(a)

The document known as "Outline Development Plans: Carrum Downs, Cranbourne, Hampton Park and Langwarrin (including Langwarrin South)" prepared by the City of Cranbourne and adopted on 27 April 1994, including the plans in appendix 1 of the document, is the approved development plan under schedule 1 of the Development Plan Overlay in the Frankston Planning Scheme.

(b)

A child care centre, as allowed by permit 040953 issued by the responsible authority on 21 April 2006, is a use and development that is generally in accordance with the development plan.

(c)

The Tribunal has jurisdiction to hear and determine this application for review.

Mr Lorenzo Rigoni, town planner, of Terrain Consulting Group Pty Ltd

1 The purpose of this directions hearing is to consider the jurisdiction of the Tribunal to consider the application for review given the zoning of the land and the provisions of the Development Plan Overlay (DPO1) which affects the land.

2 Application P1106/2006 is made pursuant to section 80 of the Planning and Environment Act 1987 to review conditions contained in a planning permit granted by the responsible authority for a child care centre[1] on the subject land at 185 Warrandyte Road, Langwarrin.

3 The land is included in a Low Density Residential Zone and is affected by a Design and Development Overlay (DDO4), Significant Landscape Overlay (SLO1) and Development Plan Overlay (DPO1).

4 The matter was listed for hearing on 25 August 2006 before Member Hewet. During the hearing, the implications of the Development Plan Overlay were raised by Mr Hewet. The overlay provides that a permit cannot 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. A permit granted must be generally in accordance with the development plan and include any conditions or requirements specified in a schedule to the overlay.

5 In response to questions by Member Hewet, he was advised that no development plan had been prepared. If this was so, then no permit could be granted for the child minding centre or indeed any other use or development other than construction of a single dwelling on a lot, any buildilng and works associated with use of the land for agriculture, or minor extensions or alterations to existing buildings and works[2].

6 Member Hewet continued to hear the merits of the case but gave directions that the parties were to make further written submissions about the existence of an approved development plan. Written submissions were received and this directions hearing was convened to consider the Tribunal's jurisdiction.

7 Regrettably, I must say that the council does not appear to have a clear understanding of what constitutes its development plans under the Development Plan Overlay

8 The subject land is included in schedule 1 to the Development Plan Overlay - Carrum Downs, Langwarrin and Baxter Outline Development Plans. In its initial written response to the Tribunal, the council referred to clause 22.12 of the planning scheme - Outline Development Plans - Carrum Downs, Langwarrin and Baxter Policy. This policy is stated to apply to the developing parts of Frankston City, at Carrum Downs, Langwarrin and Baxter. The objectives of the policy (clause 22.12-2) include:

To provide a framework for development at Carrum Downs, Langwarrin and Baxter.

•

Outline Development Plans (ODPs) provide a framework to guide the development of remaining growth areas.

•

The pattern of development be generally consistent with any ODP that has been prepared to the satisfaction of the responsible authority.

•

Contributions to the cost of providing community facilities and upgrading of infrastructure identified in each ODP be required.

Langwarrin and Carrum Downs Outline Development Plan

Langwarrin, Carrum Downs, Baxter/Langwarrin Low Density and Stotts Lane Outline Development Plan (in preparation)

•

The site within the area of the Langwarrin ODP, which is a Reference Document in the planning scheme, being specifically listed in the policy references section of the Local Planning Policy at Cl 22.12. Because the ODP is included by reference in the planning scheme that was adopted by Council, it follows that the ODP has been prepared to the satisfaction of the responsible authority. That being the case a permit can be granted because the Langwarrin ODP satisfies the requirements of the first paragraph of Clause 43.04-1 to the DPO.

•

Use of the site for a child minding centre is generally consistent with the ODP and therefore is something Council could consider granting a permit for, in accordance with the last paragraph of Cl 43.04-1 of the DPO.

12 The council also submitted two plans apparently prepared by the firm i.d headed "Langwarrin South Outline Development Plan", which includes the subject land, and "Langwarrin Outline Development Plan".

13 At the hearing on 20 October 2006, I was told that the two plans prepared by i.d had not been adopted by the council and were not the approved development plans under the Development Plan Overlay (DPO1). Instead I was handed two further documents:

•

A large A1 plan titled "Langwarrin Outline Development Plan" Sheet 1 with the notations: Adopted 1.7.87. Amended 7.11.90; 24.7.91; 9.12.92; 31.3.93; 23.6.93; 21.6.96.

•

A City of Cranbourne document entitled "Outline Development Plans: Carrum Downs; Cranbourne; Hampton Park; Langwarrin (including Langwarrin South)", which was adopted on 27 April 1994. It includes text and two appendices. Appendix 1 includes plans, including a reduced version of the A1 Langwarrin Outline Development Plan (but not including reference to the latest amendment on 21.6.96). Appendix 2 includes a table relating to Road Hierarchy - Urban Areas.

14 It was submitted by Ms Lane on behalf of the council that the adopted Outline Development Plan for the purpose of the Development Plan Overlay is the document dated 27 April 1994. She advised that this was the adopted outline development plan for the area covered by the Development Plan Overlay, which had been effectively taken over by the Frankston City Council following municipal amalgamations and preparation of the new format Frankston Planning Scheme. This was the document referred to in the policy reference section of clause 22.12-4. She acknowledged that there had been no specific resolution of the responsible authority adopting this document (or the later amended A1 plan) as the approved development plan under Development Plan Overlay - Schedule 1. Rather, there had been an assumption on the part of the council that reference to the Outline Development Plan in the policy at clause 22.12 was sufficient for this purpose.

15 With respect to the plans prepared by the firm i.d and the other policy references included in clause 22.12-4, I was provided with the following background notes about the Langwarrin Outline Development Plan prepared by John Eichler, senior strategic planner with the Frankston City Council:

•

Following local Government restructuring, Frankston City Council (FCC) inherited Outline Development Plans (ODP's) covering Langwarrin and Carrum Downs from the former City of Cranbourne (C of C) in December 1994.

•

Both those ODP's were Incorporated documents in the Cranbourne Planning Scheme, which FCC administered until gazettal on the "new format" Frankston Planning Scheme in April 2000.

•

In June 1996 FCC amended the Langwarrin ODP in the Union Road area to show changes to the local street network, areas identified for housing and open space.

•

In 1997 Council appointed PPK planning consultants to review, revise, consolidate and standardise various ODP's that had been prepared by different Councils over a period of time. The project reached an advanced stage in 1999 with the production of new plans and text but was not completed.

•

In 1997 Council commenced the preparation of a "new format" Frankston Planning Scheme. A decision was made to include ODP's as Reference Documents rather than Incorporated Documents for ease of modification. A combination of DPO (DPO1) and a Local Planning Policy (LPP) was used to implement the ODP's.

•

The former C of C ODP's and the PPK ODP's (then in preparation) are specifically referred to in the Policy Reference section of the LPP.

•

In 2003 Council again commenced the ODP review process, which had stalled in 1999. The review was undertaken in-house, with ID Consulting producing new electronic maps.

•

The ID Consulting maps, with subsequent modifications made by Council staff, are the documents currently used to on a day-to-day basis for assessing development proposals. The current Langwarrin South ODP map has a note indicating that the map boundary should be modified to include 185 Warrandyte Road.

16 A VPP Practice Note has been prepared by the Department[3]: Applying the Incorporated Plan and Development Plan Overlay. The Practice Note states:

The IPO and DPO are flexible tools that can be used to implement a plan to guide the future development of the land such as an outline development plan, detailed development plan or master plan.

•

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

•

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

17 The Practice Note provides guidance about the functions of the IPO and Development Plan Overlay, advice about when these tools should be used and guidance on how to use these tools. The practice note makes the point that it is valuable for all overlays and plans to be reviewed on a regular basis to ensure that the plan is still relevant to and supportive of the proposed use and development of the land. With respect to access to plans, the practice note states:

The public should have access to the operational version of any plans supported by the IPO or DPO.

Providing public access to IPO plans is simple. Because they are incorporated documents, the approved plans must be kept available for public inspection by the planning authority.

Because the responsible authority can change DPO plans without an amendment, it may be difficult for interested parties to know whether and when any changes have been made to the plan. To avoid uncertainty and conflict about the content and application of DPO plans, the responsible authority should keep a full copy of the current 'endorsed' plan available for inspection. Any report recommending changes to the plan should include the existing endorsed plan and the plan as proposed to be changed. It is also useful for the plan to contain a 'record sheet'. Like the list of amendments to a planning scheme, the record sheet tracks and summarises changes to the plan by document number, version number and approval date. If the plan consists of more than one document, each should include a copy of the sheet. It is also good practice for each page to show a version number and an approval date.

18 The council's failure to heed the practice note advice about access approval, and identification of plans has led to the current uncertainty about what, in fact, actually constitutes the approved development plan under the Development Plan Overlay (DPO1).

19 On the basis of the material that I was presented with, I make the following findings.

•

The documents prepared by i.d Consulting have no status as development plans under the Development Plan Overlay. There is no evidence that they have been adopted or approved by the council as development plans for the purpose of the Development Plan Overlay. There is no identification of that status as development plans. Accordingly, any reliance upon these plans for assessing development proposals under the Development Plan Overlay is unlawful and should cease until such time as the plans are adopted and endorsed as the approved development plans under the Development Plan Overlay.

•

The PPK ODP's, which are apparently the documents referred to as being "in preparation" in clause 22.12-4, have no status as development plans for the Development Plan Overlay either. There is no evidence that they have ever been completed, let alone approved by being adopted by the council and endorsed as development plans under the Development Plan Overlay. As with the i.d Consulting plans, any reliance upon these plans would be unlawful.

•

The approved development plan under the Development Plan Overlay (DPO1) is the Outline Development Plan document dated 27 April 1994 prepared by the City of Cranbourne. I find that this document and the plans included in it meet the criteria that a development plan must include under clause 43.04-3 of the planning scheme and paragraph 2.0 of schedule 1 to the Development Plan Overlay. Although the Outline Development Plan document was prepared by the former City of Cranbourne and adopted by it, I find that reference to the document in the Frankston Planning Scheme in clause 22.12-4 is sufficient to evidence approval of the document by Frankston City Council.

20 It is a moot point whether reference to the "Langwarrin and Carrum Downs Outline Development Plans" in the planning scheme is a reference to the ODP's as they existed at the time when the planning scheme was gazetted, and if the ODP's are subsequently amended, an amendment to the planning scheme is also required. If this is the case, it would appear to defeat one of the purposes of selecting the Development Plan Overlay as the tool to guide the form and conditions of future use and development of land as distinct from the Incorporated Plan Overlay. Fortunately, I don't have to decide the matter as it is not relevant to this case, but it may become an issue in other circumstances, and is something the council should resolve.

21 The dilemma arises because of the form of council's local planning policy found in clause 22.12. In practical terms, I cannot see any reason why a local policy about outline development plans is necessary. It adds nothing substantive to the provisions of the Development Plan Overlay itself and simply confuses and complicates the function of the overlay. For example, the policy cannot now require the development contributions identified in the Outline Development Plans in the absence of a Development Contributions Plan Overlay. Policy to require that the pattern of development be generally consistent with any ODP adds nothing to what is already required by the Development Plan Overlay under clause 43.03. There is no need for a development plan to be referenced in the planning scheme to be an approved development plan under the Development Plan Overlay. In my view, the Outline Development Plans - Carrum Downs, Langwarrin and Baxter Policy in clause 22.12 is totally unnecessary and outdated.

22 Procedurally, I consider there is an urgent need for the council to review what it regards as being "approved" development plans under its various Development Plan Overlays. It should pass specific resolutions approving relevant development plans and it should endorse the relevant plans for the purpose of identification as being the development plan approved under each of the Development Plan Overlays. The council should follow the guidance offered in this respect in the VPP Practice Note, Applying the Incorporated Plan and Development Plan Overlays.

IS THE PROPOSED CHILD CARE CENTRE GENERALLY IN ACCORDANCE WITH THE DEVELOPMENT PLAN?

23 Having made the finding that the Outline Development Plans document dated 27 April 1994 is the approved development plan for the purposes of schedule 1of the Development Plan Overlay, I must now decide if the proposed child care centre is generally in accordance with the development plan as required by clause 43.04-1.

24 It is generally accepted that the following principles are applicable in deciding whether a use or development is generally in accordance with a permit of plan:

(a) General accordance is a question of fact to be judged on the facts and circumstances of the case, and

(b) The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".[4]

25 The Langwarrin Outline Development Plan includes conventional residential areas and low density residential areas. Sites for schools, pre-schools and infant welfare centres (existing and proposed) are shown in the residential areas but not in the low density residential areas. There is no reference at all to child care centres.

26 I do not consider that the identification of sites for schools, pre-schools and infant welfare centres is relevant to a consideration of where commercial child care centres may be established. I consider that commercial child care centres fall into a different category of use and the approved development plan simply does not descend to this level of detail.

27 I do not consider that for the present purpose the distinction between residential and low density residential areas on the Langwarrin Outline Development Plan is relevant either. I acknowledge that one of the purposes of the Residential 1 Zone is: In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs; and there is no similar purpose in the Low Density Residential Zone. However, these were not the same zones that applied when the Langwarrin Outline Development Plan was first adopted in 1994. I do not consider that the designation of areas as residential and low density residential in the ODP implies anything about the uses that may locate in these areas. Rather, I consider the distinction relates simply to differences in subdivision lot size and dwelling density.[5]

28 With changing demographic patterns and increased rates of participation by women in the work force, the social need for child care has grown. This need is being met through a proliferation of commercial child care centres. Many such centres choose to locate in residential areas because of the nature of the use and the fact that they are serving local community needs. In my view, child care centres are part and parcel of residential areas. They meet a community need that is directly related to residential use and development in much the same way as schools and kindergartens. As such, I consider that a child care centre being located in a residential area, even a low density residential area, can be said to be generally in accordance with the development plan provided there are no specific locations otherwise shown for the location of such facilities. Whether the particular location proposed is suitable having regard to its merits and other policy considerations that may exist, is a question to be decided when the application for planning permit is decided.

29 I therefore find that the child care centre proposed in the present case is a use and development that is generally in accordance with the Langwarrin Outline Development Plan. Accordingly, it is open to the council to grant a permit for it in accordance with clause 23.04-1 of the Development Plan Overlay.

30 This matter will now be referred back to Member Hewet to complete his determination of the application for review.

[1] Permit No 040953 issued on 21 April 2006. The permit allows use and development of the land for a child care centre, with associated car parking, landscaping, the removal of native vegetation; and the use of the balance of the land for the purpose of animal keeping, all in accordance with the endorsed plans.

[2] See paragraph 1.0 Development Plan Overlay - Schedule 1 (Carrum Downs, Langwarrin and Baxter Outline Development Plans)

[3] Prepared by Department of Infrastructure, now Department of Sustainability and Environment, in January 2003.

[4] Canet v Brimbank CC [2003] VCAT 13 at [44]

[5] One of the uses of the Outline Development Plans, amongst other things, is to assess applications for subdivision and applications for multi dwelling proposals. See para 142