1. The decision of the Responsible Authority is affirmed.
2. In permit application 005.2012.00000101.001 no permit is granted.

The land has a frontage of 66.39m to Benetook Avenue, a depth of 304.77m and an area of 2.023 hectares. It contains a brick veneer single storey house and shed (approved in 2000) close to Benetook Avenue. The balance of the land is vacant.

To subdivide the land into two lots. Lot 1 has an area of 4,000sqm with a Benetook Avenue frontage of 36.7m and contains the existing house and shed. Lot 2 has an area of 1.623ha in a battleaxe shape with a Benetook Avenue frontage of 29.69m that includes an 8m wide carriageway easement in favour of Lot 1.

Section 77 Planning and Environment Act 1987

Design and Development Overlay Schedule 9 - Benetook Avenue Precinct (DDO9)

Public Acquisition Overlay PAO1 - Road Widening (PAO1)

Development Contributions Plan Overlay Schedule 1 - Development Contributions Plan - Infrastructure Works (DCPO1)

Development Contributions Plan Overlay Schedule 2 - Development Contributions Plan - Infrastructure Works (DCPO2)

Development Contributions Plan Overlay Schedule 3 - Development Contributions Plan - Infrastructure Works (DCPO3)

Clause 52.29 To subdivide land adjacent to a road in a Road Zone Category 1 (Benetook Avenue) and adjacent to land in a PAO where the purpose of acquisition is for a Category 1 road.

1. This is an application by Mr Freeman to review the decision by Mildura Rural City Council ('the Council') to refuse to grant a permit for a two lot subdivision of the land at 711 Benetook Avenue, Mildura.
2. The permit application was lodged with the Council in April 2012. The Council requested further information and expressed the view that the size of the proposed lots was contrary to the overlay control affecting the land. The Council subsequently determined under delegation in October 2012 to refuse the proposal without any public notification. The two grounds of refusal are:
   1. The proposed subdivision contravenes Schedule 9 to the Design and Development Overlay which states "existing lots in excess of 3 hectares may be subdivided into smaller allotments.
   2. The proposal will result in an allotment which would result in a development that is contrary to the design guidelines of the overlay by setback, landscaping and access requirements.

1. Over the last decade, the Council has undertaken extensive strategic work to prepare for the future growth in the retail and industrial sectors in Mildura and surrounding township areas, such as Irymple. This has culminated in specific zones and overlay controls being applied to various areas of land to guide their future development and use in accordance with planning policies that articulate the strategic vision achieved through this extensive strategic work. The area of Benetook Avenue surrounding this site is intended to be developed as an extension to the existing Mildura industrial estate. The planning scheme states this will reinforce this area as the prime light industrial and associated service commercial hub of the region[2]. Benetook Avenue will also form part of the heavy vehicle bypass/ring road around Mildura[3]. The specific zones and overlay controls came into effect in the planning scheme in 2008; and they need to be given sufficient opportunity to be realised. In the last 5 years, it appears there has been minimal development proposed in Benetook Avenue. However, this is starting to change as the Council advised this application and one other are currently before the Tribunal for determination; and one planning application is also being processed by the Council.
2. Hence, it appears it is now time for Council and permit applicants to seek to achieve the vision and urban design outcomes sought for this new industrial precinct along Benetook Avenue as outlined in the planning policies and controls in the planning scheme. For reasons that I will come to, I am not persuaded this proposal provides an acceptable response to the planning policies and controls and would, if approved, undermine the potential to achieve the outcome sought.

1. One of the Council's grounds of refusal was that the proposed lot sizes contravened DDO9. I agree with the Applicant's submission that there are no mandatory requirements in DDO9 preventing this application to subdivide land into lots of 0.4 and 1.6 hectares from being considered. The 'parent' DDO control requires a permit to subdivide land[4], and states that subdivision must occur in accordance with any lot size or other requirement specified in a schedule. However, it also states that a permit may be granted for a subdivision which is not in accordance with any lot size or other requirements "unless the schedule specifies otherwise". Whilst DDO9 includes some requirements relating to lot size, they are not mandatory requirements as the schedule does not specify this, and they can therefore be varied with a permit.
2. DDO9 contains no specific mention of the subdivision of land in its Design Objectives; rather there is an objective to implement the design and development guidelines for the Benetook Avenue Precinct in accordance with the Urban Design Guidelines - Mildura Irymple Urban Transition Area (April 2008) ('the Guidelines')[5].
3. Clause 3.0 of DDO9 contains numerous Design Guidelines that are set out under a number of subheadings, one of which is Subdivision and Site Layout. The first three guidelines under this heading are:
   • Existing lots in excess of 3 hectare may be subdivided into smaller allotments. Further subdivision of lots should result in a maximum of 2 frontages to Benetook Avenue.
   • Existing lots less than 1 hectare in area should be amalgamated with larger lots to accommodate new industrial forms.
   • Subdivision behind the primary lot frontage should be configured in a geometric/grid formation.
4. What is proposed here is to subdivide a 2 hectare lot into two lots of 0.4 and 1.6 hectares in a battle-axe arrangement. The above guidelines are silent about the subdivision of a 2 hectare lot, but it can be inferred from the second dot point that a 0.4 hectare lot is not encouraged as larger lots are sought, presumably to accommodate new industrial forms.
5. Clause 7 of DDO9 contains the Benetook Concept Plan (which is an extract from the Guidelines) that acknowledges subdivision sizes may vary. Nevertheless, it provides four different subdivision/building envelope layouts all based on an initial 4 hectare lot size. These layouts all accord with the geometric/grid formation referred to in the last dot point quoted above. The proposed battle-axe arrangement is not in accordance with these layouts for the following reasons:
   1. The concept layouts are based on (what appears to be) a 2 hectare minimum frontage to the street, whereas this proposal contains frontages for 1.6 and 0.4 hectare lots;
   2. The concept layouts show the two lot, four lot and 16 lot subdivision layouts all having two lots of equal size facing the street, whereas the frontages in this proposal are unequal at 36.7metres and 29.69 metres. This proposal also contains a carriageway easement width of 10 metres in the 29.69 metre frontage, which would further reduce the maximum building area at the front of Lot 2 to 10.69 metres.
6. Nevertheless, DDO9 contains no mandatory requirements for subdivision in the Benetook Avenue precinct and hence the acceptability of this proposed subdivision layout still needs to be considered.
7. Based on the submissions presented at the hearing, it appears that there are two factors that have influenced the proposed subdivision layout. The first is the Applicant's desire to separate the existing house from the balance of the land. The second is VicRoads' desire for the two lots to have a shared access point onto Benetook Avenue.

1. The existing property was created in 2000 when a larger four hectare lot was subdivided into two equal parts. The house was subsequently constructed on it and, now, the house and associated shed are the only buildings on the land.
2. Mr Freeman says the house is too new and valuable to be demolished, but its existence is adding to the value (cost) of the land so its separation from the balance of the land will likely make the balance more affordable for someone to buy and develop for an industrial use. He explained his client is under considerable financial stress and is being forced to sell by the bank.
3. During the hearing, the Council provided me with a lever arch file full of materials relating to the Guidelines and the planning scheme amendment that introduced DDO9 into the planning scheme. I have now read all of this documentation and find that there was no allowance or leeway given to the fact that there were some existing houses or small lots containing existing buildings along the Benetook Avenue frontage. The Independent Panel who considered the planning scheme amendment that forms the basis of the current planning policies and controls considered the strategic work together with an understanding of existing conditions including some comparative analyses of existing and proposed conditions. The Panel said:

... Although the development opportunities of a small number of properties may be affected by the provisions of the Schedule to the Design and Development Overlay, the Panel considers it is appropriate to maintain a generous and uniform building setback from this street to create an attractive landscaped setting for buildings. [6]

In relation to the few small and, in two or three cases, shallow lots fronting this road, the Panel appreciates the acquisition of a strip across their frontages for the purpose of road widening and the set back required by the Overlay Schedule, will limit and could even prevent redevelopment unless consolidated with an adjoining lot. The narrow frontage or lack of a frontage of some adjoining lots may be the catalyst for those owners to negotiate a mutually acceptable outcome. In any event the Panel does not support the reduction or waiving of the set back which, in its view, would result in an unsatisfactory ad-hoc planning outcome.

1. DDO9 and the Guidelines make no mention of existing buildings or that any allowance or variation to the Design Guidelines of DDO9 should be given to such buildings. During the processing of the application, the Council sought changes to the subdivision layout to incorporate DDO9's setback requirements, which are mandatory. This includes a requirement that buildings be setback a minimum of 3 metres from the side boundary. The requirement does not distinguish between existing or new buildings, hence these requirements must be met in this case for an existing residential building that is arguably not encouraged by the planning scheme policies to remain given the future industrial vision for this area. Further, the need to incorporate such requirements for an existing building in this case is contributing to the creation of a lot layout that is not in accordance with the concept layouts sought in clause 7 of DDO9 (as explained above in paragraph 9).
2. One of DDO9's Design Objectives is to create a high quality landscaped streetscape and industrial access along Benetook Avenue in a coordinated and consistent manner. This includes create landscaping, car parking and potentially an internal road network (in addition to the heavy vehicle bypass along Benetook Avenue). As such, a 35 metre setback is required for any buildings comprising the 10 metre PAO for the widening of Benetook Avenue and the 25 metre building setback of DDO9 within which there must be a minimum 10 metre deep landscape buffer. The proposed subdivision layout cannot provide for that because the existing house is setback only 22.5 metres. The Amendment C38 Panel concluded (as quoted above in paragraph 15) that reduction or waiving of the set back, in its view, would result in an unsatisfactory ad-hoc planning outcome. In a similar vein, I find the proposed subdivision has failed to achieve this important landscape and urban design outcome sought for this industrial precinct through DDO9.
3. Mr Freeman says the house has existing use rights and could remain as a house only for many decades into the future. Whilst this statement is correct and possible, I am not persuaded this fact alone is sufficient justification to allow a subdivision layout that is not in accordance with the concept layouts of DDO9. Further, the creation a small 0.4 hectare lot for what is now a prohibited land use is contrary to the purpose of the zone and the design objectives of DDO9. Whilst the house has existing use rights, further recognition of that through the creation of a lot layout that is contrary to the design objectives of DDO9 is not an orderly or proper planning outcome.
4. Some years ago, the Tribunal (constituted by Deputy President Gibson and myself) considered a proposal in the Doncaster Hill area where the Council had undertaken significant strategic planning work and implemented policies and planning controls to give effect to a particular built form and land use concept. The proposal was contrary to the built form and land use concept and an underdevelopment. We considered the economic implications of the individual needs or circumstance of an applicant for a proposal which is an underdevelopment and, whilst this subdivision may not be considered an underdevelopment per se, our findings are pertinent to the issues confronting the Applicant here:
   1. 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.
   2. 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.
   3. 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.
   4. 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.
   5. 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.
5. Whilst I appreciate the difficulties that the Applicant may be experiencing in selling the land with the house, I am not persuaded the existence of the house or the land value or cost associated with it should be drivers or factors of substance where the resultant lot layout compromises the strategic planning objectives sought to be achieved through the current planning controls, particularly IN3Z and DDO9. As such, I find the proposed lot layout that results in part through the desire to provide for the retention of the house is not an acceptable planning outcome.

1. VicRoads is seeking a single shared access point from both lots to Benetook Avenue. In the case of this proposed subdivision layout, a carriageway easement in favour of the two lots needs to be created that, in turn, means this proportion of the frontage cannot be built on. In the context of the proposed lot layout, this again results in a design that is not an acceptable planning outcome having regard to the applicable planning policies and controls. The Guidelines and the Concept Plan at the end of DDO9 do contemplate shared access onto Benetook Avenue, but it is in a geometric/grid formation with regular spaced frontages. This proposal does not achieve an acceptable design response to this urban design outcome that is sought.

1. Much strategic work has gone in to putting in place planning policies and controls to achieve an industrial precinct in Mildura that has a high quality urban design outcome. Now is the time for Council and permit applicants to seek to achieve the vision and urban design outcomes sought for this new industrial precinct along Benetook Avenue as outlined in the planning policies and controls in the planning scheme. For the reasons I have already explained, I am not persuaded this proposal achieves an acceptable planning outcome so the Council's decision is affirmed and no permit will issue.

[1] I have considered the submissions of all the parties and the documentation tendered by the parties. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Extract from the vision for Mildura at clause 21.03-1 (page 3) of the planning scheme.

[3] Extract from the vision for Mildura at clause 21.03-1 (page 1) of the planning scheme.

[5] Ms Collins submitted for the Council that this is an Incorporated document in the planning scheme, however after the hearing I reviewed the planning scheme provisions and only found it is a reference document to clause 21.06 of the MSS.

[6] Extract from page 4 of the Amendment C38 Panel Report January 2008

[7] Extract from Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445