Jocelyn Meadows Pty Ltd v Casey CC [2004] VCAT 2627 (17 December 2004)

VCAT REFERENCE NO. P979/2004, P1857/2004 & P1858/2004

Sections 77 and 149(1) and 149B of the Planning and Environment Act 1987; Casey Planning Scheme; Business 2 Zone; Development Plan Overlay; Schedule 8; Fountain Gate Activity Centre; Adoption of Development Plan; Structure Planning; Strategic Planning; Restricted Retailing; Office; Business Park.

Nos. 60S, 77-89 and 80 Victor Crescent, Narre Warren

[2004] VCAT 2627

1

In Application P1857/2004 the decision of the responsible authority to adopt the Fountain Gate Narre Warren CBD Development Plan 6 July 2004 as a development plan under the Development Plan Overlay in the Casey Planning Scheme is affirmed.

2

Application P1858/2004 is dismissed.

3

In application P979/2004 the decision of the responsible authority is affirmed. The Tribunal directs that a permit must not be granted.

4

No order as to costs.

Mr A Southall QC and Mr N Tweedie of counsel instructed by Macpherson & Kelly. Evidence was given by:

•

Phillip Borelli, town planner, of SJB Planning Pty Ltd

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Robert Papaleo, strategic planner and property economist, of Charter Keck Cramer

Statements of evidence by Stephen Hunt, traffic engineer and Alan Wyatt, landscape architect, were filed and served and no party sought to cross-examine these witnesses.

Mr G Garde QC instructed by Ms T Cincotta, solicitor of Best Hooper solicitors. Evidence was given by:

•

Roz Hansen, town planner and urban geographer, of Hansen Partnership

•

Rober Gibbons, urban economist and planner, of SGS Economics and Planning Pty Ltd

Mr M McM Wright QC and Ms S Porritt of counsel. Evidence was given by:

•

Andrew Biasci, town planner, of Contour Consultants

•

Robert Milner, town planner, of Coomes Consulting Group

•

Jeffrey Armstrong, economist, of Urbis JHD

1 These three applications all involve the Fountain Gate Activity Centre, Narre Warren. Fountain Gate Activity Centre is the focus for commercial, retail and restricted retail activity in the City of Casey and more broadly within the south eastern growth area. It is listed within Melbourne 2030 as one of 25 Principal Activities Centres within Melbourne.

2 The three applications are brought by Jocelyn Meadows Pty Ltd, one of the main landowners at Fountain Gate. They are opposed by Casey City Council and Westfield Limited, which is one of the other main landowners. Application for Review No. P979/2004 is made under Section 79 of the Planning and Environment Act 1987 ("the Act") against the failure of the Casey City Council ("the Council") to determine permit application no. 811/03 within the prescribed time. The permit application involves the use and development of the subject land for an integrated development of 27 restricted retail tenancies having a total floor area of 27,598m2, associated car parking, loading bay areas, landscaping and signage.

3 Applications for Review P1857/2004 and P1858/2004 are made under Sections 149 and 149B of the Act in relation to a Development Plan adopted by the Council on 6 July 2004 under the Development Plan Overlay (Schedule 8 Commercial Areas) which applies to the entire area of the Fountain Gate Activity Centre. The Applications relate to the validity of the Development Plan and, in summary, respectively seek review of the Council decision to adopt the 2004 Development Plan and a declaration that the Council's decision to adopt the 2004 Development Plan is invalid.

4 Our decision is that the 2004 Development Plan was validly adopted and should not be changed, and that a permit should not be granted.

•

The first section records a number of procedural matters arising during the course of the Hearing.

•

The second section sets out the Tribunal's reasons in relation to Applications P1857/2004 and P1858/2004. The Tribunal's decision in relation to the Section 149B application is made by Deputy President Gibson alone.

•

The third section sets out the Tribunal reasons in relation to Application P979/2004. However the analysis of the evidence and the issues discussed are also relied upon in the second section of the Tribunal's reasons relating to the other applications.

•

The final section briefly deals with an application for costs made by Westfield.

SECTION 1: PROCEDURAL MATTERS

6 At the commencement of the Hearing, Mr Wright sought leave for Westfield, to be joined as a party to the proceedings. After hearing submissions from the parties, for reasons given orally at the Hearing, the Tribunal ruled that Westfield, Fountain Gate ("Westfield") would be joined as a party pursuant to sub-sections (a)(b) & (c) of section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998.

7 Mr Southall sought leave to substitute the plans submitted with permit application no. 811/03 with two sheets marked as 22 June 2004. There being no objection, the Tribunal granted leave to substitute the plans in accordance with the provisions of Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

8 The Presiding Member drew attention to the circumstance that an objector, Mr Tsoulos, appeared from the documentation on the files to not have been sent notice of the Hearing. He had filed a statement of grounds in response to the circulation of amended (now substituted) plans. He was not represented at the Hearing and no further correspondence had been received. After consideration of this matter, including submissions by the parties, the Tribunal did not rule on whether he would be joined as a party, but undertook to arrange for the Tribunal registrar to contact Mr Tsoulos. The parties agreed to that course of action. Contact was made and the Tribunal was advised that he was advised of the proceedings. Mr Tsoulos subsequently did not attend personally or by a representative and his written submission has been taken into account by the Tribunal.

SECTION 2: APPLICATIONS UNDER SECTIONS 149 AND 149B

9 Application P1857/2004 is made pursuant to section 149(1) of the Act on the following grounds:

The 2004 Development Plan is contrary to the orderly and proper planning of the land to which it purports to apply, and in particular the subject land in that:

a

It is in consistent with the Casey Planning Scheme and the Existing Development Plan;

b

There is no strategic basis for the location of the nominated precinct boundaries or the intended use and development within the boundaries.

c

There is no economic basis for the nomination of the subject land as a preferred location for office and residential uses;

d

It seeks to prohibit the subject land being developed for its current highest and best use, namely as a centre for restricted retail and trade supplies;

e

It represents a significant and unjustifiable departure from the objectives and content of the Existing Development Plan;

f

Its objective that the subject land be developed for office employment and living opportunities is not realistically achievable, and will unreasonably restrict the proper development of the subject land; and

g

It has been developed and adopted without any or any proper strategic analysis, and without any or any reasonable regard to the interests and views of affected landowners, or third parties whose rights and interests are affected by it.

10 The Tribunal has jurisdiction to review a development plan adopted under the Development Plan Overlay given that the development plan is required to be to the satisfaction of the responsible authority. This gives rise to a right of review under section 149(1)(a) of the Act.

11 Application P1858/2004 is made pursuant to section 149B of the Act on similar grounds to Application P1857/2004 and the applicant seeks the following declarations:

1. A declaration that the decision of the responsible authority on 6 July 2004 to adopt the Development Plan is invalid.

2. A declaration that the Existing Development Plan is the approved development plan under clause 43.04 of the scheme for the subject land.

3. Such other declarations or orders as the Tribunal considers appropriate.

4. That the Casey City Council pay the costs of this application.

Strategic planning framework for Fountain Gate Activity Centre

12 Fountain Gate Activity Centre is a very large area of 240 hectares, which is approximately one and a half times the size of the entire Melbourne CBD. The land is included in several zones but the two main ones are the Business 1 Zone applying to the Westfield Shopping Centre and the Business 2 Zone which applies to most of the rest of the land, including the subject land. A Development Plan Overlay (DPO8) applies to the whole of the activity centre and restricts the issue of a permit for use and/or buildings and works, unless a development plan has been prepared to the satisfaction of the responsible authority.

13 The Fountain-Narre Warren District Centre Structure Plan was approved by Casey City Council as the development plan under clause 43.04 of the Development Plan Overlay ("2001 Development Plan") on 18 September 2001. The 2001 Development Plan identified the preferred land use distribution pattern within the Activity Centre area nominating 10 different activity precincts. A plan of these precincts is included in Appendix 1. The subject site was located within Precinct 5: Berwick Business Park. The precinct was identified as a mixed use area comprising office, commercial, peripheral sales, limited retailing, service business, recreation, residential and special uses. The principle objectives of this precinct were:

•

Mixed use area comprising office, commercial, peripheral sales, limited retailing, service business, recreation, residential and special uses.

•

To promote the precinct as a major mixed use area, providing a range of commercial, office, service business, recreation, residential and special use activities.

•

To promote the progressive development of the precinct, recognising the important land resources in the precinct required to accommodate future expansion of the District Centre and taking advantage of major road exposure to provide opportunities for major development.

•

To ensure the development of the precinct is successfully integrated with other areas of the District Centre.

•

To promote the development of the area as a major office activity node.

•

To encourage the development of special commercial and community uses that may require a more extensive land area.

•

To limit retail development in the precinct to the extent that the same does not conflict with retail developments in Precincts 1 and 8

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To promote the development of the Retarding Basin as a focal passive open space area.

•

To provide for a variety of visitor and tourist accommodation.

14 During 2003, in line with the directions of Melbourne 2030, the Council undertook a review of the Fountain Gate Narre Warren District Centre Structure Plan, which had first been approved in 1993. The purpose of this process was to prepare a vision for the Fountain Gate Narre Warren CBD[1] to guide the planning and development of the CBD and its environs over the next 30 years. Key stakeholders, including the applicant, were involved in the process of developing the structure plan. Mr Morrie Schwartz of Jocelyn Meadows was a member of a steering committee of stakeholders convened by the Council, which included representatives of major landowners in the Fountain Gate Activity Centre as well as representatives from the Council, DOI, DSE and Vic Roads. There is evidence that he attended some of those meetings where the draft structure plan was discussed and participated in some workshops. There was considerable community consultation during the review process, which included distribution of resident surveys, various workshops, displays at Westfield, and specific group consultation.

15 The draft Fountain Gate Narre Warren CBD Structure Plan was placed on exhibition for one month from 1 August to 19 September 2003. Eighteen submissions were received as a result of the exhibition process. Several meetings were held by Council representatives with Mr Schwartz. As a result of changes made to the draft structure plan, on 2 March 2004 the Council resolved to exhibit for 21 days the Fountain Gate Narre Warren CBD Final Structure Plan with the intention that the major part of the structure plan would become the proposed new development plan under DPO8 in the Planning Scheme. Notification of the exhibition period included public notice in local papers, direct notification to previous submitters, relevant agencies, all land owners within the study area and residential areas around the study area (approximately 3000 landowners) and an open day at the Council to view plans with Council officers present. As a result, 5 submissions were received and 12 persons attended the open day. The submissions included ones from Westfield and Jocelyn Meadows objecting to certain aspects of the final structure plan.

16 Having reviewed the submissions received, the Council passed a series of resolutions on 6 July 2004, including:

i That Council adopts the Fountain Gate - Narre Warren CBD Structure Plan, 6 July 2004.

ii That Council adopt the Fountain Gate - Narre Warren CBD Development Plan, 6 July 2004 as the adopted Development Plan under clause 43.04 of the Casey Planning Scheme, for all areas of the CBD except Precincts J, N and O.

iii That the existing Structure Plan remain as the Development Plan for Precinct J under clause 43.04 of the Casey Planning Scheme.

17 The 2004 Development Plan is the same in substance as the Fountain Gate - Narre Warren CBD Structure Plan.

18 There are a number of differences between the 2001 Development Plan and the 2004 Development Plan. For the purpose of these applications, the main difference involves splitting what was Precinct 5 in the 2001 Development Plan into Precincts E and F in the 2004 Development Plan. A plan of the Precincts in the 2004 Development Plan is included in Appendix 2. Precinct F is further divided into the eastern half and the western half. The subject land is included in the eastern half of the Business Park and Living Precinct. The relevant extract from the 2004 Development Plan describing the goal, appropriate activity/elements and design principle/outcomes for the eastern half of the Business Park and Living Precinct is set out below.

Ø Office, restaurant, business / personal services, child care, gym, hotel, residential, very limited retail (small neighbourhood centre, 4,000m2 and no restricted retail).

Ø Restaurants, business/personal services, limited retial developed around a 'town centre' - urban density.

Ø Create corporate boulevards

Ø Create corporate address to highway.

Ø Create finer grain road network

Ø Create Eastern Town Centre in mixed-use zone that embraces a variety of uses, ie. Office, school, motor vehicle sales, accommodation, service shops, restaurants/cafes, housing etc.

Ø Estern Town Centre to focus on a range of uses coming together.

Ø Mixed-use buildings with multi-levels encouraged around Eastern Town Centre.

Ø Eastern town Centre to be a focus for bus transport facilities.

Ø Eastern Town Centre to be complimented by mixed-use street leading to Town Centre, including shops, cafes and support services for people working and using Eastern Precincts.

Ø Potential for small retail node at the eastern town centre to be linked to the delivery of office development.

Ø Provide major signalised intersection as access to precinct and good public transport access and connections to school site.

Ø Buildings to be encouraged up to building alignment of street with no setbacks.

Ø Car parking preferably located behind buildings or at least beside buildings with future provision to build deck car parking behind.

Ø Avoid individual tenant signage identity to freeway. Provide overall precinct branding identity to freeway via co-ordinated structure.

Ø Provide pedestrian connections through precinct to central open space. Avoid roundabouts and install street crossings, Bus stops to be designed into street system - not added on.

Ø Encourage residential uses and positively create amenity within precinct for reasons of 'liveability'.

Ø Allow for finer grain road network and an intensification of activity.

19 Having now adopted the 2004 Fountain Gate Narre Warren CBD Structure Plan, the Council intends to amend the Casey Planning Scheme. The proposed amendment will implement the structure plan by including it in the Municipal Strategic Statement, rezone land and replace the Development Plan Overlay over the Fountain Gate Activity Centre with an Incorporated Plan Overlay. This amendment has not yet been prepared or exhibited.

20 The fundamental aspect of the 2004 Development Plan which has given rise to these applications is the added emphasis on the role of Precinct F for office purposes and the explicit statement that there should be no restricted retail in this precinct. This contrasts with the 2001 Development Plan which, whilst promoting development of the area as "a major office activity node", envisaged peripheral sales as among the primary uses of this mixed use area.

21 In fact, restricted retail (formerly referred to as "peripheral sales") has been the predominant use and development that has occurred in Precinct 5. As discussed in section 3 of our reasons for decision, the amount of floor space now developed for restricted retail well exceeds the amount of 30,000m2 of freestanding peripheral sales that was planned for in the 2001 Development Plan. By contrast, there has been little progress in the provision of office space. Only one office building has been constructed compared to the 50,000m2 or more of the office space planned for in the 2001 Development Plan. As discussed in section 3 the market is not yet ripe for offices in the Fountain Gate Activity Centre. The applicant's view is that it never will be whereas the Council's view is that there will be a market in the longer term and this market can be fostered by ensuring there is adequate land available to accommodate such use when the time is ripe.

22 The issues at stake here are a wish on the part of the applicant to further capitalise on a booming restricted retail market and current demand for this type of floor space, and the desire by the Council to protect the opportunity to establish a major business park within the Fountain Gate Activity Centre even though this objective may not be realised in the short term.

23 In seeking to challenge the 2004 Development Plan, important issues are raised about the role of the Tribunal in dealing with applications to review development plans, particularly when an application seeks to subvert or overturn a strategic direction of planning for the municipality which is contained within the development plan.

Role of the Council and the Tribunal regarding development plans

25 In preparing and adopting the Fountain Gate Narre Warren CBD Structure Plan 6 July 2004, the Council is acting as a planning authority. In adopting the Fountain Gate Narre Warren CBD Development Plan 6 July 2004 as a development plan pursuant to clause 43.04 of the Casey Planning Scheme, the Council was acting as a responsible authority. In the application under section 149 of the Act (P1857/2004) the Tribunal is therefore reviewing the actions of the Council as a responsible authority. Similarly, in the application for declarations under section 149B of the Act, the Tribunal is being asked to consider the actions of the Council as a responsible authority in relation to the 2004 Development Plan. The actions of the Council in its role as a planning authority in adopting the Fountain Gate Narre Warren CBD Structure Plan are not being challenged.

26 The Planning and Environment Act 1987 makes a clear distinction between the role and function of a planning authority, on the one hand, and a responsible authority on the other hand. The duties and powers of planning authorities are set out in section 12 of the Act as follows:

12. What are the duties and powers of planning authorities?

(a) implement the objectives of planning in Victoria;

(b) provide sound, strategic and co-ordinated planning of the use and development of land in its area;

(c) review regularly the provisions of the planning scheme for which it is a planning authority;

(d) prepare amendments to a planning scheme for which it is a planning authority;

(e) prepare an explanatory report in respect of any proposed amendment to a planning scheme.

(2) In preparing a planning scheme or amendment, a planning authority -

(a) must have regard to the Minister's directions; and

(aa) must have regard to the Victoria Planning Provisions; and

(ab) in the case of an amendment, must have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme ; and

(b) must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment ; and

(c) may take into account its social effects and economic effects.

(b) do all things necessary to encourage and promote the orderly and proper use, development and protection of land in the area for which it is a planning authority; and

(c) take any steps and consult with any other persons it considers necessary to ensure the co-ordination of the planning scheme with proposals by those other persons.

27 The duties of a responsible authority are set out in section 14 of the Act and they relate primarily to the administration and enforcement of the planning scheme and implementing the objectives of the planning scheme.

28 There is a long history of strategic planning for the Fountain Gate Activity Centre. The Tribunal was given copies of numerous studies, strategies, structure plans, action plans, visions, issues, papers and the like which have been produced as part of the strategic planning for the activity centre dating back to the early 1990's. Needless to say, the concepts have been refined over time but we do not consider there has been any radical change in direction. With respect to the subject land, it has always been included in a precinct earmarked as a business park and intended to be a major office activity node. The main difference lies in the means of implementing this objective. Far more detailed design principles and outcomes than in the past are identified in the Fountain Gate Narre Warren CBD Structure Plan and 2004 Development Plan and the implementation methods quite specifically include no further restricted retail. Instead, Precinct E is now identified as the restricted retail precinct. This was formally part of Precinct 5 and is where most of this type of development has occurred. Precinct F, which was formally also part of Precinct 5, includes considerable vacant land as well as some other uses such as a school, child care centre, car showrooms and serviced apartments and a large retarding basin.

29 We consider it is entirely appropriate and in accordance with its duties as a planning authority for the Council to monitor and review its strategic planning and to make changes to its structure plan where necessary to better implement its strategic planning objectives.

30 We accept that the Council appears to have been fairly relaxed in the approvals it has granted at Fountain Gate so far as restricted retail is concerned. It has issued permits well in excess of 30,000m2 east of Narre Warren Road North, which is the floor space area referred to in the 2001 Structure Plan/Development Plan, including a recent permit in respect of its own land.[2] However, we also accept that if the Council's long term objective to establish an office park in the area east of Narre Warren Road North is to be achieved, a line in the sand needs to be drawn with respect to further approvals of restricted retail on the remaining undeveloped land in this location. Evidence was given on behalf of the Council that to allow further restricted retail in this area would preclude the opportunity to establish an office park there. For the reasons set out in , we agree with this evidence.

Planning authorities and responsible authorities are responsible for the effective planning and management of land use and development in their districts for the broad interests of the community, through the preparation of strategic plans, statutory plans, development and conservation plans, development contribution plans, and other relevant plans to achieve the objectives of the Act.

35 Structure planning for activity centres is supported by Melbourne 2030. The broad objectives of the State and local planning policy framework will normally drive the preparation of a structure plan. However, the preparation and adoption of a strategy or structure plan for a particular area by a planning authority is necessary before its detail can be incorporated into or implemented by an amendment to the planning scheme.

36 We note that the Practice Note describes structure planning as -

....the process of developing a framework for the integrated development of an activity centre. .....

The process should produce both a framework articulating how the centre will develop, and the actions needed to realise that framework.

A structure plan will usually require a planning scheme amendment as one of its implementation mechanisms.

37 We find that the process followed by the Council in preparing the Fountain Gate Narre Warren CBD Structure Plan and then adopting it on 6 July 2004 was a responsible, comprehensive and consultative structure planning exercise, which was undertaken in accordance with the guide provided by the Practice Note and as encouraged by the Government in Melbourne 2030.

38 Given that it is the role of the Council as a planning authority to carry out strategic planning for land in its area, our view is that the Tribunal should be very cautious in intervening in the strategic planning function of a planning authority.

39 In the present applications, the applicant is challenging not the structure plan but the development plan and the action of the Council as responsible authority in adopting that development plan. In acting as a responsible authority, we consider the Council was entitled to consider the Fountain Gate Narre Warren CBD Structure Plan as it is a strategic plan which has been adopted by a municipal council within the meaning of section 60(1)(b)(ii) of the Act. Clause 11.01 of the planning scheme would also require effect to be given to it in the preparation of a development plan. We therefore consider that once the Council adopted the Fountain Gate Narre Warren CBD Structure Plan it is bound to give it considerable weight in any decisions it makes as a responsible authority. We consider the Tribunal is bound to give it similar weight.

40 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. Strategic planning is the function of the council as a planning authority. Normally it will involve, formally or informally, consultation and participation by a wide range of stakeholders and the community. The review process provided by of the Act is not designed to engage the participation of parties who would normally expect to be involved in the strategic or structure planning process. Therefore, whilst it is not possible to be prescriptive due to the wide variation in types of development plans, we would say that if a development plan is based on a strategy or structure plan properly adopted by the planning authority, the Tribunal, in reviewing the actions of a council acting as responsible authority, should be reluctant to intervene in what is essentially a strategic planning exercise on the part of a planning authority.

The plan is a de facto planning scheme amendment

41 It was submitted on behalf of Jocelyn Meadows that the policies and objectives contained in the 2004 Development Plan represent a fundamental change to existing planning policy for the subject land, the precinct and the Business 2 Zone of a kind that can only be properly and fairly implemented through a formal planning scheme amendment. Mr Southall placed great emphasis in his arguments to the depiction of the Development Plan as an "interim" measure. This was a term used in a report of the Council's Planning Committee considering the permit application in this case in October 2003, which said:

The adoption of the new structure plan as the approved development plan is considered an interim measure until such time as the new structure plan can be implemented via a Planning Scheme Amendment that would result in the incorporation of the plan under the Incorporated Plan Overlay.

It is an extraordinary and improper procedure...for a Responsible Authority to seek to implement a de facto amendment to its planning scheme, by purporting to adopt pursuant to the overlay control in clause 43.04 as an "interim measure" a "development plan", being a document that, in reality, is and always has been prepared to be an incorporated plan, requiring a planning scheme amendment to implement. It is submitted that this would be so regardless with the merits of that plan.

43 Several witnesses commented on the "unusual" use of the Development Plan Overlay in the context of implementing the strategic planning for Fountain Gate Activity Centre. It was suggested that the structure plan, which forms the basis of the development plan under the overlay, better meets the criteria for an incorporated plan set out in the VPP Practice Note on applying the Incorporated Plan and Development Plan Overlays (January 2003) and that the Incorporated Plan Overlay would be a preferable means of implementing the structure planning for Fountain Gate Activity Centre.

44 In many respects we would agree that the use of the Development Plan Overlay is not the best VPP tool to use for the structure planning of an activity centre of the size and status of Fountain Gate. Nevertheless, whilst it may not be the most appropriate tool, it is a valid option. The Development Plan Overlay exists within the Casey Planning Scheme and was approved by the Minister. The 2001 Structure Plan was adopted as a development plan under that overlay and no challenge is being made to the validity of either the Development Plan Overlay or the 2001 Development Plan.

45 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. In the case of the Fountain Gate Activity Centre, both Jocelyn Meadows and Westfield have lodged separate applications to review the 2004 Development Plan pursuant to section 149(1) of the Act.

46 There is also a lack of transparency associated with development plans. As the Tribunal noted in Burnside Properties Pty Ltd v Melton City Council [2000] VCAT 2326, a development plan is a powerful instrument:

[320] The impact of an approved Development Plan under the Development Plan Overlay on any decision to grant a permit is more than exemption of the permit application from all third party rights. If a detailed Development Plan has already been approved, and the permit application is consistent with it, the Development Plan will be a powerful argument in favour of the issue of a permit. The absence of third party rights specific to the Development Plan procedure by which a person's interests may be adversely affected, plus the impact of approval of a Development Plan on a permit application, plus the exemption from third party rights applying to the permit application add up to a need to take great care in the Development Plan approval procedure.

47 The need to take great care in the development plan approval procedure referred to by the Tribunal in Burnside is compounded by -

[319]....the difficulty arising from the Development Plan Overlay concept of making the effect of the regulatory control depend on an instrument the nature of which is not clear defined in the Planning Scheme, and which requires an approval for which there is no statutory scheme of rights.[3]

48 However, notwithstanding these features of the Development Plan Overlay and the apparent ease with which such a powerful instrument as the development plan can be approved and changed, it remains a valid planning option available within the Victoria Planning Provisions. It has been used in respect of the Fountain Gate Activity Centre and forms part of the Casey Planning Scheme, thus it cannot be open to challenge in these proceedings. Provided the development plan meets the requirements of clause 43.04-3 and has been validly adopted, the fact that its ambit is so far reaching is not relevant. The decision to use the Development Plan Overlay to control the structure planning at the Fountain Gate Activity Centre was a decision made by the Council as a planning authority when the new format Casey Planning Scheme was introduced and was approved by the Minister. That is not a decision which the Tribunal can alter. Nor is it correct to say that the 2004 Development Plan represents a "de facto planning scheme amendment" and on this basis should be rejected by the Tribunal.

49 The 2004 Development Plan serves the same function as the 2001 Development Plan. It changes certain outcomes but that in itself is no reason for rejecting the 2004 Development Plan. It is one of the features of the Development Plan Overlay that development plans may be changed without a planning scheme amendment, unlike incorporated plans under the Incorporated Plan Overlay.

50 We place no weight on the description on a Council planning committee report which refers to the adoption of the Structure Plan as the development plan being "an interim measure". We consider that this term does no more than describe the Council's intentions to introduce a planning scheme amendment sometime in the future and possibly change the Development Plan Overlay to an Incorporated Plan Overlay. It does not mean that the 2004 Development Plan is in any way "interim". The Development Plan Overlay is the control applying to the Fountain Gate Activity Centre until such time as the planning scheme is amended. It is not an interim control and likewise, the 2004 Development Plan is the adopted or approved plan under the overlay until such time as another development plan is approved.

51 Our conclusion on this point is that the Development Plan Overlay is a valid statutory control in the Casey Planning Scheme. The overlay provides for the approval of development plans to the satisfaction of the responsible authority. The approval of development plans or changes to them do not require a planning scheme amendment. The nature of the overlay provisions is such that a development plan is a very powerful instrument in determining the use and development of land that may occur within the area affected by the overlay. There is nothing within the Act or the planning scheme that would suggest a development plan may not cover the range of matters included in the 2004 Development Plan; that subsequent development plans may not change the provisions of earlier development plans; or that this cannot be done without formal process. Indeed, this is one of the features of the Development Plan Overlay. We therefore see no reason why the 2004 Development Plan should be rejected on the basis of its ambit, the fact that it changes policy or the fact that the Council might amend the Casey Planning Scheme in the future.

52 The fact that there is no prescribed "scheme of rights" or opportunities for public participation in the adoption of a structure play by a planning authority or the approval or amendment of a development plan by a responsible authority does not thereby negate any informal consultation or opportunities to be heard prior to adoption of a development plan. The applicant argues that the responsible authority did not accord procedural fairness to the applicant or other persons whose interests might be affected by the adoption of the development plan, prior to adopting the plan. It relies upon this argument as grounds for seeking a declaration under section 149B that the decision of the responsible authority to adopt the 2004 Development Plan is invalid.

53 In advancing this argument, the applicant is drawing a distinction between adoption of the 2004 Development Plan and adoption of the Fountain Gate Narre Warren CBD Structure Plan. There was a comprehensive process of consultation in connection with the preparation and final adoption of the structure plan, which the applicant had many opportunities to participate in and indeed did so. However, the point being taken by the applicant is that it was not until 2 March 2004 that it was aware of the intention of the responsible authority to adopt the Structure Plan as a development plan and that the responsible authority was not going to proceed to implement the structure plan by way of a planning scheme amendment. It was submitted that the applicant had only 21 days (during the public exhibition of the final version of the structure plan) in which to lodge an objection and was not offered any other opportunity to participate in the process of the adoption of the development plan. According to Mr Southall:

In all the circumstances, it is submitted that procedural fairness to the applicant demands that the 2004 development plan be subjected to the same process as 2004 structure plan, namely the statutory process specified under the Act for a planning scheme amendment prior to its implementation and adoption.

54 We can consider that this submission misconceives the nature of the structure plan. The structure plan does not require a planning scheme amendment to validate it in any way. The Fountain Gate Narre Warren CBD Structure Plan has been adopted by the Council and is now an adopted strategic plan within the meaning of section 60(1)(b)(ii) of the Planning and Environment Act 1987. An amendment to the planning scheme may be required in order to incorporate it within the scheme or implement it through changes to zones, overlays and the like, but this will not change its status as an adopted strategic plan of the council. In a planning scheme amendment/panel context, whilst it may be open to a submitter to challenge the basis of a strategic plan that an amendment proposes to implement or incorporate into the planning scheme, such submissions strictly speaking relate to the planning scheme amendment and the issue of whether it is a suitable strategy or policy to be included in the planning scheme. They cannot affect the status of the strategic plan itself as an adopted structure plan or strategic plan of the Council. On this basis, we therefore reject the applicant's contention that the Fountain Gate Narre Warren CBD Structure Plan is in any way a "draft" council plan.

55 We consider that the distinction which the applicant is drawing between the Structure Plan and the 2004 Development Plan in terms of the opportunity to comment on their content is pedantic given their common content and the many opportunities to participate in development of the Structure Plan enjoyed by the applicant. However, even accepting the distinction, we nevertheless consider that the applicant had ample opportunity to express its views about the proposed adoption of the structure plan as a development plan between 2 March 2004, which was when it became aware of this proposed course of action, and 6 July 2004 when the 2004 Development Plan was adopted by Council. That is a period of 4 months. This was ample opportunity in which to make a submission or seek a meeting with the Council, which as a key landowner and stakeholder in the Fountain Gate Activity Centre would have been open to the applicant if it had so wished. We do not accept that the applicant was constrained by the 21 day exhibition period.

2004 Development Plan purports to prohibit a discretionary use

58 The essential concern which the applicant has with the 2004 Development Plan is that "it purports to prohibit the issue of a permit for any restricted retail use whatsoever on the subject land, and indeed any other land within the Business Park and Living Precinct." It was submitted by Mr Southall that:

The 2004 Development Plan purports to implement to local policy which is contrary to orderly and proper planning and the underlying philosophy of the VPP planning schemes. It is not a legitimise use for policy to purport to prohibit a land use that is discretionary under the Primary Zone control ....

Schedule 8 to clause 43.04 provides that a development plan should show "the preferred land uses and land use objectives for different precincts within the plan". There is a clear and significant difference between expressing a "preference" for a particular land use, and imposing prescriptive and prohibitive control over land use: the latter is not, it is submitted, the proper function of a local policy, a structure plan, or a development plan.

59 We consider that this argument does not accurately represent the effect of the provisions regarding restricted retail in Precinct F in the 2004 Development Plan. First, a development plan cannot change the scope of the discretion provided in the zone applying to the land. If a use requires a permit under the zone, the overlay cannot exempt it from the need for a permit. Nor can it prevent a permit from being applied for. Therefore it is wrong to say that the 2004 Development plan "prohibits" a discretionary use.

60 The provisions of clause 43.04-1 require that a permit granted must be generally in accordance with the development plan. The wording of the precinct guidelines for the Business Park and Living Precinct (western half and eastern half) make it clear that restricted retail is not an appropriate activity. It was accepted by all parties that a restricted retail development of the scale proposed by the permit application in this case would not be generally in accordance with the 2004 Development Plan. To that extent restricted retail would not be permitted. However, there may be circumstances where a minor addition to an existing restricted retail premises or in conjunction with some other use might be appropriate and might still be considered to be generally in accordance with the development plan. In our view, such cases should be considered on their merits and the discretion remains under the zone provisions to consider any such application.

61 In interpreting the expression "generally in accordance with", the principles identified by the Tribunal in Canet v Brimbank City Council [2003] VCAT 13 will apply, namely:

a

General accordance is a question of fact to be judged on the facts and circumstances of each 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".

62 We consider it is entirely appropriate for a development plan to indicate what uses may be preferred, and conversely what uses may be discouraged, within certain areas. If a development plan cannot do this, one of the main reasons for applying a Development Plan Overlay would be lost. The range of uses that are permitted under most zones is extremely broad. This is a deliberate feature of the zones in the Victoria Planning Provisions. The purpose of a Development Plan Overlay is to guide future use and development in an area in order to implement the State and Local Planning Policy Frameworks within the planning scheme. Under clause 43.04-3 this is done by describing in a development plan "the proposed use and development of each part of the land". This enables uses to be guided to appropriate precincts and development to be guided into appropriate forms, which is precisely what the 2004 Development Plan does.

63 We therefore find that the precinct guidelines within the 2004 Development Plan, which indicate what activities are appropriate and those which are not appropriate within various precincts, are matters that a development plan may properly include. If a development plan includes uses that are discouraged or not appropriate in certain areas, this does not of itself prohibit such uses in those areas. Rather, any application must be considered on its merits as to whether it is generally in accordance with the development plan.

The intent/effect of the 2004 Development Plan is to sterilise the subject land

64 In advancing this argument, the applicant focused on the evidence of Mr Papaleo that "new office development at any scale will not occur in (the CBD) in the foreseeable future" and that "there exists no justification to support the assertion that there is any underlying or latent demand for office space at the .... CBD". Mr Southall referred to the evidence on behalf of the Council that the intent and effect of the Fountain Gate Narre Warren CBD Structure Plan is to preserve the subject land and other land as a substantial land bank for future office development. He argued that it is contrary to proper and orderly planning for the responsible authority to decide "unilaterally (and arbitrarily)" that the subject land should be effectively sterilised or "land banked" for an indefinite period, and cannot be used or developed in a way which:

•

Accords with State and Local Policy to encourage large commercial developments in and around activity centres;

•

Is permitted under the zone control;

•

Meets an existing current demand; and

•

Will immediately "generate more jobs in an activity centre and transform a large area of vacant land to a new development".

65 In section 3, we examine the merits of these contentions and find that they cannot be relied upon to support the particular planning permit application. We do not consider the proposal accords with State or local policy, and just because something is permitted under a zone control does not mean that it should be allowed.

66 As a matter of principle, we consider it is open to a planning authority to identify land for a future use to meet a strategic planning objective even though the market may not yet be ripe for such a use or development. Structure planning by its very nature will contain long term objectives. We do not consider the fact that sites may remain vacant or underutilised for a period of time is in itself a reason to approve something less than demanded by relevant objectives. In any event, we do not accept that just because there is a current demand for restricted retail floor space in Fountain Gate Activity Centre but this type of use is not considered appropriate in Precinct F, that this necessarily renders the subject site sterile. Apart from office, there is a range of other uses that are considered appropriate in the Business Park and Living Precinct. Residential is clearly one.

67 We do not accept the argument that because restricted retail may be currently perceived to represent the highest and best use of the subject land, this is a reason to reject the 2004 Development Plan. Sometimes there will be conflict between the current highest and best use of land in economic terms and long term strategic planning objectives. Indeed, in part, the purpose of strategic or structure planning is to counter short term outcomes that may be produced by a highest and best use approach, by substituting a longer term view where this is in the broad interests of the community and in the interests of sustainable development for the benefit of present and future generations (see clause 11.01 of the SPPF).

68 This argument arises in relation to the application for declaration under section 149B. The applicant submits that the responsible authority, taking into account all relevant considerations and disregarding all irrelevant considerations, could not, having regard to the provisions of the Casey Planning Scheme, validly have adopted the 2004 Development Plan. It was submitted that in adopting the development plan, the responsible authority failed to take into account the following relevant considerations:

•

The zoning of the subject land as Business 2 Zone;

•

State and Local Policies that support restrictive retail development on the subject land;

•

The lack of current demand for office use, the uncertainty of future demand, and the availability of other land in the Fountain Gate Activity Centre for such development;

•

The lack of any pre-existing expert advice, data or research to justify or verify office floor space demand.

69 In response to these points we make the following observations. We do not consider that the zoning of the subject land is especially relevant in the context of the decision to adopt the 2004 Development Plan. Most zones within the Victoria Planning Provisions contain a wide range of uses that may be permitted. The zones contain the parameters of planning control but it is planning policy that will provide guidance about how decisions should be made within those parameters. As clause 31.01-2 of the planning scheme states:

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.

70 We examine further the nature of State and local policies that apply in section 3 and find that policy does not necessarily support restricted retail development on the subject land. Indeed, the most current expression of local policy is the Fountain Gate Narre Warren CBD Structure Plan adopted by the Council on 6 July 2004, which expressly discourages restricted retail in the Business Park and Living Precinct.

71 However, so far as the Business 2 Zone is concerned, we consider that this in fact supports the use of this precinct for offices as one of its purposes is:

"To encourage the development of offices and associated commercial uses."

Therefore we consider that so far as it is relevant, the 2004 Development Plan does have regard to the zoning of the subject land.

72 With respect to the contention that there is no expert advice supporting office floor space demand, existing or projected, we do not consider this is necessarily relevant in the decision by the Council to adopt the 2004 Development Plan for the following reasons. As noted earlier, the applicant is not challenging the Structure Plan. The Fountain Gate Narre Warren CBD Structure Plan contains quite clear strategic objectives about the future land use mix considered appropriate for the Fountain Gate Activity Centre. It is not always necessary that long term strategic objectives are based on economic analysis. They can be based on broader principles of community benefit and sustainable benefit. In the case of Fountain Gate Activity Centre, Melbourne 2030 seeks to encourage a broad mix of land uses in Principal Activity Centres. All the planning experts in this case agree that Fountain Gate is deficient in office use. We consider it is a reasonable strategic objective for a planning authority to wish to promote this type of land use within an activity centre of the size and status of Fountain Gate and which is part of a large growth corridor.

73 The requirements to review the planning scheme and MSS set out in sections 12 and 12A of the Act will provide opportunities to monitor the achievement of strategic objectives in the light of current and economic circumstances. If time proves that they contain strategic objectives, such as the provision of offices that are not likely to be achieved or that the protection of land for this purpose is having an adverse economic effect on the activity centre, the Council can review its strategy and change its structure plan in its capacity as planning authority.

74 The responsible authority though has an obligation to administer the planning scheme and implement objectives. In a situation where the Council, as a planning authority, has just adopted a new structure plan for an activity centre, we consider it is reasonable that, as the responsible authority, the Council will give due weight to that structure plan. We consider it would be inappropriate to retain a development plan under a Development Plan Overlay that reflects the provisions of a former structure plan when this would conflict with the most recently adopted structure plan. We therefore consider that in deciding whether to adopt the 2004 Development Plan, a relevant consideration would be the most recent expression of strategic planning intent for the Fountain Gate Activity Centre, which is the adopted Fountain Gate Narre Warren Gate CBD Structure Plan.

76 This argument also goes to the application for declaration under section 149B. It was contended by the applicant that the 2004 Development Plan is unreasonable and ultra vires in that it purports to prohibit the issue of a planning permit for restricted retail uses in the Business Park and Living Precinct of the Fountain Gate Narre Warren CBD.

77 We have addressed this argument previously and find that it is misconceived. We do not consider that the 2004 Development Plan is unreasonable or ultra vires for this reason.

78 The applicant also argued that the decision to adopt the 2004 Development Plan was a decision no responsible authority, acting reasonably, could have made.

79 The grounds advanced in support of this argument have all been considered previously except the one that the development plan is a significant departure from existing planning policy. We disagree with this. For the reasons discussed in section 3, we consider that the plan is a refinement of existing planning policy and seeks to implement broad strategic objectives for the Fountain Gate Activity Centre that have been pursued by the relevant planning authority since the early 1990's. The overall intent has always been to create a comprehensive mix of activities within the Fountain Gate Activity Centre. This is an objective that is also entirely consistent with Melbourne 2030. The area containing the subject land has always been earmarked as an office node. The move to curtail restricted retail in the area in the 2004 Structure Plan and Development Plan is a strategy to better achieve this objective. We consider that the decision to adopt the 2004 Development Plan was therefore a reasonable decision in all the circumstances and we reject the contention that it was a decision that no responsible authority, acting reasonably could have made.

80 It was suggested by the applicant that the 2004 Development Plan does not comply with the mandatory requirements of clause 43.04-3 as it does

not describe the proposed use and development of each part of the subject land.

81 We disagree. We consider that the 2004 Development Plan adequately describes the proposed use and development of each part of the land within the precinct guidelines. Description of the way in which development is to occur is supplemented by the urban design guidelines in particular, as well as the sections relating to the major and internal road networks, open space network and pedestrian network.

82 There are particular requirements for development plans in schedule 8 to the Development Plan Overlay. They require that the development plan should show:

• The existing and proposed road network.

• Preferred land uses and land use objectives for different precincts within the plan.

• Streetscape concepts including road reserve widths and building and/or landscaping setbacks.

The 2004 Development Plan includes all of these requirements.

83 We therefore find that the 2004 Development Plan complies with clause 43.04.

84 There was some argument at the hearing about whether the 2004 Development Plan was an amendment or a completely new development plan (ie. a transformation). We do not consider that the validity of the 2004 Development Plan can be questioned on this basis.

85 Clause 43.04-3 of the planning scheme provides that a development plan may be amended to the satisfaction of the responsible authority. In the present case, the 2004 Development Plan does not purport to be an amendment of the 2001 Development Plan. Rather, the 2001 Development Plan was repealed for all areas of the activity centre except for Precinct J. We do not consider there is any doubt about the status of the 2004 Development Plan as it applies to the subject land but the issue was explored at some length by Mr Wright on behalf of Westfield at the hearing. He put forward various scenarios about the appropriate planning policy that should be applied in the event that the 2004 Development Plan was not a valid development plan under the Development Plan Overlay and how the planning permit application should be assessed in those circumstances. For the sake of completeness we have considered those scenarios in section 3 of our reasons for decision.

86 Application P1858/2004 is an application under section 149(1) of the Act to review something that must be done to the satisfaction of the responsible authority, in this case preparation and adoption of the 2004 Development Plan. In exercising its review jurisdiction, the Tribunal must decide if, on the material before the Tribunal, the decision to adopt the 2004 Development Plan was the correct or preferable one. Based on the reasons set out above, we have concluded that it was. We therefore determine that the decision of the responsible authority should be affirmed.

87 Application P1858/2004 for declarations was made pursuant to section 149B of the Act. This decision is made by Deputy President Gibson alone pursuant to section 149B(3).

88 In making this decision I have had regard to the reasons set out in sections 2 and 3 of this decision and the grounds upon which the discretion to make declarations should be exercised. They were summarised by Ashley J in Cantor v Murrindindi (1997) 18AATR 285 at 308-9 as follows:

•

The decision was not one which a responsible authority acting reasonably could have made;

•

In making the decision, the responsible authority had taken irrelevant matters into account;

•

The responsible authority had failed to take relevant matters into account;

•

In determining what mattes were relevant, the judgement of Mason J in Minister for Aboriginal Affairs and Anor v Peko-Wallsend & Ors [1986] HCA 40; (1985-1986) 162 CLR 24 at 39-42, gave the proper approach. The factors which may be taken into account in exercising an unconfined discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard.

89 I have reached the conclusion that the decision by the responsible authority to adopt the 2004 Development Plan was a decision that a responsible authority acting reasonably could have made. In making its decision, I do not consider the responsible authority took irrelevant matters into account or failed to take relevant matters into account. I therefore decline to make the declarations which the applicant seeks.

SECTION 3: APPLICATION UNDER SECTION 79

90 The following part of these reasons addresses the Application for Review No. P979/2004 made under Section 79 of the Act. The applicant seeks approval for the use and development of the subject land for restricted retailing and trade supplies. The Application is opposed generally on the basis that the proposal is inconsistent with the current and previous Structure Plan and Development Plans for the area, is inconsistent with the purpose of the zoning, and that the design response is inappropriate. There is also some concern in relation to impacts in terms of traffic volumes and movement in the area.

91 The subject site comprises three lots that are generally located in the vicinity of Victor Crescent and Verdun Drive. Together the three lots have an area of some 6.4 hectares. They form part of the larger Fountain Gate Activity Centre ("the Activity Centre") with an area of 240 hectares and comprising retailing, restricted retailing, Council offices, recreation and a range of other services and facilities. The subject site is on the eastern side of the Activity Centre and is vacant except for a two level office that was recently erected by the Applicant and is partly occupied (Permit P851/99). A water retarding basin is located generally to the west of the subject site. The subject site backs onto the Princes Freeway which is to its north.

92 The land is accessed via the Princes Highway and Narre Warren North Road. The Narre Warren railway station is to the south of the Princes Highway.

93 Land to the west of the subject site, on the west and east sides of Narree Warren North Road, is developed mainly for restricted retail uses. There are a mix of uses to the south of the subject site, within the Activity Centre, including a school, child care centre and two car showrooms. Works are underway to convert a former area of restricted retailing to retailing off Verdun Drive.

94 Based on the substituted plans, the applicant seeks approval to use and develop the subject site for the purpose of five buildings, comprising a total of 27,598 square metres of restricted retail use and trade supplies. The essence of the proposal as described by Mr Borelli is that is would be a "homemaker centre". The tenancies would range in size from 714 square metres to 1,425 square metres. The average tenancy size would be 1,022 square metres. A total of 687 car spaces is proposed in various locations.

95 In summary, the proposal includes:

•

Buildings A and B to the north would be separated by a pipeline easement. Together they would comprise 19 tenancies with car parking to the south, or within the building frontages.

•

Building C would be located on the south side of Verdun Drive and would contain 4 tenancies. Parking is proposed to the east side of the building, off Verdun Drive.

•

Building D would be on the south-east corner of Victor Crescent and Verdun Drive. It would comprise a single tenancy with parking to the east side of the building, off Verdun Drive.

•

Building E would be on the south-west corner of Victor Crescent and Verdun Drive. It would accommodate 4 tenancies with parking to the north of the building.

96 The plans show loading bays and a landscape plan has been prepared. The design includes a landscape setback of 6 metres along Victor Crescent and Verdun Drive.

97 The buildings would range in height from 6.1 - 6.7 metres of a single level with some higher elements with the slope of the land as well as a marker or higher element as part of Building A. Each building would be constructed of concrete panels with compressed fibre cement panels, zincalume sheeting and glazed sections. An integrated signage scheme is proposed.

98 The subject land is zoned Business 2 under the provisions of the Casey Planning Scheme ("the Scheme"). The purpose includes "To encourage the development of offices and associated commercial uses." A permit is required to use and develop the land for a shop and trade supplies. There is no maximum floorspace for shop specified in the schedule to the Zone that is relevant in this case. The decision guidelines set out in Clause 34.02 have been considered by the Tribunal.

99 A Development Plan Overlay (Schedule 8 Commercial Areas) applies to the land and the entire area of the Fountain Gate Activity Centre. 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.

A permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority to subdivide land to create a lot for an existing building.

101 Clause 2.0 sets out the three requirements for a Development Plan.

102 Thus, a permit can only be issued in this case if a proposal is found to be consistent with a development plan that is to the satisfaction of the Responsible Authority.

103 A Development Contribution Overlay (Schedule 7) applies to the land. That is relevant in so far as if a permit is directed to be issued, a condition is required to address the provisions of the Overlay.

104 The provisions of Clauses 52.06 and 52.07 are also relevant to the consideration of the proposal in so far as a reduction in car parking is sought and loading facilities must be addressed. These matters are not central to the arguments raised by most parties.

105 A number of other Clauses are relevant to the consideration of this Application, principally Clauses 11, 14, 17.01, 17.02, 18.02, 19.03, 21, 22.07 (Activity Centres), 22.15 (Good Design Policy) and 65 (general decision guidelines). Melbourne 2030 includes the Narre Warren centre as a Principal Activity Centre. All of these clauses and Melbourne 2030 have been taken into account by the Tribunal.

106 We have considered all submissions and evidence presented by the parties. We do not recite all of the oral and written material presented, as the comprehensive submissions, statements and other documentation tendered by the parties are retained on file. The key issues for determination are:

•

Is the proposal generally in accordance with the 2004 Development Plan adopted by the Council or the previous 2001 Structure Plan adopted as a development plan by the Council?

•

Is the proposal consistent with the strategic planning framework and direction for the Activity Centre?

•

Is the proposal consistent with the purpose of the Business 2 Zone?

•

Does the proposal result in an acceptable layout and design outcome?

•

Does the proposed development provide adequate car parking?

•

Would the proposal have an unreasonable impact in terms of the road network and traffic movement?

Relationship to the 2001 and 2004 Development Plans

107 It is common ground between the parties that if the 2004 Development Plan is regarded as a development plan for the purpose of Clause 43.04 then no permit can issue for the proposal as the use and development sought is not consistent with that Plan. That is a position we accept. Indeed, based on the findings set out above in section 2, this ground is sufficient to determine that no permit should issue for the proposed restricted retail and trade supplies uses and development.

108 However, we have also considered the situation if the 2004 Development Plan is not regarded as a development plan for the purpose of Clause 43.04. In this case, the Plan may be considered as a policy adopted by the Council pursuant to Section 60(1)(b)(ii) of the Act. We turn to our assessment of the proposal in this context below, when reviewing the consistency of the proposal with the strategic framework and direction of the Scheme.

109 On the other hand, if the proposal must be assessed against the 2001 Structure Plan as a development plan for the purpose of Clause 43.04, then the position put by the Council and Westfield is that the proposal is not consistent with that Plan. Conversely, the Applicant contends that the proposal would be generally in accordance with that Plan. We also turn to this matter next.

110 If there are is no development plan for the purposes of Clause 43.04, then based on the provisions of that Clause and Schedule 8, a permit can not be issued for the proposed use and development.

Consistency with the Strategic Planning Framework/Direction

111 The main arguments against the proposal are that it would undermine the strategic direction set for the Activity Centre that has been established by a structure planning process that commenced in the late 1980s/early 90s, culminated in the adoption of the 2001 Structure Plan, and has further evolved through the 2004 development and structure plans. The Activity Centre is sought to be developed for a mix of uses with offices and employment opportunities in a business park (within which the subject site is located) being a central component of the future prosperity of the Activity Centre. Having reached a significant level of restricted retailing, Mr Garde stated that the 2004 Plan seeks to discourage further restricted retailing in Precinct F to instead focus on business and living in that area. It is argued that the proposal would jeopardise this strategy given the extent of restricted retailing proposed by extending the retail component within the Centre and by removing a key site that could provide office development in future years. It is contended that the proposal would create dominance of restricted retailing, in a situation where there is already an oversupply, preventing the vision sought in the Plans from being achieved. The importance of the structure planning process and role sought for the Activity centre is said to be supported by Melbourne 2030 and Clauses 14, 21 and 22.07.

112 The contrary argument put by the applicant is that the proposal would not be consistent with the 2004 Plan, but would be consistent with the 2001 Plan. It is submitted that the 2004 Plan has inappropriately sought to prevent further restricted retailing on the subject site for a range of reasons referred to in Mr Borelli's evidence but that there is scope to allow the proposal based on the 2001 Plan, which recognises that the Plan must be interpreted and administered flexibly, and given that peripheral sales is one of the primary uses sought for Precinct 5. It is submitted that the proposal can be supported in the context of the objectives of that Plan, current Scheme policies and Melbourne 2030 as it would be an appropriate use of the land, would meet an existing demand for additional restricted retailing, would contribute to the land use mix without preventing offices establishing in the future, would discourage out of centre development, and would provide employment opportunities. The potential for the subject site to be converted to offices in the longer term would not be lost by allowing restricted retailing in the short term.

•

In the 2001 Plan, the subject site was in Precinct 5 "Berwick Business Park" with a range of "Primary uses" including peripheral sales. As we understand it, as a consequence of restricted retailing that has occurred in the western part of Precinct 5, the Council has divided Precinct 5 into two in the 2004 Plans, Precincts E and F. Precinct F (including the subject site) is referred to as "Business Park and Living" where no further restricted retailing is sought whereas Precinct E is referred to as the destination for restricted retailing.

•

The design guidelines have changed in the 2004 Plan in so far as the latest plan removes a 6 metre landscape setback to the street and zero setbacks to the street and also seeks car parking to the side or behind buildings.

•

There is an intent to extend the developable area in Precinct F by allowing development close to and around the retarding basin.

119 The first and last of these points are most relevant to this section of our reasons, and we return to the design issues later.

120 The 2004 Structure Plan is the latest expression of strategic planning policy by the Council for the Activity Centre. A review of documents from 1991 shows that there was little change between 1991 and 2001 and the more significant variations are recent. However, the overall intent to create a comprehensive mix of activities remains consistent and, on our reading, the creation of a Business Park is an important element in terms of service sector employment[5]. In the 2004 Plan, the Precinct Guidelines : Business Park and Living (eastern half) refer to "office and town centre" as the goal and under the heading "Appropriate activities/elements" is included the phrase "no restricted retail"[6]. The Precinct Guidelines : Business Park and Living (western half) refer to "office employment and living opportunities" as the goal and under the heading "Appropriate activities/elements" is included the phrase "not restricted retail"[7]. At page 11, the strategic directions refer to "key aspirants roles" as including regional peripheral sales focussed (inter alia) on the east side of Narre Warren North Road frontage and office/commercial "initially focussed on the business park area". The Plan states that it has sought to improve the clarity of activity objectives and it appears that it has also sought to consolidate activities, as it states on page 11 under the heading "Strategic Directions".

121 The rationale for the change in direction in relation to Precinct F was described by Mr Garde as being a consequence of the fact that the amount of restricted retail sales use sought by the Council had been achieved and exceeded. Thus, the Council sought to consolidate that activity in Precinct F while ensuring that Precinct F was protected in the long term for the business park and associated uses such as residential with some support services and facilities.

122 Just as there might be many ways to develop a piece of land for multiple units, there are many ways in which a major regional centre could be planned. It is not our role to review the 2004 Structure Plan. Rather, giving weight to it as adopted policy, it is apparent that the proposal for nearly 27,600 square metres of restricted retail and trade supplies floorspace is not consistent with the directions set out in the Plan. On one view the proposal would extend and consolidate the peripheral sales precinct that has developed but that is not consistent with the direction adopted in the Plan that seeks to consolidate that activity in Precinct E, provide additional opportunities for restricted retailing further to the west, and limit further restricted retail in Precinct F.

To plan for in the order of 30,000 square metres of freestanding peripheral sales with the opportunities for this to be in a number of nodes within the District centre. This is in addition to approximately 20,000 square metres of peripheral sales being provided within or directly associated with the shopping centre[9].

135 In relation to office and commercial activities, the Plan states it allows "in the order of 50,000 square metres or more of office space in the District Centre, which is likely to be progressively staged over the next 10 years". That would supplement a total retail floorspace sought of 75,000 - 100,000 within 10 years. The Plan also seeks to "provide flexibility within the Structure Plan to allow further office space if adequate demand is demonstrated in the future".

136 Mr Papaleo referred to the existing level of restricted retail floorspace as being 58,250 square metres with a further 20,000 expected for completion by the end of 2004. That contrasts with the existing retail floorspace of around 77,334 square metres referred to in Mr Gibbons evidence. This data is important in that it demonstrates that although the 2001 Plan is only 3 years old, the floorspace sought has been achieved much earlier than the target date of 10 years - restricted retail floor space will be at a similar level or exceed the nominated retail floorspace by the end of 2004.

137 The 2001 Plan does not prescribe a limit on peripheral sales but instead refers to some 30,000 square metres being planned for in Precinct 5 in addition to 20,000 square metres elsewhere in the Centre. That does not preclude more. However, it is relevant to consider the magnitude of the restricted retailing sought in this proposal relative to the amount felt necessary to plan for. The proposal falls just short of doubling the amount sought to be planned for and would tip the balance of restricted retail and retail in the reverse of what is sought by the Plan. That is, retailing would not be the major use rather, restricted retailing would be the dominant element in floorspace terms.

138 As we have discussed above, that alone does not mean that the proposal must fail. However, for reasons that are the same as we have set out above in relation to demand for further restricted retail floorspace, we are not persuaded that there are grounds to support the proposal in terms of an overriding net community benefit, demand or need.

139 Both the Council and Westfield submitted that the proposal is not consistent with the purpose of the Business 2 Zone. In addition to the implementation of state and local policies, the purpose of the Zone is to achieve office and associated commercial uses. On the face of it, the proposal could be said to not advance this purpose of the Zone and given its scale, a review of the zoning through an amendment might usually be said to be warranted if it is to proceed. However, it is relevant in this case that the Council has allowed other restricted retail in the same zone and, on that basis, it is difficult to conclude that the proposal should be rejected for reasons relating to the consistency with the purpose of the Zone alone.

140 Ms Hansen and Mr Milner were critical of the form of the proposed development in terms of its form and design quality. Among a range of matters, they were critical of the inclusion of parking forward of buildings and deep building setbacks to the street and also placed weight on the higher building form encouraged by the structure plans. In addition, the suitability of the subject site for restricted retailing was questioned through the evidence of Mr Armstrong. He referred to some location difficulties with the site, such as the absence of main road exposure/frontage. He also referred to issues associated with the layout of the proposed premises, such as visual and physical separation from the main restricted retail core.

141 These submissions were challenged by the Applicant through the evidence of Mr Papaleo and Mr Borelli. Contrasting with the opinion of Mr Armstrong, Mr Borelli described the subject site as good location for the uses sought, given the flat land, the potential to agglomerate with existing restricted retail uses (with sharing of parking, security and other benefits), and the ability to conceal loading areas to the rear. Mr Borelli referred to the proposal as having a high level of compliance with the design outcomes sought in the 2001 Plan such as through the provision of a 6 metre landscape setback, the position and landscaping of car parking areas and building scale. He referred to the form as being similar to other restricted retail developments approved by the Council. Mr Papaleo referred to the benefits of agglomeration but also considered that the proposed site is less desirable than a site with greater exposure, such as the Casey Lifestyle Centre.

142 In considering these opinions, the most relevant policies in relation to design considerations are Clause 19.03, Clause 21.12 (Image) and Clause 22.15. As called upon by Clauses 21.12 and 22.15, there are design guidelines included in both the 2001 and 2004 Structure Plans. On our reading, there is an obvious shift in terms of design outcomes between these Plans that is relevant to the opinions expressed in evidence. The form sought by the earlier Plan is less intensive and is responsive to the stage of the Centre's development with open lot parking. This contrasts with the latter Plan that focuses on a harder and stronger urban form with less visually dominating parking facilities. That change seems related to the objective to facilitate the transition from suburban to urban and also appears linked to the type of land use that has been sought to be encouraged in the 2004 Plan for Precinct F in the form of office and residential uses in a multi-level structures.

146 The number of parking spaces provided to service the developed was not a matter in dispute between the Council, Westfield and Applicant. The reduction sought from the requirements of Clause 52.06 is 1,521 spaces (based on a Scheme requirement of 2,208 spaces and a proposed provision of 687 spaces). That is a ratio of 2.49 spaces per 100 square metres of floor area. Given the findings we have made above and on the basis that his ratio is acceptable to the Council, we do not explore this matter in detail.

147 Loading facilities are shown on the plans and we accept that this matter could be satisfactorily addressed.

148 Traffic was raised as an issue in the submission of Mr Tsoulos in so far as he expressed concern about an increase in vehicle activity on the road network and the potential to impede the movement of ambulances.

149 As the Activity Centre develops, additional traffic will utilise the road network. However, the road network has been designed as part of the structure planning process for this Activity Centre. There is nothing before us to enable us to reach a conclusion that the road network can not accommodate the traffic proposed or that the proposal would give rise to significant safety issues or congestion to warrant its rejection.

150 In summary, we find that the proposed use is not generally in accordance with the adopted Structure Plans (2001 and 2004) and consequently not in accordance with either the 2001 Development Plan or the 2004 Development Plan. Therefore, in either case, a planning permit should not issue. Even if neither Structure Plan had the status of being a development plan to the satisfaction of the Responsible Authority pursuant to Clause 43.04, we find that the proposal is not consistent with the long-standing strategic land use directions for the Fountain Gate Activity Centre and would potentially undermine the strategic outcomes being sought.

151 For the above reasons, we conclude that Application P979/2004 should not be allowed and we will direct that no permit issue.

SECTION 4: COSTS APPLICATION

152 On the first day of the Hearing, Mr Wright made an application for costs in relation to the loss of 1/3 a day of the Hearing while the question of the joinder of Westfield into the proceedings was considered.

153 Mr Southall foreshadowed that the application would be contested.

154 Having considered the submissions made by the parties, we do not consider that there is any reason to depart from the normal rule set out in Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that each party is to bear their own costs in a proceeding. Even though the applicant was not successful in opposing the request by Westfield to be joined as a party to the proceedings, we would not go so far as to say that its arguments were completely without merit. This was a complex case and a lengthy hearing and we do not consider that in the overall scheme of things the applicant's action in opposing the joinder of Westfield was untenable or resulted in an unreasonable loss of time. There will be no order as to costs.

[1] The Fountain Gate Activity Centre is variously referred to as the Casey CBD and the Fountain Gate - Narre Warren CBD. The Tribunal will refer to it as the Fountain Gate Activity Centre.

[2] The Casey Lifestyle Centre on the north east corner of Narre Warren Road North and Princes Highway, is land owned by Council and leased for 30 years to Jocelyn Meadows.

[3] 4 Burnside Properties Pty Ltd v Melton City Council [2000] VCAT 2326