[2005] VCAT 434

1

In Application for Review No. P2742/2004, the Development Plan (396500AG.dwg 25 August 2004 prepared by Bosco Jonson Pty Ltd) relating to Lot S3 Willowbank Road, Gisborne, is not adopted as a development plan for the purposes of Clause 43.04 of the Macedon Ranges Planning Scheme.

2

In Application for Review No. P1055/2004 no permit is to issue.

3

Costs reserved.

Mr J Cicero solicitor of Best Hooper solicitors. Evidence was called from:

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Mr P Kelly, ecologist.

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Mr G Tucker, traffic engineer.

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Mr G Rule, drainage engineer.

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Mr G Gattini, town planner.

Mr G Peake of counsel instructed by Maddocks lawyers. Evidence was called from:

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Mr R Milner, town planner.

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Mr J Yugovic, ecologist.

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Mr D Mitchell, drainage engineer.

Mr P King, Ms L Stone, Mr D Brick and Mr J Buttigieg in person and on behalf of a large number of other residents from whom authorities had been provided.

1 Two Applications are brought by GR8CO Investments Pty Ltd:

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Application for Review No. P1055/2004 is made under Section 79 of the Planning and Environment Act 1987 ("the Act") against the failure of the Macedon Ranges Council ("the Council") to determine permit application no. 2040093 within the prescribed time.

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Application for Review No. P2742/2004 is made under Section 149(1)(a) and (d) of the Act in relation to Council's failure to adopt a development plan.

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The first part records procedural matters arising during the Hearing.

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The second part sets out background information common to both Applications.

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The third and fourth parts set out our findings in relation to Application P2742/2004 and Application P1055/2004 respectively.

3 We record the following procedural matters and rulings arising during the course of the Hearing.

4 At the commencement of the Hearing, Mr King sought leave for persons he represented to be joined as a party to Application for Review No. 2742/2004. After hearing submissions from the parties, and with no objection being expressed by any party, the Tribunal ruled that Objectors who were party to Application for Review No. 1055/2004 would be joined into the proceedings relating to Application for Review No. P2742/2004 pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998.

5 At the commencement of the Hearing, Mr Cicero sought leave to amend permit application no. 2040093 to refer to the removal of native vegetation pursuant to Clause 52.17 of the Macedon Ranges Planning Scheme. There being no objection, we granted leave to amend the permit application as requested.

6 With the consent of the parties we undertook an unaccompanied inspection of the subject land, adjacent land, the creek corridor and Gisborne township on the morning of the second day of the Hearing.

7 An application for costs arising from previous Hearings relating to these proceedings was reserved by Deputy Presidential Gibson[1]. During the Hearing, when we asked whether the parties sought to address this matter in their submissions, it was requested that costs be reserved to be addressed at a future time. We agreed to do so and that is included in our order.

8 On the fifth day of the Hearing, we granted leave for a supplementary report by Mr Gattini to be filed and served by 31 January 2005. [That was subsequently done]. This was to assist the parties in relation to the material to be presented by the Applicant responding to the submissions by others and particularly Mr King who had indicated that Mr Brick was not able to attend on 22 February, this being the only date when all other persons could attend a final Hearing day.

9 We also indicated that if the parties were taken by surprise then they would be able to seek leave to address us further on such matters. In that regard, Mr Peake foreshadowed that he would wish to make short submissions in relation to two plans showing retarding basins tendered through Mr Rule's evidence. He agreed to file and serve a submission by 15 February 2005. Although that date for the submission to be filed and served was not met, at the resumed Hearing we heard from Mr Peake in relation to plans showing "Basin A" and Basin "C" prior to the continuation of Mr Cicero's submissions.

10 The review site is located on the south side of Willowbank Road, centrally positioned to the east of Mt Gisborne Road and west of Bradys Road. It has an area of 10.73 hectares. The frontage to Willowbank Road is some 221 metres and the lot's depth is around 483 metres. The land slopes down to both the north as well as to the east and to some extent to the west. A creek or drainage line extends along the eastern portion of the subject land, this being known as the eastern arm of Howey Creek. There are some mature eucalypts near to this area but otherwise there is only one other mature native tree on the land. There are two dams/springs off the creek-line, one close to the west side of the creek in the northern portion of the site and a second to the south-west of the land.

11 The review site abuts grazing land to its east (known as super-lot S4) and a residential estate that is under construction to its west (known as super-lot S2 or the Highbury Estate). It also abuts a lot to its north-west that fronts Willowbank Road.

12 The Highbury Estate is now under development with lots of around 2,000 square metres. Roads have been laid out and some houses erected. The Estate has no provision for through-road links to the review site. Based on the certified plan of subdivision, there is a retarding basin to the north-east of that development, abutting the review site. The west side of the Mt Gisborne Road is more intensively developed in part, with some lots in Wyralla Court and Carinya Drive being around 1,000 square metres although there are other lots at around 2,000 square metres. This area is recently developed with some vacant lots still evident.

13 Lots on the north side of Willowbank Road are around 12,000 square metres in area and the eastern arm of the Howey Creek continues through some of these lots further to the north, eventually joining with Jackson Creek close to the heart of the Gisborne township.

14 To the south, upslope of the review site, is a low density residential area; known as the Gisborne Rise Estate. Lots are around 6,000 square metres but there are some to 8,000 square metres. Five lots in the Estate directly abut the review site. A linear reserve of around 20 metres in width that is associated with the eastern arm of Howey Creek traverses the Estate and terminates at the review site.

15 Willowbank Road is a sealed two lane road with an open drain along its south side.

16 The review site is some 1.6 kilometres from the Gisborne town centre, and closer to some community and other facilities, such as a school.

17 The proposal set out in permit application no. 2040093 (396500AF.dwg 9 January 2004 prepared by Bosco Jonson Pty Ltd, "the subdivision plan") is the essentially the same as the concept shown in the development plan submitted by the Applicant dated 15 September 2004 and in particular plan no. 396500AG.dwg 25 August 2004 ("the Development Plan"). For the sake of brevity we summarise the key elements of the proposal included in the permit application and the submitted Development Plan. We refer to differences in the material filed with the permit application and that forms part of the Development Plan later.

18 The proposal comprises a subdivision of 58 residential lots. The lot sizes would range from 1,000 square metres to 2,100 square metres, with the average being around 1,200 square metres. The largest lots are to the rear, or south, of the review site. Five lots would have frontage to Willowbank Road while the remainder would be accessed by a road extending north-south accessed from Willowbank Road. Lot frontages are proposed to be around 24-29 metres wide. No building envelopes are shown.

19 Four courts would extend westwards off the north-south road. No road links are proposed to the west. A future connection is provided to the east at the south-east corner. An open space link is proposed off the northern-most court leading to a retarding basin at the north-east corner of the Highbury Estate. There is a second link to the creek corridor to the south.

20 The plans provide for a series of four retarding basins along the alignment of the existing creek (a variation of which was proposed by Mr Rule). The road would generally be to the west of that wetland area. The proposal would require some realignment of the creekline particularly at its northern end with the creation of the north-south road. At this point we understand that the creek would be within a pipe. There is no detail of landscaping.

21 We were advised at the Hearing that it is proposed to widen Willowbank Road in association with drainage works. The evidence of Mr Tucker was that this could occur within the existing road reservation.

22 The subject land is zoned Residential 1 under the provisions of the Macedon Ranges Planning Scheme ("the Scheme"). A permit is required to subdivide land. Decision guidelines include consideration of state and local planning policies and the requirements of Clause 56 must be met.

23 A Development Plan Overlay (Schedule 1 Gisborne/New Gisborne) applies to the land. It was introduced by Amendment C38 to the Scheme on 8 September 2004. Pursuant to the provisions of Clause 43.04-1:

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority.

s

Be generally in accordance with the development plan.

s

Include any conditions or requirements specified in a schedule to this overlay.

Except with the consent of the Responsible Authority, a Development Plan is required for each development cell as identified on the plan attached to this schedule. A single development plan for each development cell is preferred. Where this is not possible each development plan must identify linkages for access and servicing to adjoining developments. Where a development plan under preparation adjoins a lot with an approved development plan the development plan under preparation must correspond to the approved development plan, especially in regard to the coordination of linkages. Where the development plan is not for a whole cell, Council will consider whether the development is out of sequence. Council wishes to see development of these areas start adjacent to existing development and services, and proceed in stages from that point.

25 Some exceptions are set out, none of which are relevant to this proceeding.

26 Clause 3.0 sets out the requirements for a development plan as follows:

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A clear indication of all proposed land uses within the plan area.

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The proposed road layout pattern which:

o Provides convenient internal and external access for residents;

o Allows for the provision of public transport;

o Provides convenient and safe pedestrian and cycle networks with linkages to adjoining development and major destinations such as schools, shops, sports facilities;

o Provides accurately located road linkages to surrounding areas and corresponds to adjoining development plans.

o Provides a variety of lot sizes and densities across the development cell allowing for a variety of housing types and for other compatible land uses;

o Takes into consideration the topography of the land, particularly with regard to the provision of useable open space, site elements such as vegetation, waterways or other significant features, and physical infrastructure such as roads and reticulated services (water, sewer, drainage); and

o Allows for passive solar development.

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The proposed location of local open space which:-

o Is clearly visible and accessible to residents within the development area,

o Connected to existing or proposed open space areas,

o Is not flood effected or constrained, and

o Integrated with areas and corridors of habitat significance where possible.

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The location of any major infrastructure easements.

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The stages, if any, by which the development of the land is proposed to proceed, including a statement regarding the ability for each stage to be provided with all required infrastructure before certification of the plan of subdivision.

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The provision of, and timing of provision of, physical infrastructure; clearly demonstrating the ability to overcome before certification of a plan of subdivision any deficiency in any reticulated service or infrastructure item required by the proposed development.

The Development Plan must be informed by the following matters to the satisfaction of the responsible authority:

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A detailed site analysis of the natural, cultural and strategic context of the site.

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A land capability assessment which includes a discussion of the ability of the land to be serviced.

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A flora and fauna survey of the land.

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The location of major drainage lines, water features, proposed retarding basins and floodways.

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A stormwater management plan.

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A traffic management plan addressing the impact of the development on the arterial and local road network.

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An environmental audit that identifys (sic) any environmental hazards or contamination on the land and proposed treatment, if any, or a qualified statement indicating the absence of such hazards or contamination.

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The location and staging of community education, commercial, open space, and recreational facilities.

27 Clause 4.0 sets out the area-specific requirements for a development plan including:

The following issues specific to the individual development cells should be addressed in relevant development plans.

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Encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.

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Identify landscape options to soften impact on Mt Gisborne approach.

28 Cell 6 applies to an area of some 200 hectares extending west from the Calder Freeway. The area is bounded by Willowbank Road to the north, Mr Gisborne Road to the west and Brooking Road to the south, excluding the Gisborne Rise Estate. Cell 5 is generally located on the north side of Willowbank Road, opposite much of Cell 6.

29 Pursuant to Clause 52.17 a permit is required for the removal of native vegetation given that the size of the subject land is greater than 0.4 hectares. Decision guidelines are set out and include the goal of Net Gain expressed in Native Vegetation Management - A Framework for Action ("NVF"), the conservation and enhancement of the area, the role of the native vegetation and the need to retain native vegetation in specified circumstances.

30 A number of other Clauses are relevant to one or both Applications principally Clauses 11, 14.01, 14.02, 15.01, 15.02, 15.09, 15.10, 15.12, 16.01, 18.02, 18.09, 18.12, 19.01, 21.07, 22.02 (Townships) and in particular Clause 22.02-2 relating to Gisborne, and 65 (general decision guidelines and decision guidelines relating to subdivision). Several other policies apply to all land in the Shire including Clause 22.03 (Catchment Management and Water Quality Protection), Clause 22.05 (Environmental Management Guidelines) and Clause 22.06 (Vegetation Protection).

31 We were also referred to a range of reference documents including the Gisborne Residential Strategy, Shire of Gisborne, 1990 and the Gisborne Township Residential Review, Trevor Budge & Associates, 1993. There is also Statem_ent of Planning Policy No. 8 Macedon Ranges and Surrounds_ 1995. The Macedon Ranges Industrial/Residential Review, 1999[2] is referred to in relation to the Gisborne Rise Estate at Clause 22.02-2 but is not listed as a policy reference document. We understand from the submission by Mr King and Mr Brick that is was previously included in the list of policy reference documents at Clause 22.02-2 prior to the gazettal of Amendment C38 on 8 September 2004. We have not found it necessary to explore the basis for its removal (that was a matter raised in submissions).

32 The Gisborne Rise Estate is included in a Low Density Residential Zone and is the subject of a Design and Development Overlay (DDO 9 Jonathon Road Area Gisborne).

33 Land on the west side of Mt Gisborne Road, for example around Carinya Drive and Wyralla Court, is in a Residential 1 Zone and subject to a Design and Development Overlay (DDO 10). Further to the south is a Rural Living Zone with a minimum lot size of 40 hectares.

34 We have also had regard to Melbourne 2030.

35 Mr Peake advised that Amendment C39 to the Scheme commenced exhibition on 19 January 2005. It seeks, among a range of matters, to include a minimum lot size of 6,000 square metres into DDO9 and add the "Residential and Industrial Land Review"[3] as a policy reference document.

APPLICATION UNDER SECTION 149

36 Following an adjourned Hearing on 8 September 2004[4], the Applicant submitted the Development Plan (dated 15 September 2004 prepared by Bosco Jonson Pty Ltd) to the Council. By way of its Application under Section 149(1)(a) and (d) of the Act, the Applicant seeks an order that the Development Plan is satisfactory for the purposes of Clause 43.04 of the Scheme and a direction that the Responsible Authority adopt the Development Plan for the purposes of Clause 43.04. Council and local residents contend that the Plan is not satisfactory and should not be directed to be adopted.

37 Mr Peake submitted that the Tribunal must find whether the Development Plan as submitted is satisfactory as the Tribunal has no power to find the Plan to be satisfactory subject to specified modifications. Mr Cicero concurred with that interpretation. If we accept that, should the Tribunal wish variations to be made to the Development Plan, the Tribunal could make an interim determination allowing an opportunity for the Applicant to amend the Development Plan or find that the Development Plan is not satisfactory. We have not made a ruling on this point and we have accepted that interpretation for the purpose of this determination.

38 The key issues for our determination as to whether the submitted Development Plan is satisfactory are:

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are the requirements of Clause 43.04 and Schedule 1 met?

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is the Development Plan consistent with the strategic planning framework and direction for Gisborne?

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does the proposal result in an acceptable layout and design outcome taking into account environmental, physical and other considerations?

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is it premature to direct the Plan be adopted ahead of the completion of the strategic planning work now underway by the Council?

Are the Requirements of the DPO and Schedule 1 Met?

39 The matters required to be addressed by a development plan are set out at Clause 43.04 and Schedule 1 Gisborne/New Gisborne Subdivision.

40 The provisions of Clause 43.04 require, inter alia:

The development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages.

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The land to which the plan applies.

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The proposed use and development of each part of the land.

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Any other requirements specified for the plan in a schedule to this overlay. [Tribunal emphasis added]

41 It is common ground that the Development Plan before us meets the first two points, that is, it specifies the land to which the proposed Plan applies and the use and development of the land are shown in the Plan. It is in issue between the Council and Applicant as to whether the last point has been complied with. We note that the latter is a mandatory requirement - we must find that the other requirements as set out in Schedule 1 are met to then reach a view that the Development Plan is satisfactory although there remains discretion as to whether the Plan should be adopted.

42 We have set out the detailed provisions of Schedule 1 at paragraphs 24-27 of these reasons. It is common ground that a development plan can be prepared for part of a cell, as is situation before us, albeit that is not preferred based on the provisions of Clause 1.0 of the Schedule. There are two other tests in this part of the Clause relating to the consideration of a development plan for part of a cell - one where there is an approved development plan for adjoining land (which does not apply here) and the question of whether a proposal is out of sequence. We think that it is reasonable to conclude that there is a valid argument that the subdivision proposed would not be out of sequence, in so far as the Highbury Estate is under construction and the Mt Gisborne Estate exists. The lots to the north of Willowbank Road are much less intensively developed but reticulated sewerage is being provided to the general area and the proposed subdivision could readily link into that.

43 Thus, having met these requirements, we must consider how the submitted Development Plan addresses the required matters at Clause 3.0 and is informed by the matters set out in that part of the Schedule.

44 We start by considering the principle of what a Development Plan is seeking to achieve; what is its purpose and role?

45 In addition to the matters prescribed in the Scheme, as noted at the Hearing a VPP Practice Note describes the intended purposes of the Development Plan Overlay (and Incorporated Plan Overlay)[5]:

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

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to exempt a planning permit application from notice and review if it is generally in accordance with an approved plan.

Unlike most overlays, the IPO and DPO enable a plan to make provision for use as well as development. In drawing up a plan, it will almost always be necessary to think about relationships between future uses as well as future development. A plan that controls physical development without considering use may result in incompatible uses becoming established on adjacent sites.

47 In relation to the content of the Plan, the Practice Note states:

The requirements for plan content provide the basic minimum of issues that a plan can address. Plan content is not limited by the schedule unless the schedule specifically restricts what the plan can contain. A plan must meet the schedule requirements.

For the DPO, the flexible plan-approval mechanism supports the implementation of the plan in stages. Where a large area of land is subject to the DPO and the development process is anticipated to take a number of years, the preparation, implementation and review of the plan in stages will often be good practice. Stage 1 of the plan could enable the first phase of subdivision and development to go ahead while other areas are safeguarded. When Stage 1 is nearly complete, a Stage 2 plan can be prepared.

48 In the current case, there is an ability to prepare a development plan for parts of a cell but no requirement for staging within the cell per se.

49 The Practice Note observes that there are no statutory requirements as to the precise form of a Development Plan. It identifies matters that could or should be addressed.

50 The use of the Development Plan Overlay as a tool for the planning of small and large areas has been the subject of a number of Tribunal decisions[6]. The commentary makes observations about the benefits and issues that arise with the application and administration of the Overlay but all recognise its legitimacy. In Jocelyn Meadows, the Tribunal said[7]:

Development plans deal with many types of situations. They may guide the future subdivision of individual parcels of land in a single ownership or they may govern the strategic planning of large areas of a municipality in multiple ownership. As indicated below, we consider the use of development plans and the Development Plan Overlay in the latter instance has shortcomings, nevertheless it is a valid option available to planning authorities under the Victoria Planning Provisions. However, when the Tribunal is faced with an application to review a development plan, we consider it is necessary to have regard to the potential strategic implications of the outcomes of the decision. Will the decision affect the ability of the council as planning authority to achieve its strategic objectives, not just with respect to the parcel of land in question but for the area as a whole to which the development plan applies? If the answer is yes, we consider the Tribunal should be very cautious in rejecting or changing aspects of a development plan.

There are various shortcomings associated with the Development Plan Overlay when used in a context such as this. Whilst a development plan may be approved by the responsible authority and subsequently changed or amended without needing to go through the process of a planning scheme amendment, which would be the case with an incorporated plan, development plans can be challenged at the Tribunal. Where development plans apply to large areas of land in multiple ownerships, they may be challenged on more than one occasion or as they affect different parcels of land. There is always the risk that decisions made about individual applications will have wider implications for the efficacy of the plan as a whole...

51 The point relevant to the current case, which is against failure to adopt a plan for part of a cell, is that the Tribunal must be cognisant of the fact that a decision to adopt a development plan for a single parcel might have wider implications. It is, therefore, appropriate or essential for the Tribunal to consider what those implications could be as part of its deliberations.

52 In a decision tendered by Mr Peake His Honour Osborn J remarked as follows[8]:

I pass over the question of whether a single plan could generally be both a satisfactory development plan and a satisfactory plan of subdivision. It is plain they are intended to serve different functions and that despite the lack of third party rights the development plan might be expected to show matters beyond the subdivided land to a greater extent than is normal in a plan of subdivision. Conversely the plan of subdivision might normally be expected to descend to greater specificity. It is, however, unnecessary to decide this question in the circumstances of this case.

53 A development plan can, in principle, be developed for a single lot but a development plan would be expected to be different to a subdivision plan for a single, albeit large, lot. A notable expected difference, as His Honour observed, is the extent to which a development plan addresses matters beyond the land holding (whether or not the Overlay applies to a small or large area). That is, although a subdivision plan and development plan are required to be informed by and respond to their context[9], a development plan under DPO1 would be expected to include a broader or strategic emphasis in terms of links between that part of the cell that is proposed to be developed and other relevant land in terms of infrastructure such as the road network/hierarchy, pedestrian/cycle networks, reticulated services such as drainage, open space networks, staging and major easements.

54 We are satisfied that the Development Plan can be said to generally meet most of the technical requirements of Clause 43.04 and Schedule 1 if one simply uses that as a checklist. We have set out our views on that in more detail in the appendix to these reasons and it is evident that most points are covered in some way. The Development Plan in fact deals with some very detailed matters and we have been required to address more of the fine detail than we might have been expected if we were dealing with a development plan for 40 or 200 hectares. That primarily arises from the fact that the Development Plan is identical to the subdivision plan.

55 The information included in the Development Plan "package" is nearly entirely site specific or focussed on the attributes or planning of review site. That includes the biological features assessment by ERM Australia, the preliminary environmental site assessment by The Chadwick Group, the information prepared by WBCM relating to stormwater and the traffic report by GTA Consultants. There are references to surrounding land and the road network for example, but it is apparent that the material only goes so far as describing the proposed links with open space and roads. It gives no rationale for the location of links (such as the road to the east) or the likely useability of links (such as a pedestrian link to a retarding basin in the Highbury Estate). There is no strategic context or framework relating to the selection of lot sizes or to development in other parts of the cell or adjacent Cell 5. This seems to arise from the fact that the material in the Development Plan essentially replicates the material accompanying the subdivision plan, even though we acknowledge that the material was supplemented in a limited way once DPO1 was introduced and the previous Hearing was adjourned to allow the preparation of a development plan.

56 As discussed below, there are many aspects of the current proposal that may well be acceptable, or could be made so with revision and further work. However, as is evident from our considerations that follow, we are not satisfied that the requirements of Clause 43.04 have been met in so far as the proposal has given insufficient attention to its wider context.

57 Related to this, and importantly to our determination, we find that adoption of the Development Plan would have the potential to undermine the orderly planning of the wider area (that may not be the whole cell but would particularly include the land extending to Bradys Road). That is specifically an issue in relation to drainage/infrastructure but applies to other matters as well. For these reasons, we conclude that the Application under Section 149 should not be allowed. We will not direct the Responsible Authority to adopt the Development Plan.

Is the Plan Acceptable in terms of the Policy Directions for Gisborne?

58 Under this heading we address an issue that occupied a considerable amount of time at the Hearing - whether the Development Plan is consistent with the directions of the Scheme particularly in terms of the lot sizes and dwelling density.

59 The starting point is the current zoning of the land and existing policies in the Scheme. The review site is zoned for residential development and falls within the designated boundary for Gisborne. There are imperatives set out in the Scheme to contain the township and the review site has a role in assisting to accommodate future growth within the defined town parameters. There can, therefore, be no doubt that the review site is suitable for subdivision. The issue in contention is the density of lots and the relevant area to which the proposed subdivision should respond.

60 The Gisborne Structure plan at Clause 22.02 has an arrow pointing to the western boundary of the review site and eastern boundary of the Highbury Estate as "Infill - Serviced Potential for serviced residential infill development". There appears no marker to identify the eastern extremity of this area. Further to the east is an area identified for "Future Residential Outline Development Plan to be prepared".

61 The reference documents can be used to assist to clarify these aspects of the Structure Plan. The Gisborne Township Residential Review 1993 includes the review site in an Investigation Area (IA1) with the Gisborne Rise Estate, land now known as Highbury Estate and land to the west side of Mt Gisborne Road. Bradys Road was the eastern boundary of IA1 and Willowbank Road provided the northern boundary. It stated that there should be no further subdivision of IA1 "beyond that already permitted. Subdivision layout should be renegotiated if possible to reduce density and incorporate open space networks"[10]. Land to the east of Bradys Road was within an "Outline Development Plan Area" with an estimate lot yield of 630 as was land to the north of Willowbank Road with an estimate lot yield of 120. The Framework Plan stated that the focus of development is within the area shown on Map 4, which is to the east of Bradys Road and north of Willowbank Road, that is excluding the review site.

62 It is not necessary to go further back in history to detail other planning controls and documents that were referred to in submissions, suffice to say that there was an emphasis on relatively low density residential development with variations being contemplated through a development plan process. The Residential and Industrial Land Review is not a policy reference document that applies to the review site although it is proposed to be re-included via Amendment C39. It includes the subject land in a large area with lots on the north side of Willowbank Road and the west side of Mt Gisborne Rise as "2,000m2 min.". The Gisborne Rise Estate is shown as "6_,000m2 min_".

63 The most recently introduced Overlay area joins the review site with the area to the east of Bradys Road in Cell 6. It does not include the land that remains undeveloped to the west side of Mt Gisborne Road within that cell. The land to the north side of Willowbank Road is within a different cell with different outcomes specified. It seems that it was only through the recent DPO1 that the review site has been linked with the lots to the east of Bradys Road and before that time Bradys Road was the dividing line.

64 The proposal adopts lot sizes from 0.1 hectares - 0.21 hectares with most (86%) being below 0.17 hectares. There is nothing contained within the policies set out in the Scheme to suggest that this density and size of lots is too high or too low; the Scheme provides no specific guidance on this point. There is, however, the unusual policy at Clause 22.02 that "The location, form and design of new development in the township is to be consistent with the Policy Reference Documents". We say "unusual" because reference documents are intended to provide background information and a basis for understanding policies within the Scheme, not to be applied in the same way as a policy at Clause 22 that has been tested through an amendment or the provisions of an Overlay. Even though the policy seeks consistency with the documents stated that is not mandatory. It is, however, obvious that the proposed lots are not consistent with the reference documents which would seek a lower density outcome.

65 There is no development plan for the whole cell and therefore there is nothing else to assist to inform us as to the suitability of the proposed lot density from a policy perspective. In this context we can understand the benefit of proceeding through a proper strategic planning process to guide the future development of the remaining undeveloped land (including the review site) and presumably establish development parameters including in terms of the intensity of residential development, which may well be greater than suggested by the current reference documents.

66 The current Scheme policies emphasise achieving variation in lot sizes. We do not find that there is a well varied range in the proposal before us, as many are essentially the same in size and shape. However, the lots would vary from those found in the immediate area to the south (Mt Gisborne Estate) and to the west (an average of around 2,000 square metres in the Highbury Estate).

67 That leads to a brief consideration of the character of the area - a matter in dispute. If one was to give weight to the reference documents as "policy" then the proposal would not be consistent with the "preferred character". We have some difficulty with that approach for reasons we have set out.

68 In considering the existing pattern of lot sizes, we were referred to various descriptions of the relevant "character area" that should influence the outcome. We do not enter into a long discussion on this point - the area of influence is much greater than a typical small lot development and the issue is more complex than simply looking at the lot sizes in an area of influence as the review site and adjoining land have strategic significance to the achievement of various goals for the development of the Gisborne township. Having said that, we think that the land must be developed at a higher intensity than Mt Gisborne Rise, and potentially Highbury as well, given the zoning that applies, the availability of reticulated services, and the reference to the site as suitable for infill residential at Clause 22.02. On our reading, the Scheme policies place weight on the rural character of this township and that might mean, at times, spacious lots compared with what one might expect in metropolitan terms. However, as the Tribunal often states, respect for neighbourhood character does not mean replicating what exists and it may be possible to produce a proposal that includes smaller lots with "edges" that respond to existing spacious allotments that are to the south and west. These are the types of considerations that a development plan is designed to facilitate and guide with specified outcomes.

69 There are a range of detailed matters that we address under this heading including the environmental values of the land, drainage, lot configuration, open space provision, traffic and access, and pedestrian movement.

70 A key question is whether the ecological and environmental values of the land have been adequately catered for in the Development Plan. Recognising environmental features is a key part of the strategic planning consideration relevant to a development plan as well as a subdivision.

71 It is common ground between the parties that the area to the west of the creek/drainage line is categorised as Plains Grassy Woodland and not of environmental significance. While there is a spring to the south-west of the review site, at the Hearing submissions referred to Howey Creek and its conservation significance. That raises other questions about its future role as a waterway or drainage line, whether it has ecological values that are adequately addressed by the Development Plan and whether it can be modified to provide a water retardation function for the subject land.

72 The relevant provisions of the Scheme include Clauses 15.01, 15.09 and 22.01 that place an emphasis on the protection of natural resources including catchments and waterways. Clause 15.01-2 encourages:

The retention of natural drainage corridors with vegetated buffer zones at least 30m wide along waterways to maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, to minimise erosion of stream banks and verges and to reduce polluted surface runoff from adjacent land uses.

73 The Council and local residents placed significant emphasis on the creek and its ecology with the aim of protecting what is considered by them to be a significant feature of the land with biological and ecological values that should be preserved and enhanced. The Council relied on the evidence of Dr Yugovic in support of its position. Conversely, the submission by the Applicant was that the environmental significance of the land is over-stated based on the evidence of Mr Kelly, given (inter alia) the modified state and poor condition, the poor quality of areas to which the creek is linked and the absence of any flora or fauna protected under state or federal legislation.

74 Aspects of the evidence are in conflict, notably the EVC classification, the condition of the creek area and the significance of the area in ecological terms. We prefer the technical assessment by Dr Yugovic in relation to the ecological values of the land. His assessment of the condition of the land concluded that land generally along the creek alignment is Creekline Grassy Woodland, an endangered EVC. He also identified a rare species the Austral Cranesbill toward the southern end of the site (a species we viewed on our inspection) and indicated that the land contains suitable habitat for the nationally significant growling grass frog. [He recommended a targeted survey be undertaken]. Dr Yugovic referred to the condition of this area as poor to medium and capable of rehabilitation and described the creek to the south of the review site, through the Gisborne Rise Estate, as "an environmental write-off".

75 In cross-examination, Mr Kelly said that Dr Yuogivic was "a better botanist" and he accepted that the species identified by Dr Yugovic would have been present. He disagreed with Dr Yugovic's identification of the land as within the Creekline Grassy Woodland classification or that the benchmark for that EVC had been met. Mr Kelly said that he had found it difficult to categorise the land into any EVC given its highly modified state and poor condition, other than one area toward the east of the site. He also noted that the time of the survey was not when plants were flowering and observations about frogs were based on daytime visits and not in the evening or night. Mr Kelly's evidence was that it would be reasonable to use the creekline to assist in water retardation, ie. modify the existing form.

76 The Development Plan proposes modifications to the creekline requiring, for example, the removal of vegetation and realignment of the creek into pipes to enable road crossings and retarding basins to be constructed. Mr Rule indicated that it may be possible to retain an environmental flow.

77 During the Hearing, a plan (referred to as "the purple plan" headed "Comparison of Areas of Significant Vegetation ERM 2004 and Biosis 2005") was tendered by Mr Cicero showing a different form of retarding basin layout than identified in the Development Plan. It provides three retarding basins along the creek alignment that accord with Mr Rule's evidence, trees to be retained, and an area of significant vegetation centrally located on the eastern boundary that Mr Kelly proposed be retained.

78 Based on that later plan, it is apparent that works would be required to significantly modify the form of the creek and that a 30 metre vegetated buffer to the drainage course would not be provided. As we have accepted Dr Yugovic's assessment that the creekline vegetation is significant, we have some concern about the extensive modifications that are proposed. We do not think that changes to the watercourse should be precluded, rather more compatible works would be preferred than essentially reconstructing the creek to create retarding basins. The creek could clearly retain its function and be enhanced. That does not resolve issues relating to the creek upstream or downstream but we do not think that the watercourse should be "given up" because of problems elsewhere. Indeed, a proper assessment and forward plan to protect the identifiable environmental values of all land in Cell 6 should properly inform a wider development plan.

79 Both experts provided a calculation of habitat hectares that would be lost. We record that we accept it would be possible to achieve the requirements of the Native Vegetation Framework by, for example, setting aside a reserve along the creekline, an example of which was referred to by Mr Kelly and potentially other works/activities.

80 Drainage evidence was provided by Mr Rule for the Applicant and Mr Mitchell for the Council. Issues of drainage and runoff were also of concern to local residents, particularly those downstream of the review site, such as Mr Buttegieg who described instances of flooding to his premises.

81 While Mr Mitchell raised some issues about the proposed drainage works, we are satisfied that engineering solutions are possible to ensure that the proposal caters for its own drainage and runoff. Our primary concerns focus on wider catchment issues, and this is significant to our view that the Development Plan has the potential to undermine or impact on planning for a wider area. We have already referred to a related matter being that the proposed design would impact on the environmental values of the creek that do remain, values we consider are worthy of a more sympathetic response.

82 Based on the evidence of Mr Rule, the Development Plan provides for the storage of 5,500 cubic metres of water storage. The aim has been to meet the Council's requirement of retarding the 1% flood occurrence and discharging all waters on the basis of a 10% occurrence.

83 This allows for 2,500 cubic metres for the development and an additional 3,000 cubic metres as a contribution to the management of the upstream catchment. As Mr Cicero fairly noted, the review site would contributing to the resolution of an upstream catchment issue with no recompense.

84 The 3,000 cubic metres is part of a total of 11,000 cubic metres that we understand through Mr Rule's evidence the Council may have accepted as an amount to be provided on the subject land and the land to its east (super-lot S4 which has the same area of 10.7 hectares as the review site). This figure of 11,000 cubic metres is less than provided for in a 1996 Drainage Investigation[11] and is based on Mr Rule's review of runoff coefficients and assumptions about development used in that 1996 study. Later during his evidence, Mr Rule stated that he would prefer to rely on the earlier figure of 19,000 cubic metres referred to in the 1996 Drainage Investigation. Using that figure, the proposal would seek to contribute 3,000 cubic metres of a total of required capacity of 19,000 cubic metres, that is around 16% whereas Council would wish the subject land to provide one half. If Mr Rule's estimate of 11,000 cubic metres was adopted as the relevant figure for the catchment, then the proposal would provide 27% capacity. We were also provided with two other options during the course of the Hearing involving retarding basins off the creekline (Basin A and Basin C) but neither would make a contribution to wider catchment issues.

85 The review site is part of a catchment that is under stress. The subject land and creekline carry water from higher in the catchment which departs the review site and heads downstream. Flooding within the catchment is an issue and the 1996 drainage study sought to investigate this matter further. It is a significant problem that the matter remains unresolved some 9 years on. There is merit in assisting to manage downstream flows and the Plan makes a positive contribution in that regard. We do not think it fair that the review site make no contribution, however, a contribution of 15% or even 27% also does not seem fair on its face. Moreover, we understand that there have been no discussions with the owner of lot S4 and no notice has been given to that owner of the increasing and very significant works that the Council may seek to pursue - works the current Applicant has actively, and understandably, sought to reduce as much as is possible on its land. In itself, this demonstrates the importance of a development plan for at least the entire area west of Brady Road to address drainage matters from a broader perspective and to ensure an equitable outcome for all owners. It is also essential to provide a sound basis for a development contribution of some form that can be determined and applied fairly to all affected properties. It is relevant in this regard that the evidence of Mr Mitchell and Mr Rule indicates that resolving the upstream catchment situation using land shared across both the subject land and super-lot S4 may require less land on each site than where each lot provides a contribution individually.

86 Thus, while we believe that a drainage system could be engineered, broader issues have not been adequately addressed in the manner sought by DPO1. The proposal would potentially compromise the reasonable development of the lot to the east and drainage/stormwater planning for the catchment. This is inappropriate when considering Clauses 15.09 and 65 as well as DPO1.

87 A related matter is that flooding levels have not been identified. Thus we are not able to ascertain whether the proposed open space along the creekline with the retarding basins in place can serve as useable open space. This is a matter that is required to be addressed by DPO1. Mr Gattini said if the creek corridor was to be flood prone then a 5% site value contribution could be required for land purchase elsewhere. That seems to be a knee-jerk response and highlights other issues about the planning of an open space network which sensibly might be focussed on the creek and its environs and where a contribution is made by both the subject site and adjacent land to the east.

88 The plans provide for no easements, such as might be required along the western boundary based on Mr Mitchell's evidence. Mr Rule's evidence was that there is a drain along the western site boundary within the Highbury Estate and this matter may well be simply solved.

89 A range of issues were raised in relation to the lot layout. We have already dealt with the questions of lot size and neighbourhood character, and alluded to our concerns about a lack of variation in lot sizes for a development of this size. We now refer to some more detailed considerations raised in submissions.

90 The provisions of the DPO seek consideration of the inter-relationship between land included in a development plan and adjacent lots/context in terms of matters such as lot layout, open space and pedestrian/road links.

91 There is little direct relationship or proposed road link with lots in the Highbury Estate other than a narrow proposed opening between lots 12 and 13 leading to a retarding basin on the Highbury Estate. In fairness, the Estate has "turned its back" on the review site and there are no road link opportunities. There is a "hotch-potch" of subdivision layouts evident when viewing a cadastral plan and that would be continued with this Plan. Each is internalised and there few if any links between them. Only limited consideration seems to have been given in the Development Plan to providing a transition in lot forms from one development to another. That, on the face of it, seems historically how development has occurred and it is clear that the Scheme now advocates a more holistic approach to the remaining undeveloped or under-developed land within the Gisborne township boundary. We add that there is no rationale for the size and form of lots abutting the Highbury Estate. Indeed, no plan of the layout of the Estate was available until several days into the Tribunal Hearing.

92 At a macro-scale, it is evident that the layout adopts a quite uniform pattern across most of the land, except to the south where there has been a conscious decision to provide for larger lots between 1,800 and 2,100 square metres. There may be some justification for building envelopes at the interfaces with adjacent land.

93 The orientation of lots was criticised by local residents but we expect that dwellings could be erected with reasonable access to northern light.

94 There is no stated rationale for the position of the road connections to the land to the east. There is also no sound rationale in our view for the width of roads within the development to be wider in the courts - the proposal is for the primary north-south connector to be 6 metres and then 8 metres within the courts. There seems no imperative for wider roads in the courts even when allowing for some on-street parking.

95 We expect that the road alignment could be adjusted to ensure that all existing trees along the creek alignment are retained, although on the plans before us the southern-most tree could be affected.

96 Traffic impacts were raised as a concern by local residents particularly in relation to increased traffic volumes and existing points of hazard, such as at the intersection of Mt Gisborne Road and Aitken Street. Local residents were concerned that the current road infrastructure would not handle the additional traffic while also accommodating children and others who walk or ride. Evidence in response was presented by Mr Tucker.

97 There is no doubt that development of the review site will increase traffic as will be the case with other development of land zoned for urban development in Cell 6. Mr Tucker's evidence was that the road works proposed should be consistent with the likely future requirements of Willowbank Road. His evidence was that this would involve the widening of the carriageway of Willowbank Road without the need for additional land.

98 We expect that Willowbank Road could accommodate traffic generated by this proposal with some works but, in absence of planning for Cell 6, the required final form is not certain. Again this is a matter that would be assisted by a development plan for the wider area but in our view, the drainage issues are more significant and more complex to resolve than the works required to facilitate traffic and people/cyclist movement.

99 Pedestrian and cycle links would be possible utilising the proposed road network and whatever form of path might be able to be provided along the creek corridor. A shared pathway link should be wider than 1.2 metres as is shown, but that could be addressed.

100 The Council's submission contended that approval of the Development Plan would be premature ahead of the completion of its current strategic planning work affecting all cells identified in DPO1. The position was essentially that there should be a moratorium on all development in the DPO1 areas until such time as its ODP process is complete, expected in mid 2005. That was challenged by Mr Cicero. Mr Peake also submitted that if it is likely that the subdivision would contribute to the need for community infrastructure (such as road works) that should be equitably funded through a development contribution plan, then in the absence of a pressing need for subdivision, a permit should not be granted. He stated that a development contribution plan would emerge from the current structure planning process.

101 Much was said during the course of the Hearing as to what might emerge from the current structure planning/development plan process. Expectations range from some quite detailed plans for each cell to much broader statements of policy. It is not entirely clear to us what the final work will comprise but we note that Mr Peake said that it would result in Scheme amendments to be exhibited mid-year. Much will need to be done if that will include a proposed development contributions plan and other complex matters.

102 While we appreciate the Council's intent to advance this work at some pace, we are unable to accept the Council's position that the completion of the current strategic planning process must occur before any development could be contemplated. The provisions of DPO allow for partial development of a cell to be considered and the facts and circumstances of a particular proposal may warrant an approach that sees only part of a cell being the subject of an adopted development plan. We do not attempt to speculate on circumstances where that might be appropriate rather each proposal will be required to be assessed on its merits in light of the relevant facts. Indeed, in the current case, for many years the area west of Bradys Road has been distinguished in strategic planning studies as we have noted previously. With the Highbury Estate now well underway, a plan involving the future development of the subject land and super-lot S4 may be acceptable. It is clear, however, that we have found the Development Plan for the subject land inadequate in so far as it has been developed in relative isolation of its context in a strategic sense and its adoption (and in turn the issue of a permit for the proposed subdivision) would have the potential to undermine sound planning outcomes for the wider area.

103 Finally we add that we do not find that the Plan fails because it does not provide for community facilities and this is again an element to be considered in a wider planning context.

104 It follows for the above reasons that we have not been persuaded that the Development Plan is satisfactory for adoption by the Responsible Authority. We consider that the Plan has been developed in isolation of its context and, if adopted, would have the potential to undermine the achievement of sound planning outcomes for Cell 6.

APPLICATION UNDER SECTION 79

105 If we had found that the Development Plan was satisfactory then it would have followed that, subject to detailed matters being resolved, a permit could have issued for the subdivision as it would have been consistent with the adopted Development Plan. However, based on the above findings, no permit can issue for the proposal set out in permit application no. 2040093 as there is no adopted Development Plan pursuant to Clause 43.04. We have not fount it necessary to address matters relating to this Application any further.

106 For the above reasons we will not allow either Application for Review No. P1055/2004 or Application for Review No. P2742/2004.

Are the Requirement s Met by the Development Plan dated 15 Sept. 2004?

A clear indication of all proposed land uses within the plan area.

• Provides convenient internal and external access for residents;

• Allows for the provision of public transport;

• Provides convenient and safe pedestrian and cycle networks with linkages to adjoining development and major destinations such as schools, shops, sports facilities;

• Provides accurately located road linkages to surrounding areas and corresponds to adjoining development plans.

Requirement met. Housing, roads, open space/drainage shown.

Road access provided. Public transport not shown but could be accommodated. Pedestrian and cycle links within the site shown with link to the west for pedestrians to the Highbury Estate and to the east. No corresponding development plans exist; lot and road layout on Highbury Estate not shown.

• Provides a variety of lot sizes and densities across the development cell allowing for a variety of housing types and for other compatible land uses;

• Takes into consideration the topography of the land, particularly with regard to the provision of useable open space, site elements such as vegetation, waterways or other significant features, and physical infrastructure such as roads and reticulated services (water, sewer, drainage); and

• Allows for passive solar development.

Does not show lots across the cell, other than parts of some lots to the south and north. Shows no layout for the Highbury Estate. Provides lots varying from 0.1 hectare to 0.21 hectare. 8 lots over 0.17 hectare and 45 lots between 0.1 and 0.17 hectare. Considers open space/creek corridor to the north and south. No evidence of usability of link to the retarding basin to the west. Passive solar development possible.

•

Is clearly visible and accessible to residents within the development area,

•

Connected to existing or proposed open space areas,

•

Is not flood effected or constrained, and

•

Integrated with areas and corridors of habitat significance where possible.

Open space is identifiable for residents and would be connected to a reserve to the south. Potential for development of open space to the east but not shown on the Plan. No information to identify if the creek corridor would be flood prone or constrained as 1:100 year flood level is not nominated. Option proposed for additional 5% contribution for open space if the proposed creek works would limit open space potential.

The location of any major infrastructure easements.

The stages, if any, by which the development of the land is proposed to proceed, including a statement regarding the ability for each stage to be provided with all required infrastructure before certification of the plan of subdivision.

The provision of, and timing of provision of, physical infrastructure; clearly demonstrating the ability to overcome before certification of a plan of subdivision any deficiency in any reticulated service or infrastructure item required by the proposed development.

Drainage and other services could be provided. Wider catchment issues relating to the eastern arm of the Howey Creek partially addressed.

The Development Plan must be informed by the following matters to the satisfaction of the responsible authority:

• A detailed site analysis of the natural, cultural and strategic context of the site.

• A land capability assessment which includes a discussion of the ability of the land to be serviced.

• A flora and fauna survey of the land.

• The location of major drainage lines, water features, proposed retarding basins and floodways.

• A stormwater management plan.

• A traffic management plan addressing the impact of the development on the arterial and local road network.

• An environmental audit that identifys (sic) any environmental hazards or contamination on the land and proposed treatment, if any, or a qualified statement indicating the absence of such hazards or contamination.

• The location and staging of community education, commercial, open space, and recreational facilities.

Information provided with the exception of a detailed site analysis and an environmental audit. No community or commercial facilities shown or proposed.

• Encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.

• Identify landscape options to soften impact on Mt Gisborne approach.

Land within the Development Plan is not adjacent to any of the nominated roads. Landscape impact on Mt Gisborne not relevant/not addressed.

[1] Tribunal orders dated 10 September 2004 by Member Quirk and 6 October 2004 by Deputy President Gibson.

[2] We understand the final form of this to be known as the "Macedon Ranges Residential and Industrial Review" July 2000 by Essential Economics, Connell Wagner and i.d. consulting.

[3] No date or author is specified but we understand that to be the same document cited at footnote 2 above.

[4] For reasons set out in an order by Member Quirk dated 10 September 2004.

[5] VPP Practice Note on applying the Incorporated Plan and Development Plan Overlays (January 2003).

[6] Burnside Properties Pty Ltd v Melton City Council [2002] VCAT 2326; Marcus Creek Association Incorporated v Indigo Shire Council [2004] VCAT 2595; Jocelyn Meadows Pty Ltd v Casey City Council and Anor [2004] VCAT 2627.

[7] Jocelyn Meadows Pty Ltd v Casey City Council and Anor [2004] VCAT 2627at paragraphs 40 and 45.

[8] Macedon Ranges Shire Council v Murone and Others [2004] VSC 525.

[9] Compare Clause 56.01-1 in relation to the surrounding area with Clause 3.0 of Schedule 1 to DPO in relation to matters which must inform the development plan.

[10] At Section 5.4.

[11] Gisborne Retarding Basin Drainage Investigation Report for the Shire of Macedon Ranges May 1996 by Coomes Consulting Group Pty Ltd.