[2006] VCAT 629

The decision of the Responsible Authority in relation to permit application No P281/05 is affirmed. Pursuant to the provisions of Section 85(1) (a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

Mr Chris Canavan, QC instructed by Ms J Lardner of Lobb & Kerr Solicitors. He called written and oral evidence from Ms Carol Frank-Mas, Landscape Architect; Ms Roz Hansen, Town Planner of Hansen Partnership Pty Ltd; Mr Rob Galbraith, Arborist; Mr Brian Dudakov, Valuer of UrbisJHD. Mr Walsh, Traffic Engineer of Grogan Richards prepared a written evidence statement but with the agreement of parties was not called to give evidence or answer questions.

Mr David Goodwin, Planning Consultant (representing people listed in his submission)

Paul Hamilton, Brenda Miller, Lois Trimble, Ian Chisholm and Ellen Kershaw

1 Harmon Group Pty Ltd opposes Council's decision to reject its proposal for 40 dwellings and vegetation removal on land at 50 Inglis Road, Berwick. The application was initially for 40 dwellings and the removal of native vegetation, but has since been amended to 38 dwellings and the removal of native vegetation. Council's refusal, which was contrary to the officer's report recommending conditional approval, was on four grounds being:

i

The proposal does not respond to the physical features of the site which is symptomatic of an overdevelopment of the site.

ii

The proposal is not respectful of the character of the surrounding area particularly in relation to loss of virtually all existing vegetation on the site.

iii

The proposal will severely restrict pedestrian connectivity through the neighbourhood particularly for residents in the general area.

iv

Thee proposal will create a 'gated' community which is undesirable given the character of the surrounding area.

2 In 2004 I reviewed a very similar proposal to develop the land for 40 dwellings.[1] Aside from the provision of 'gated' linkages to the adjoining off-site open space areas and a reconfiguration of the internal layout including the entrance treatment, the proposal is very similar in scale and character to the previous proposal. In my previous decision I assessed the proposal having regard to planning policy, neighbourhood character, natural site constraints and opportunities, off-site amenity impacts on neighbours and car parking and traffic. In refusing that proposal I made the following observations in my conclusion:

30 ...I did consider the option of granting a permit but with conditions requiring open space links to the existing linear reserves (as recommended by Council officers), retention of more trees and deletion of dwellings to create more space around the trees being retained. However the practical effect of fixing these shortcomings will inevitably result in a substantially different development. That does not mean that a medium density development, of mixed one and two storey built form, is not appropriate for this site. Residents should not expect that a redesigned proposal would necessarily result in a residential subdivision similar to that existing to the east and west. The key issue is that any new proposal is a design that actually responds to the specific site context.

3 I also described the site and its environs in my previous decision in the following terms:

4 The site is located on the southern side of Inglis Road and is the last remaining large parcel of undeveloped land between areas to the east and west that have been subdivided and developed as residential estates. The site has an area of 1.627 hectares. Land to the south forms part of the extensive Edwin Flack Reserve. Land opposite on the north side of Inglis Road is used for rural activities

4 There has been no material change to planning circumstances and the existing conditions of the area have remained very much the same.

5 Subsequent to issuing my decision in August 2004, the permit applicant appealed my decision to the Supreme Court.[2] In August 2005, Osborn J handed down his judgement and dismissed the appeal by the permit applicant. In essence Osborn J did not agree with the contentions put by Mr Garde QC on behalf of the permit applicant. He did not agree with Mr Garde QC that the Tribunal failed to weigh up the negatives identified by it against the positives which it found the proposal to possess (paragraphs 18 and 19). Osborn J also found (paragraph 21) that in the present case the Tribunal's reasons are squarely founded upon the findings which it makes as to material facts.

6 Planning controls as they affect the land remain the same as in 2004, save that the native vegetation provisions in Clause 52.17 have been amended by the gazettal of VC38 on 16th March 2006. (In my view these revised provisions do not raise any matters not already covered in submissions or evidence, trigger additional referral to the Department of Sustainability and Environment pursuant to Clause 66.02, or require further analysis in relation to the matters set out in Victoria's Native Vegetation Management - A Framework for Action).

7 The site and land to the east and west is zoned Residential 1. Land at the rear in the Edwin Flack Reserve is zoned Public Park and Recreation and land opposite on the north side of Inglis Road is zoned Rural (Schedule 4). No overlays apply.[3] A number of state and local planning policies were highlighted for my consideration.[4]

8 Documents and photos submitted at the hearing have been retained on Tribunal files. Material submitted after the hearing in relation to the question of law has also been retained on file.

9 I agreed to an amendment to the application and to the substitution of amended plans. The proposed changes to the application and the amended plans were circulated to parties on 15th November 2005.

10 At the hearing parties raised a question of law relating to the draft permit conditions. Parties asked that the opinion of a legal member be obtained. Paragraphs 11 to 24 contain the unedited opinion of Senior Member Horsfall on the relevant question of law. I deal with the merits of the case in the paragraphs following Senior Member Horsfall's opinion.

11 At the conclusion of the hearing of the merits of this application, I was requested by Member Bennett to join the proceedings to determine a question of law raised by Mr Canavan on behalf of the applicant in relation to the draft permit conditions.

12 The determination of the questions of law are made by me as a member of the Planning and Environment List who is a legal practitioner.

13 The draft permit conditions proposed for the development by council contained the following provisions:

1.(b) deletion of keyed gate access to pedestrian links.

4. Prior to commencement of any works, an easement of way to provide pedestrian access through the site to link with adjoining public open space shall be vested in Council.

5. Prior to the issue of a building permit, the owner must enter into an agreement with the Responsible Authority made pursuant to S 173 of the Planning and Environment Act 1987 and make application to the Registrar of Titles to have the agreement registered on the title to the land under s 181 of the Act, which provides that:

(c) If the development approved by this permit is subdivided, pedestrian linkages through the land to link with the existing linear parks located along the southern, eastern and western property boundaries of the land must be vested in Council. The width of each these pedestrian linkages must match the adjoining linear park. The linkages must be landscaped to the satisfaction of the responsible authority. The provision of these areas will be considered as an offset against any public open space contribution leviable on the subdivision of the land.

6. The s 173 agreement referred to in condition 5 of this permit must be prepared and executed at the applicants / owners expense.

9. Pedestrian links must be kept open at all times.

14 Mr Canavan submitted that these conditions amounted to a compulsory acquisition of the land and were not authorised by ss 62(6) Planning and Environment Act 1987 for the following reasons:

•

The works, services and facilities required by the conditions were not in accordance with any approved development contributions plan under s 46N. No such plan existed. [ ss 62(6)(a)];

• The planning scheme did not require the conditions to be in the permit [ss 62(6)(b)]; and

• The conditions were not required by a referral authority [ss 62(6)(c)].

•

271 William Street Pty Ltd v City of Melbourne[5]

•

Christian Brothers v Banyule City Council[6]

•

Naprelac v Baw Baw SC[7]

•

Springhaven Property Group Pty Ltd v Whittlesea CC[8]

•

M Hand v Heatherlea Homes & Warrnambool CC[9]

•

VPR Editorial comment[10]

(a)

Whilst the policies cited by Mr Stokans for the creation of pedestrian links in the planning scheme were relevant, a compulsory acquisition of a right of way does not fairly and reasonably relate to the grant of this permit, and that insofar as policy is relevant, it is already satisfied by the existing pedestrian links shown in the maps and diagrams produced.

(b)

The policy provisions referred to do not contemplate compulsory acquisition.

(c)

Even if the acquisition of the right of way is supported by policy, it is prohibited by ss 62(6). If not, any council would have the power to require a right of way over a single dwelling or a dual occupancy or under a design and development overlay provision.

(d)

This was not an application for a subdivision when public open space could be acquired, if that power exists, but is an application under cl 55 for a development to which the subdivision provisions are not applicable.

(a)

The condition seeks to provide public access. The development approval sought is the first step in implementation. The second is the subdivision. Under cl 56 of the scheme a public access way could be required in a subdivision permit application.

(b)

He relied on 271 William Street that a condition was valid if it sought to ensure planning policy is achieved and provided the policy related to the development permission sought.

(c)

For the policy basis for the condition he relied on cls 14.02-1(settlement/metropolitan development/general implementation), 15.10 (open space objective), 15.10-2 (general implementation), 21.02-3 (fifth dot point of key land use themes), and 21.13-1& 2 (accessibility - community and open space facilities and objectives), 55.02-5 (integration with the street) and 55.03-6 open space objective).

(d)

There is a lack of linkages in this area, the proposal would disrupt the existing linkages and the need for the conditions arises directly out of these policies. If provision is not made now, the internal streets will be owned by a body corporate and the opportunity to create public access ways and vest them in the council will be lost.

(e)

He agreed ss 62(6) was intended to limit the imposition of development contributions, but said the second arm of ss 62(6)(a) contemplated that that this condition could be justified under ss 62(5)(c).

18 Ss 62(5) and (6) read:

62(5) In deciding to grant a permit, the responsible authority may -

•

include a condition required to implement an approved development contributions plan; or

•

include a condition requiring specified works, services or facilities to be provided or paid for in accordance with an agreement under s 173; or

•

include a condition that specified works, services or facilities that the responsible authority considers necessary to be provided on or to the land or other land as a result of the grant of the permit be -

(iii) provided or paid for partly by the applicant where the remaining cost is to be met by any Minister, public authority or municipal council providing the works, services or facilities.

62(6) The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide works, services or facilities except -

(a) in accordance with sub-s (5) or s 46N; or

(b) a condition that a planning scheme requires to be included as referred to in sub-s (1)(a); or

(c) a condition that a referral authority requires to be included as referred to in sub-s (1)(a).

19 Their application in this matter involves a number of steps.

20 The first question is whether the condition requires a person to pay an amount for or provide works, services or facilities. This was not disputed and I so find. The conditions require the alteration of gate access so as not to be keyed, the provision of land as a public open space contribution and works to develop it as a landscaped pedestrian linkage.

SS 62(6)(a) - second arm

21 The word "or" in this paragraph authorises a condition contemplated by ss 62(6) if it is authorised by ss 62(5)(c), even though there is no approved development contributions plan. This provides the inter-relationship between the sub-sections.

SS 62(5)(a) & (b)

22 Ss 62(5)(a) is not applicable as there is no approved development contributions plan.

23 Ss 62(5)(b) is not applicable. A contested and invalid condition cannot be justified merely because the council requires it be implemented under a s 173 agreement. See Naprelac v Baw Baw SC cited above.

Ss 62(5)(c)

24 The issue thus becomes whether the conditions are authorised under ss 62(5)(c). I find they are for the following reasons:

(a)

I have found above that what the conditions require is the provision of works, services or facilities.

(b)

I agree with Member Bennett's finding that the policies referred to support a requirement for the provision of public pedestrian linkages in this case.

(c)

The particular tests of ss 65(5)(c ) are met. Council has decided the works, services and facilities are necessary and we have found that decision is supported by policy. They are to be paid for or provided by the applicant and are to be provided on the land. This is not a situation where there is cost sharing between different owners involved.

(d)

Applying the general test for validity of a permit condition, that is, does the condition fairly and reasonably relate to the permission sought to be granted. I agree with Member Bennett that the provision of pedestrian linkages is supported by the policies for the development to be site responsive, they will complement and support the pedestrian linkages already established in the area, rather than impede them. The development as proposed will cut off and block the existing system which has otherwise been successfully implemented. I agree with Member Bennett that the need to be site responsive requires consideration of and extension of the existing system of public pedestrian linkages.

(e)

Cl 65.01 also requires the council and VCAT to consider a wide variety of maters which include, when distilled, what will be the ultimate outcome of the proposal. This development is proposed as a gated community which will have the effect of excluding any outside access to its internal road system. Consideration of a subdivision which will occur before units can be sold will require a public open space contribution, either in land or cash, and council has the right to choose which option it prefers[11]. In this case council has already indicated its preference to take land to improve the system of public pedestrian linkages. This proposal, if approved in its current form would frustrate this outcome. The clause in effect entitles the council and VCAT whether to consider cl 56 as well as 55 in addition to the State and Local policies.

(f)

Consideration was given to the decision of the President, His Honour Justice Morris in Hand v Warrnambool CC[12] tendered after the hearing by Mr Canavan, but not argued. I consider it is not applicable to this case as it dealt with a different issue, and insofar as ss 62(6) was relevant it was in a different form from current amended provision which cross reference ss 62(5).

25 Despite being very similar to the proposal I rejected in 2004, there are aspects of the design which I supported in 2004 and which in my view remain acceptable.

26 In my previous decision I described the neighbourhood character and noted in paragraph 10 that housing in the area is a mix of one and two storeys and the area does have a relatively low intensity suburban character. I commented favourably on the scale of the development in that context in the following manner:

10 ...To that extent the proposal to construct one and two storey dwellings on the review site is consistent with this built form, although the density is higher than that generally found in the area. That in itself is not a fatal flaw with the proposal and given urban consolidation policies, it is inevitable that future densities in fully serviced areas will be higher than in times past. Provided such densities are not too out of character then such higher densities can be supported and in that respect I do not reject the mix of one and two storey dwellings and the number of dwellings on a site of this size.

27 Nothing I have seen or heard since 2004 would lead me to a different view about the acceptability of one and two storey housing as now proposed.

28 I also made it clear in 2004 (paragraphs 27 and 28) that I did not have any concerns with parking, traffic or access arrangements. That remains my position with the present proposal. Although Mr Walsh again prepared an evidence statement for this new proposal, with the agreement of parties he was not called to give oral evidence or to answer questions.

29 In paragraphs 25 and 26 of my 2004 decision I dealt with off-site amenity impacts on neighbours and noted that despite accepting Mr Hooper's evidence about detailed impacts of the proposal, I had some concerns about the relative levels of decks, patios and retaining walls. I also noted that any shortcomings could be addressed in any new design for the proposal. That remains the case and if I was granting a permit would require overlooking impacts to meet the relevant standard set out in Clause 55.

What remains in contention, and are any shortcomings fatal to the proposal?

30 In 2004, I was unequivocal in stating that the proposal failed because it had not responded appropriately to the site context and in two sections - Neighbourhood Character and Natural Site Constraints and Opportunities - explained my reasoning for coming to such a view.

11 However another very notable feature of this neighbourhood is the linear park system that provides an alternative means of movement for pedestrians and cyclists. With the exception of the review site, the residential areas on either side and to the south west of the review site are provided with small parks that provide links between the various streets and eventually link through to the Edwin Flack Reserve and the secondary school. The review site in its undeveloped state has resulted in this reserve network being truncated at three points at the boundaries of the review site. (In reality people have been using the review site as an informal link between these reserves, but such movements have in effect been trespass on private land). Although no Outline Development Plan exists to require this network it has, over many years, been developed as a very effective and obviously much appreciated characteristic of this area. The proposal does not build on this important element of the neighbourhood character and in fact ignores it completely, and this is one aspect of the proposal that I find unacceptable in terms of it being a site responsive design.

19 The major disappointment in relation to native vegetation removal concerns Tree No 32. This is a very large and significant tree and has rating of '5'. Mr Galbraith originally recommended that it be retained but at the hearing changed his mind and said it should be removed because it could not be saved with the amount of excavation required around it. This is not site responsive design. Put bluntly, if the tree is to be saved then the design must incorporate sufficient free space around the roots and canopy to ensure its long term survival - and to minimise calls for it to be later removed because of perceived safety issues in relation to limb drop on roofs or damage to roads and walls.

20 The other major issue in relation to site context concerns the network of pedestrian walkways within the neighbourhood and the fact that three of these abut the west, south and east boundaries of the review site. The design response has ignored these and I find this an unacceptable outcome given the themes in policy frameworks:

Development of a municipal-wide open space network, incorporating bicycle and pedestrian paths and equestrian trails.

To reduce car dependency amongst the Casey community.

21 Policy is clear that existing links need to be improved and in relation to accessibility (Clause 21.13-1) notes that:

What is lacking is a municipal wide network of open space linkages to connect regional open space to lower order open space and to built up areas. This is essential for the full and effective use of all open space assets.

22 I consider that the Council officers were on the right track in requiring the linking of pedestrian spaces through the development and I am puzzled why the Council removed this requirement given the existing and well-established network that comes right up to the boundary of the review site. Although there is no outline development plan applying in this area, effective strategic planning would support the linking of the existing well-established pedestrian network. A concrete path actually runs to the western boundary of the review site and is then truncated by a fence along the property boundary. The main desire line for residents to the west is clearly in a south east direction towards the school and major recreation facilities. I find it inconceivable that even if the proponent does not want to provide public access through the land that these links were not provided for the convenience of residents of the new development, with one way lockable gates to prevent access if desired. At the hearing Mr Garde suggested that a resident only link could be provided to the park to the south so that residents of the development could easily access the recreation area and school to the south.

23 Fundamentally this proposal fails because it has not responded appropriately to the site context. The whole point of preparing a site context plan and design response plan is not to identify features such as linear parks or significant vegetation and then disregard them. The point is to identify them and then design a proposal having regard to such features. While it does not automatically mean such features must be retained at any cost or no matter how impractical, it does mean that any adverse impacts (including removal or potential damage) has to be very well justified if it is to be approved. On another site and with different site context (such as the sites in Brisbane Street and Marlesford Crescent), the current proposal would almost certainly gain approval without any of the opposition that has been generated on this site.

24 It seems that in many cases permit applicants have a fixed vision or dream of what they want to build and that they have not modified their ideas to take account of, and respond to, the specific site context of the land on which they wish to build. So it appears in this case. In essence, the current proposal involves a replication of a style of medium density development that has been successfully provided by the applicant elsewhere in Berwick. There is nothing wrong with such developments and I do not support residents concerns about a 'gated' community'. Individual houses such as those owned by the respondents have fences and gates and it is common for medium density developments to limit public access. Indeed the provision of this housing style within the Berwick community adds diversity and choice for local residents. What is lacking in this case is a design that responds to the specific site context.

31 Although the latest proposal is quite similar to the proposal I rejected in 2004, importantly it now provides for pedestrian access from the review site into the adjoining open space network. However these links are provided with gates so that outsiders cannot access the review site and therefore they cannot traverse the site to go from one of the external open space links to another. At the earlier hearing, Mr Hooper gave planning evidence while at this hearing Ms Hansen was called instead. In her evidence she acknowledged:

... that a key feature of the neighbourhood is the network of public open space providing an alternative means of movement for pedestrian and cyclists between residential estates.

32 After discussing the existing networks, the new proposal and the comments I made in the previous decision, Ms Hansen comments that:

I am satisfied that the current application has considered the opportunities presented by these linkages and that the previous decision of the Tribunal provides sufficient direction to limit access to residents only. (Paragraph 104 of her submission)

33 I disagree. Ms Hansen does not quote my relevant paragraph in full and it is important to note that my comment in relation to the one way lockable gates was in response to the suggestion made by Mr Garde QC at the hearing to provide a single link to the south for the benefit of residents.

34 In my view, my previous decision was unambiguous about the desirability of providing connections to the existing open space network. A network that does not provide for unrestricted two-way flow does not achieve policy objectives aimed at creating a network of bicycle and pedestrians trails. Aside from local policy aiming to achieve such outcomes, metropolitan policy at Clause 12 contains many objectives and policies seeking to provide safer and more attractive walking and cycling spaces and routes (see for example Clause 12.02-2 (Safety and Neighbourhood Design) and 12.08 (Walking and Cycling). Clause 14 also makes reference to planning decisions assisting to create linked parkland and open space systems and facilitating the development of walkable neighbourhoods.

35 I therefore do not support the provision of one way pedestrian links as shown on the substituted application plans. As in the first application, Council officers have recommended that unrestricted pedestrian links be provided through the review site. Senior Member Horsfall has found that if desired, a permit condition could be included requiring the provision of unrestricted pedestrian linkages, which in time would be transferred to Council at the time the land is subdivided. It is clear that I support the provision of such linkages, but as with the first application, it is not a simple matter of requiring the deletion of lockable gates. Linking the open space areas abutting the three boundaries of the site in a practical and convenient manner would require a different layout through the review site to the indirect layout now proposed.

36 In reconsidering this issue of open space linkages, I note that reference was made by residents to a Cell S plan which was prepared many decades ago but has never, unlike other cell plans, been included in the Planning Scheme by way of a Development Plan Overlay. Although of general interest as to the thinking at that time about pedestrian and open space linkages, I give it no weight as its content and status has never been affirmed through the planning system.

37 Valuation evidence presented by Mr Dudakov compared the relative values of 'gated' and 'ungated' residential estates. I have no reason to dispute the calculations prepared by Mr Dudakov but ultimately, his evidence does not diminish or outweigh the strategic planning imperatives concerning pedestrian accessibility and permeability.

38 I now turn lastly to the other major area of contention - both in this and the previous application. At the outset, I record that in both cases I do not take issue with the landscape proposal and the evidence presented by Ms Frank-Mas. However, in giving that support I would not rule out supporting a proposal that acknowledged the bushland character of the forested hills to the north and which in some measure provided enhanced habitat for local fauna. It is not something that would cause me to find against the proposal and in nay case, if a permit were to be granted, landscaping would be subject to further approval by Council.

39 Mr Galbraith again gave evidence in relation to existing trees on the site and the relative merit of those trees and whether they should be retained. I note that Trees 7 and 11 are to be retained and are to be located within the central island within the entrance driveway. I consider this a good outcome in terms of enhancing the long term health and ongoing maintenance of these trees.

40 It is Tree 32 and its slated removal that has been of major concern at both the previous hearing and in this case. In 2004 I commented that:

19 The major disappointment in relation to native vegetation removal concerns Tree No 32. This is a very large and significant tree and has rating of '5'. Mr Galbraith originally recommended that it be retained but at the hearing changed his mind and said it should be removed because it could not be saved with the amount of excavation required around it. This is not site responsive design. Put bluntly, if the tree is to be saved then the design must incorporate sufficient free space around the roots and canopy to ensure its long term survival - and to minimise calls for it to be later removed because of perceived safety issues in relation to limb drop on roofs or damage to roads and walls.

41 In his evidence statement Mr Galbraith comments that:

Tree 32 is the only tree not being retained for which disappointment at its removal was expressed in the previous VCAT decision. However it was not recommended to be retained in that decision. Furthermore, the Council arborist and landscape officers as referred to in the Planning Committee's report has suggested it be removed, due to its previous branch and limb failure and poor structural integrity. It was noted the PCH arborist report for the objectors in the previous VCAT Hearing did not express interest in the retention of this tree. There are no other trees which were listed in the previous VCAT decision, the Planning Committee's report or the PCH arborist report which are regarded as being of high worth for retention.

42 The independent Arborist (Tree Logic Pty Ltd) engaged by Council for the previous application (as referenced on pages 22 to 26 in the Council officer's report of 10 February 2004) found that:

Both trees (Trees 16 and 32) were given a worthiness of retention rating (WOR) of 5 in the Galbraith report (Galbraith 2003), indicating they could be retained if desired. The results of this investigation conflicted with the Galbraith findings, rating the trees as having low retention value, primarily due to their age and existing condition.

...Tree 32 had reduced structural integrity, evidenced by the pocket of decay at the base of the tree, previous limb failure and crown dieback.

...Trees 16, 32 and 44 should be considered for removal based on current poor condition and/or their current age and predicted short to medium term usefulness as landscape components.

43 As correctly pointed out by Mr Galbraith, the Arborist engaged by the objectors in the previous case[13] commented that:

Tree 32 is an aged tree, with evidence of decay in the trunk and a history of limbs shedding. It will be a hazard and site detraction.

The existing trees that are considered worthy of retention are trees 7 and 11. The balance is not considered worthy and should be considered for removal.

44 At the previous hearing I was disappointed that Tree 32 was not being retained, and I note that it is not shown for retention in this new proposal. However, as correctly pointed out by Mr Galbraith I did not recommend retention of Tree 32. Although residents would like to see the tree retained with a sufficiently large clear zone, I accept the consistent evidence of the various Arborists engaged to assess trees on this site that it is undesirable for Tree 32 to be retained and incorporated in a residential development on the site. I also note their support for retention of Trees 7 and 11.

45 I am still not satisfied that this latest proposal is a site responsive design or that it has addressed the failure to provide pedestrian connectivity through the site. It is an improvement over the first proposal in that it allows residents on the review site to access the surrounding open space network, but it does not provide connectivity for residents in those surrounding areas.

46 I find that there is considerable policy support for the creation of pedestrian and open space networks to provide options for the movement of people through our urban areas. I accept that such policies must be balanced against others such as those encouraging urban consolidation and more efficient use of fully serviced land. However in my view that balance has not be struck appropriately in this proposal. Future residential development on the review site must allow for that connectivity in a practical and convenient manner across the review site. I accept that there may be a cost in providing that connectivity, as was the evidence of Mr Dudakov, but I do not accept that land values should drive or outweigh land use outcomes clearly enunciated in planning policy.

47 Having regard to the above, I will order that no permit issue.

[1] Hamilton v Casey CC [2004] VCAT 1589 (12 August 2004)

[2] Harmon v Casey City Council & Ors [2005] VSC 327

[3] Clause 32.01-4 requires a permit for construction of two or more dwellings on a lot.

[4] Other relevant Planning Scheme provisions include Clauses 11, 12, 14, 15.12, 16.02, 21 (various), 22.05, 52.17, 55 (ResCode) and 65.

[5] [1975] VicRp 15; [1974] 31 LGRA 189

[7] [2005] VCAT 956 (24 May 2005)

[8] [2005] VCAT 816 (29 April 2005)

[11] S 18(1)(a) & (b) Subdivision Act 1988 and cl 52.01 Casey Planning Scheme.

[12] 16 VPR 177, [2004] VCAT 19 (6 January 2004)

[13] Peter C Harrison Pty Ltd (PCH) - Report dated 27/5/04.