precinct Structure Plan area boundary and the then Urban Growth Boundary.
2. Moving to Plan 6 relating to land budget it becomes clear that the site is included in dark shading that depicts it in the plan legend as Arterial Road - 6 lane. It is clear to me that the issue with regards to uncertainty over what land use designation is applicable to the site is generated by the fact that the plans in the Cranbourne East PSP are of a large scale whereas, the size of the site, being a narrow piece of land, creates difficulties in easily identifying the site. The addition of other multiple shadings and cartographic depictions in a linear form combine to make interpretation of the plans challenging.
3. Despite these challenges, however, the plans can be read, when done so carefully. The other mechanism contained in the Cranbourne East PSP that assists with clarity as to land use designation of the site are the land budgets in Table 4 relating to various specific parcels of land of which the site once formed a part thereof before it was subdivided. Land Budget Table is defined in the glossary of the Cranbourne East PSP as:

A table setting out the total precinct area, net developable area and constituent land uses proposed within the precinct.

1. The reference to setting out constituent land uses is of assistance to me in that, the land budget in Table 4, applicable to those parcels of land of which the site originally formed a part, identifies a total area of 0.17 hectares out of a total original land area of 2.42 hectares of land, thus leaving 2.25 hectares of the original land area available for residential development. This area is referred to as the Net Developable Area which is defined in the glossary of the Cranbourne East PSP as:

Total amount of land within the precinct that is made available for development of housing and employment buildings, including lots, local and connector streets. Total precinct area minus community facilities, schools and educational facilities and open space, arterial roads and encumbered land. Small local parks defined at subdivision stage are included in net developable area. Net Developable Area may be expressed in terms of hectare units (i.e. Net Developable Hectare ("NDHa")).

1. I note that the above definition excludes land associated with arterial roads from being included in calculations for land available for residential development.
2. With the above interrogation of the Cranbourne East PSP, it is clear to me, that it does designate what the land use intention is for the site. Admittedly, it requires careful viewing of the plans in conjunction with the land use budgets for the area of land that once included the site, prior to its creation from subdivision in 2011. However, it remains the fact that the Cranbourne East PSP does identify the site as an area to be used for the purposes of a 6 lane arterial road.
3. I concur with Council in this regard and do not consider that matters of reading into what the Cranbourne East PSP states with respect to what this site is to be used for is in any doubt and not conflated with what actions have occurred from the Cranbourne East PSP itself. On the contrary, it could well be concluded, that what action has occurred since the approval of the Cranbourne East PSP is evidence of what is the intended use of the site.
4. On this point alone, I find that the proposal for a subdivision of the site is not generally in accordance with what the Cranbourne East PSP shows or intends for this site. Accordingly, I find that on the basis of the requirements of Clause 37.07-10 of the UGZ, a permit cannot be granted for the proposed subdivision.
5. Regarding the Cranbourne East DCP, I find the lack of reference to the site being required or identified for road widening does not assist to overcome my earlier findings regarding the PSP. The Cranbourne East DCP merely refers to all other land for the ultimate road reserve of the Berwick-Cranbourne Road that are not identified in the Cranbourne East DCP for specific works being funded from VicRoads resources. I do not consider the lack of reference to what role the site plays in the ultimate road reserve of the Berwick-Cranbourne DCP to reveal any guidance either way with respect to whether the proposed subdivision is generally in accordance with the Cranbourne East PSP or not. These references are merely associated with funding implementation of works, which in this case are at the mercy or otherwise of VicRoads.

Are requirements of the precinct structure plan met?

1. Having made the above finding, I have had regard to the other argument of Council, that the proposed subdivision does not satisfy Clause 37.07-10 of the UGZ by failing to meet requirements in the Cranbourne East PSP.
2. Mr Cooney went to some lengths to describe how requirements specified in the Cranbourne East PSP are to be implemented. He drew my attention to section 4.0 which describes how planning and design guidelines are to be met differentiating between those guidelines that must be met and those that should be met and that guidelines that must be met are mandatory with no alternative design responses considered. He drew my attention to Member Deidun's comment in Keymore Pty Ltd v Cardinia SC [2016] VCAT 603 that the combination of the incorporated status of the precinct structure plan and the provisions of Clause 37.07-10 of the UGZ provides sufficient context to conclude that the requirements which are identified as 'must be met' are indeed mandatory requirements.
3. Under section 4.6.3 relating to Road and Street Cross Sections, Mr Cooney submitted the following mandatory provisions are not met by the proposed subdivision:

The following planning and design guidelines must be met to the satisfaction of the responsible authority.

• Lots must be designed to address the road network to the satisfaction of the Responsible Authority, and
• In accordance with the Casey Arterial Road Tree Strategy (or as amended), a tree reserve must be provided to any arterial road where an internal loop road (or service road) is not provided.

1. Mr Cooney argued that the proposal fails because it does not provide either an internal loop road or a tree reserve between the proposed lots and the arterial road (Berwick-Cranbourne Road) of a width as required by the Cranbourne East PSP.
2. He referred to Council's Casey Arterial Road Tree Strategy (CARTS). CARTS is a strategy that seeks to create recognisable and unifying landscape treatments along the road system in the municipality. It was adopted by Council in 2003 and referenced in the Cranbourne East PSP as described above. CARTS shows various tree reserve widths of 12 or 6 metres. Mr Cooney demonstrated that other subdivisions along the Berwick-Cranbourne Road (notably around the intersection with Selandra Boulevard) had provided either an internal loop road or a tree reserve in the absence of a loop road. He submitted that the proposal does not provide these elements with sufficient width as required either by CARTS or the PSP.
3. As highlighted by Ms Hicks, consideration of these arguments begins to risk conflating jurisdiction issues with merits issues. This is due to the requirements of the PSP drawing into consideration design elements of the proposed subdivision.
4. I acknowledge, however, that drafting of the guidelines relating to Road and Street Cross Sections is somewhat confusing with reference to the mandatory nature of the guidelines, yet providing for compliance to be met to the satisfaction of the responsible authority. It is also confusing to differentiate between the cross sections contained in the PSP, which are discretionary and those contained in the CARTS, which have the mandatory link to them under the PSP.
5. It appears that the general outcome sought under the Cranbourne East PSP for new residential lots where they adjoin arterial roads is for a separation to be provided consisting of either an internal road or a reserve that can be landscaped (with trees). Such separation would be greater than the 0.1 metres tree reserve proposed by the subdivision. On this basis, it would appear that the mandatory guideline of the Cranbourne East PSP as a requirement of the UGZ for subdivision is not met.
6. Irrespective of the above, I find that such considerations are somewhat secondary given my initial finding regarding the issue of general accordance.

1. Regarding the intentions or otherwise of VicRoads as to whether they now no longer require the site for future road widening purposes. I concur with Mr Cooney that the intentions of VicRoads are somewhat irrelevant when considering the intention of the planning tools in terms of whether the proposed subdivision is, or is not, generally in accordance with the Cranbourne East PSP.
2. I also agree with Mr Cooney when he submitted that, if VicRoads do not now require the site for road widening, then the correct route to resolve the future of the site in a strategic sense is to amend the Cranbourne East PSP. Due to the status of the Cranbourne East PSP as an incorporated document an amendment to the planning scheme would be required. This may be a costly and time consuming business. However, it would be a process that would have the benefit of assessing what should be the most appropriate future strategic outcome for the site in relation to its physical and planning context.

1. For the above reasons I affirm the decision of Council and a permit is not issued. The proposed subdivision of the site is not generally in accordance with the Cranbourne East PSP. Pursuant to Clause 37.07-10 of the Urban Growth Zone of the Casey Planning Scheme there is no jurisdiction to grant a permit.

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

[3] The Cranbourne East PSP was incorporated into the Casey Planning Scheme as part of Amendment C119 on 21 May 2010.

[4] Relevant cases include Canet v Brimbank CC [2003] VCAT 13; Skerdero Pty Ltd v Cardinia SC [2014] VCAT 1334; Keymore Pty Ltd v Cardinia SC [2016] VCAT 603 and TAG-Doreen Pty Ltd v Whittlesea CC [2016] VCAT 1705.

[5] The Clyde Cree Precinct Structure Plan is dated 2014 (amended 2015) and covers land on the eastern side of the Berwick-Cranbourne Road, opposite the site.