1. To avoid duplication I shall adopt here the useful description of the subject land provided by Member Fong in her previous decision dated 4 April 2006, as follows:

[3] The review site is located on the west side of Calder Freeway approximately 2km south of the Gisborne Township. It is bounded by Brooking Road to the south, Willowbank Road to the north, and Brady Road to the West. It is comprised of 17 titles of various sizes with a total of 154.9 hectares. It is not under one ownership. However, it can be ascertained that there is no objection from any of these owners to the proposal. The address of 61 Willowbank Road is one of the properties within the site.

[4] The site is currently used for a range of rural activities, from farming to horse properties, and two small former quarries. There are 11 houses on the site. A seasonal creek (dry at time of inspection) runs approximately at the centre of the site. It has no formal name, but referred to as 'Central Creek' by the parties.

[5] The majority of the land is relatively flat, dissected by Central Creek near the centre of the site. The land rises to the southwest corner, from where there are extensive views across the north and northeast.

[6] To the north of the site are properties also in the Residential 1 Zone but subdivided into large lots. Ms. Banks advised that they are all one-acre lots. To the west of the site and west of Brady Road are properties zoned Residential 1 Zone has not been developed and remains rural in outlook. A board on the site indicated that this property is on the market. The portion zoned Low Density Residential is developed, with new houses already constructed in spacious grounds. This zone has a minimum lot size of 0.4 hectare.

[7] Land to the south of the site, south of Brooking Road is the foothill of Mt. Macedon and zoned rural Living 1 Zone.

[8] Several permits have been issued or under consideration for subdivision within the site: a 22-lot subdivision for No. 43 Brooking Road at the south west corner (most lots are 4000 sq m, Permit P201/0571 issued on 17 April 2003 and recently extended to 2007); Permit P203-0755 to be issued at the direction of the Tribunal for 59-95 Brooking road with lot sizes between 1,500 to 4,000 sq m (this decision was set aside by the Supreme Court on a point of law and to be brought back to the Tribunal), and a current proposal for a 22-lot subdivision for the parcel of land at the southeast corner of Brady and Willowbank Roads.

1. If it not already been issued at the time of Member Fong's decision, I can confirm that a planning permit has issued for the subdivision of the land at the south-east corner of Brady and Willowbank Roads, into 22 lots. Accordingly, this site which has already received subdivision approval for 22 lots is excluded from the land which is subject to the proposed development plan now before me.

1. Paragraphs 23 to 30 of council's written submission admirably summarises the proposal, as follows:

Essentially, the applicant seeks Council's approval of a development plan which has been prepared in respect of the majority of the land bounded by Willowbank Road, Brooking Road, Brady Road and Calder Freeway.

• Development area of 154.9 hectares
• Subdivision of the 102.18 hectares of land into 887 lots (for residential use) at a range of densities as follows:
  • 49% of lots are to be between 1000 and 4000 sqm;
  • 45% of lots are to be under 1000 sqm;
  • 5% of lots are to be over 4000 sqm
• 16.5 hectares of open space (excluding drainage reserves)
• 4.25 hectares of drainage reserve including retarding basins;
• 31.85 hectares of road reserves;
• 0.2 hectares dedicated to proposed community centre;
• An internal road network;
• A shared path running alongside the northern section of the creek and a bike path running along;
• 4 retarding basins within the open space around Central Creek (northern section), 1 retarding basin within the open space in the north-west corner of the subject land 1 retarding basis within open space adjacent to the Calder Freeway;
• Limit of single storey or 5 metre within two building height precincts.

While there is no landscape concept plan as part of the development plan, the report accompanying the plans describes the retention of existing indigenous trees, partial removal and re-vegetation of native grasses in open space and indigenous planting along Central Creek. The report also describes street tree planting of a range of exotic and native trees.

The Development Plan lodged with Council comprised the following elements and documents:

• Development Plan dated 14 July 2006 by Keith Altmann & Associates;
• Building height precinct plan undated;
• Sight lines "A" and "B" from Calder Freeway dated 14 July 2006 by Keith Altmann & Associates;
• Traffic and Movement Plan dated 14 July 2006 by Keith Altmann & Associates;
• Supporting report by Keith Altmann & Associates dated July 2006.

The applicant did not provide new flora and fauna reports with the application, but sought to rely upon the reports previously undertaken and supplied with the previous application.

On 14 December 2006, Council's instructing solicitors received an amended development plan and supporting report dated 6 December 2006. The amended plan and supporting report were not accompanied by the requisite statement of changes as required pursuant to the relevant practice note. However, upon examination of the plans, the amendments are summarised on the development plan as comprising:

• North-west corner of development plan adjusted for permit issued for parcel on corner of Brady and Willowbank Roads;
• Outlet Road to Brady Road adjusted to match Council plan;
• Large old trees added (two within the Central Creek open space area);
• Bike path alignment modified.

• A landscape visual assessment dated 6 December 2006 by Keith Altmann & Associates;
• A landscape master plan dated 6 December 2006 and both drawn by Keith Altmann & Associates;
• 'Sheet two of Development Plan' which sets out development provisions to apply to all lots within the development plan.

The impact of removing the north-west corner of the development plan is to reduce the development area to 149.7 hectares and the number of proposed lots to 864.

1. As indicated above, in terms of precisely which documents make up the draft Development Plan I have considered for the purposes of this decision, I have focused on the bound set of documents provided by Mr Altmann after the hearing pursuant to my directions - the Index at the front of the bound documents confirms the documents relied upon to be as follows.
   1. Sheet one titled "Development Plan", dated 23 February 2007 bearing ACAD file name "03169LD - Development Plan 23-02-07.dwg" with two amendment boxes.
   2. Sheet two of "Development Plan" containing text to be read in conjunction with sheet one with footer reference "Sheet 2 of 03169LD - Development Plan 14-07-06 (as amended 27-03-06)".
   3. Building height precinct plan.
   4. Plan dated 7 December 2006 bearing ACAD file name "03169LD - Traffic and Movement Plan 23-02-07.dwg" with one amendment box.
   5. Landscape Masterplan reference drawing number 48006-01D, dated 07 Dec 2006, last amended 27 March, 2007; by Fiorji Design.
   6. Landscape Sketches, reference drawing number 06006-03, dated 6 Dec 06, by Fiorji Design.
   7. Landscape Visual Assessment, reference drawing number 06006-02, dated 6 Dec 06, by Fiorji Design.
   8. Willowbank, Calder, Brooking and Brady Precinct "Landscape Design Response" prepared by Fiorjo Design.
   9. Staging Plan, reference ACAD file name "03169 Staging Plan 06 12 05.dwg", dated 05 Dec 2006.

1. The subject land is zoned Residential 1. It is also affected by a Development Plan Overlay Schedule 1 ("DPO1"), noting that this Schedule 1 has a sunset clause which provides that the control expires on 30 June 2011.
2. In terms of the planning intent behind the DPO1, clause 11 from the council's submission helpfully reads as follows:

The sunset clause reflects the interim nature of the DPO control as originally introduced through Amendment C38, as a measure to protect key parcels of residentially zoned land whilst Council prepared the Gisborne/new Gisborne Outline Development Plan (ODP) which was partly funded by the Department of Sustainability and Environment (DSE).

1. I note that Schedule 1 was amended on 23 November 2006 by Amendment C39 to the planning scheme.
2. The DPO1 provides that a permit must not be granted to use or subdivide any land affected by the DPO, or to construct a building or carry out any works, until a development plan has been prepared to the satisfaction of the responsible authority. As amended, Schedule 1 no longer provides for any classes of permit applications where a permit may be granted before a development plan is prepared and approved.
3. The DPO1 also requires that any permit granted must be generally in accordance with the development plan and must include any conditions or requirements specified in the Schedule to the DPO1.
4. To avoid repetition, I refer to paragraphs 17 to 22 of council's written submission, which helpfully summarises the main features of the various requirements of the DPO1. Suffice to say that there are quite detailed matters which a proposed development plan must address, where an applicant puts forward a development plan for approval by council.
5. One particular feature of the requirements of the DPO1 of interest here is that, for the township of Gisborne, there are various cells which are defined and identified as applying to any future development in different parts of Gisborne. The subject land is located within development plan cell 6. The specific requirements for development plan cell 6 are as follows:
   • Encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.
   • Identify landscape options which often impact on Mount Gisborne approach.
6. In terms of the relevant state and local policies, I set out below the useful summary of these policies which apply here, taken from paragraph 34 of council's written submission:

In summary, the relevant state and local planning policies (including the MSS) are found at:

• Clause 12.01 - Networks with regional cities;
• Clause 14.01 - Planning for urban settlement;
• Clause 15.09 - Conservation of native flora and fauna;
• Clause 16.01 - Residential development for single dwellings;
• Clause 18.09 - Water supply, sewerage and drainage;
• Clause 19.01 - Subdivision;
• Clause 19.03 - Design and built form;
• Clause 21.06 - Municipal vision and strategic framework;
• Clause 21.01-1 - management or urban growth and development;
• Clause 21.07-2 - Protection of the environment and landscape;
• Clause 21.0-4 - Promotion of the Shire's cultural identity and community values;
• Clause 22.01 - Macedon Ranges and surrounds;
• Clause 22.02 - Townships;
• Clause 22.02-2 - Gisborne

1. Obviously the cl.56 provisions relating to subdivision apply here, but keeping in mind that the Standard C6 relating to "neighbourhood character" is exempted due to the proposal being for over 60 new lots. Clause 43.04-3 of the planning scheme provides that a development plan that provides for residential subdivision in the Residential 1 Zone must meet the requirements of cl.56 as specified in the zone.
2. The general cl.65 decision making criteria apply in the normal way here, in particular those provisions dealing with subdivision proposals.
3. Ms Marshall also highlighted in her written submission that council has requested authorisation from the Minister to prepare an amendment to the planning scheme, which would include the Gisborne and New Gisborne Outline Development Plan ("ODP") as a Reference Document in the Municipal Strategic Statement, include the ODP as a Policy Reference Document in the Local Policy for Gisborne Township, and also make certain alterations to Schedule 1 to the ODP. In other words, it is proposed to replace those existing planning provisions in Schedule 1 to the ODP relating to the development of specific areas of land within the Gisborne Township, with a substituted new provision requiring that any proposed development plan must be consistent with the ODP.
4. In relation to the ODP itself, the Council Grounds of Refusal referred to the ODP as having been adopted by Council on 22 February 2006, yet Ms Marshall indicated that the ODP was apparently re-confirmed by Council at its Planning Committee Meeting on 13 September 2006.
5. Ms Marshall (relying on the planning evidence of Mr Milner) urged me to give significant weight to the ODP, relying on the fact that it is a strategic plan adopted by council after extensive consultation, combined with the current position that Council is pursuing the implementation of the ODP on a serious basis. That is, Council is seeking the incorporation of the ODP into its Planning Scheme. Ms Marshall also indicated that Council is in practice applying the ODP consistently to all other similar matters where the proposal affects land which is subject to the DPO1. Ms Marshall also relied on various case law dealing with the level of weight to be given to contentious strategic planning documents. This position was rejected by Ms Davis for the Applicant (with reliance upon the evidence of Mr Jewell), on the basis that the ODP is still at its early stages and therefore it would be premature to give the contents of the ODP any real weight.

1. The Development Plan application was submitted to council on 17 July 2006 by the project architect, Mr Keith Altman of Keith Altman & Associates. There was then "planning certification" carried out by a planner nominated by the Applicant, being Mr Peter Jewell of Jewell Partnership Pty Ltd. That is, as I understand it, Mr Jewel on behalf of Council was simply certifying that the application paperwork was complete, but with his fees being paid for the applicant.
2. As a result of the advertising of the application, 27 objections were received.
3. To avoid duplication, in terms of the comments of the various referral authorities and/or council departments, I refer to paragraphs 51 to 58 of the council written submission.

1. As mentioned above, the same applicant previously put forward a draft development plan proposal to Council, which Council failed to support, and which was then appealed to the Tribunal and heard by Member Fong. In Member Fong's decision dated 3 April 2006, she ordered that the contentious development plan not be approved. At that hearing before Member Fong held on 9 and 10 March 2006, the applicant was similarly represented by Ms Davis and by Mr Altman, although there were different consultants giving town planning and traffic evidence.
2. The proposal which Member Fong rejected involved a proposed yield of 1,005 lots, with over 60% of the lots having a size of 1,000 square metres or under.
3. At paragraphs 31 to 33 of her decision, Member Fong made the following useful observations regarding the applicable features of the ODP which apply to the land in question here.

The vision for Gisborne under this study is for Gisborne to be a township of lower density, respecting the topography and view lines of the area. Medium density developments are to be located around the main commercial areas. Larger lot sizes are proposed for areas that have landscape sensitivity, areas having important flora and fauna assets, and where they abut existing larger lots of rural/low density development. New residential areas are to be linked to the centre of Gisborne through linear open space. This study advanced the concept of New Gisborne becoming a transit area because of availability of train services to Melbourne.

This study considers a density of 1:450 sq m as higher density, and they are located around activity and neighbourhood centres, public transport links and open space. Housing choice is to be provided in three new residential areas in New Gisborne, west Gisborne and southern Gisborne, with densities ranging 450 sq m to 4000 sq m. The sensitive landscape and environmental areas adjacent to the Freeway are subject to lower density lot sizes. The review site is in the south Gisborne new area. This study expects a yield of approximately 1880 new lots in approximately 425 ha of land in the new growth areas.

In terms of detailed recommendation, the review site is in Area 12 (South of Willowbank Road) and Area 16 (North of Brooking Road and Adjacent to Calder Freeway). The recommended control for Area 12 is an average lot size of 2000 sq m, with a minimum of 1500 sq m. Minimal setback of buildings from the road is 10 metres, and 4 metres from side boundaries. Maximum building height is 9 metres, and fencing must be post and wire, or similar. The recommended control for Area 16 is an average lot size of 4000 sq m, with a minimum of 3000 sq m. Minimum setback of buildings from the road is 20 metres, a 10 metres from side boundaries. Again, maximum building height is 9 metres and no more than two storeys. Fencing must also be post and wire or similar.

1. In terms of those paragraphs in Member Fong's decision where she sets out her findings and key reasons why she failed to support the proposal, I have set out below paragraphs 45 to 57 of her decision (the underlining shown was inserted by Ms Fong rather than by myself).

The proposed development plan indeed shows 'lower' density along the perimeter roads, that the average lot sizes are larger than those located away from these roads. However, I am not satisfied that the extent of lower density lots proposed in the development has addressed the objective of maintaining a village ambience within a rural and forest setting of Gisborne.

The depth of 'lower density' lots is one block deep. Given the expansive character of the site and the vantage points available from within and outside the site, there is little effect in the impression that it is a lower density area, or of a village in a rural setting. It is more of a suburban subdivision.

As for the issue of landscape options to soften the impact on Mt. Gisborne approach, there is no evidence that this exercise has been carried out. My inspection of the site is that Mt. Gisborne forms a backdrop for the review site. It is separated from Mt. Gisborne by a band of Rural Living Zone. It is a consideration that should be addressed.

Another design criterion is whether the proposed development plan is an appropriate basis for future subdivision and development of the site under the guidance of Clause 56.

Council advised me that the DSE is currently reviewing Clause 56, with a view of introducing new provisions to create sustainable neighbourhoods. These new provisions relate to consideration for neighbourhood centres, walkable distance to services, provision of schools and community facilities, and to provide a sense of place in new residential subdivision. It would require integrated walking, cycling, public transport and motor transport modes. I understand that a draft Clause 56 is still in a consultation stage.

Nonetheless, the current Clause 56 still requires the consideration of neighbourhood character (Clause 56.01-2). It is this aspect that I consider the proposed development plan has not responded to the existing neighbourhood character of the area.

Standard C1 recommended that a subdivision layout should give an area a strong and positive identity by having regard to site characteristics, its setting, landmarks and views, and through the street and open space networks. Subdivision layout:

• Must respect the existing neighbourhood character or achieve a preferred neighbourhood character consistent with any relevant neighbourhood character objectives, policy or statement set out in the scheme.
• Must respond to and integrate with the surrounding urban environment.
• Should encourage development to front major streets, through the use of service roads or side or rear access.

It is clear that there is at present no stated preferred neighbourhood character. The draft Gisborne Outline Development Plan is not at a stage advanced enough to be given weight, and the other referred documents nominated in the Scheme are either not relevant or out of date[3]. The determination of whether the proposed development plan is acceptable is whether it responds to the existing neighbourhood character of the area.

The existing neighbourhood character of the area is either low density residential development or rural in character: low density residential to the north and west, and rural to the south. To the east is the Calder Freeway and further rural properties. The site itself is of rural appearance. With regard to the current residential development pattern of the area, Ms. Banks submitted that despite the same Residential 1 Zone that applies to her property, the area north of Willowbank Road is developed with housing lots of 1 acre. The proposed 'suburban' character is out of keeping with the semi-rural character of these one-acre allotments.

The low density residential area to the west is zoned Residential Low Density Zone and has a low density appearance. The area to the south of the site and south of Brooking Road is in the Rural Living Zone 1, and also of a rural character. This area can be described as the foothill of Mt. Macedon.

Against such an existing character of either low density or rural outlook, and against the background of recommended lower density development adjacent to perimeter roads and softening landscaping options under the Development Plan Overlay, I find the mainly suburban character of the proposal not consistent with the existing neighbourhood character, the intention of 'lower density' character of the Development Plan overlay, or the village in a rural setting character promoted by the Gisborne Township policy.

As the strategic blueprint for the development of this large site, I would also expect an analysis of how the proposed development plan would integrate with the development of the Gisborne Township and connectivity with Gisborne in terms of pedestrian, bicycle, public transport and open space.

Overall, I am not satisfied that the proposed subdivision as expressed in the Development Plan has responded to the Development Plan Overlay, the existing neighbourhood character, or demonstrated how it integrates with the overall development of Gisborne. I do not support its approval.

1. I agree with Mr Jewell's evidence at page 8 of this report, where he emphasises that my discretion in this repeat appeal needs to be considered in the context of previous case law on this point. In this regard, Mr Jewell at page set out (and I endorse) the following passage from the decision of Amaco Australia Ltd v Berwick CC (1983) PABR 166:

"Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining this appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and chose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged".

There follows at Mr Jewell's page 8 a second quote, this time from Watkins v MMBW (1977) 9 VPA 184 at 187:

"We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos would occur with unsuccessful parties applying and appealing time after time".

In summary then, this previous case law indicates to me that in this type of repeat appeal where the proposal is conceptually similar but with some degree of modifications, I should:

• primarily focus on those aspects of the earlier proposal that Member Fong found fatally inadequate; and then
• consider whether there has been a significant enough "change in circumstances" to justify this fresh proposal being approved, in terms of either modifications to the fresh proposal compared to the earlier one (notably the revised subdivision layout) or otherwise fresh persuasive evidence being put before the Tribunal at the hearing before me (eg the three persons called by Ms Davis for the Applicant over 19 and 20 March 2007).

1. I will not repeat the submissions of the parties, but more concentrate on what I see as the key issues. A copy of the written submissions of Ms Davis and Ms Marshall are retained on the Tribunal file, along with the various plans, photos and other materials tendered during the hearing.
2. I will tackle the issues before me by first addressing the more straight forward points, before then dealing with the more critical issues.

1st preliminary issue - desirability of Council processing its ODP as quickly as practicable

1. I note that Senior Member Baird and myself dealt with a Development Plan proposal in relation to a neighbouring site quite close by, to the west - see GR8CO Investments Pty Ltd v Macedon Ranges SC (VCAT Ref. P1055/2004 & P2742/2004) which involved the land at Lot S3 on Willowbank Road. The hearing days for this appeal occurred over February 2005, being more than two years ago. I note from my recent inspection that this Lot S3 is now being actively developed.
2. At the hearing before Senior Member Baird and myself in February 2005, there was discussion of the appropriateness or otherwise of the Tribunal approving any new Development Plans whilst Council was still carrying out its strategic planning work for Gisborne. At page 22 of our decision, Senior Member Baird and myself rejected the argument that it would be premature to approve the Development Plan before us whilst Council was still carrying out its strategic planning for Gisborne. However in the final result, Senior Member Baird and myself refused to adopt the Development Plan, on the basis that it was inadequate "...in so far as it has been developed in relative isolation of its context in a strategic sense and its adoption (and in turn the issue of a permit for the proposed subdivision) would have the potential to undermine sound planning outcomes for the wider area"[4].
3. At paragraph 52 of the aforementioned decision by Member Fong dated 3 April 2006, Member Fong indicates that the draft Gisborne Outline Development Plan ("ODP") "...is not at a stage advanced enough to be given weight". She also comments at her paragraph 42 that on-going development should not be held up in the absence of completed ODP.
4. In the context of the two decisions referred to above, it is disappointing that almost a year on from Member Fong's decision when I conducted the hearing for this matter over 19 and 20 March 2007, I was told that the processing of the ODP had advanced no further than Council's re-adoption of the ODP in September 2007.
5. It is not obvious to me why these significant delays are occurring. In the interests of promoting proper and orderly strategic planning for the Gisborne township, it seems essential that Council resolve the status of the ODP as a matter of urgency. In the current situation where the ODP is a Council-adopted document but where I understand it has not even received pre-approval from the Planning Minister, this leaves major doubt/uncertainty as to whether the broad strategic directions advocated in the ODP are sufficiently robust/credible for the ODP to in due course make its way into the Planning Scheme. The extended hiatus period in the meantime is a major problem not just for Council but for developers and all other stakeholders involved in the on-going development of Gisborne.

2nd preliminary issue - "neighbourhood character" is excluded from my Clause 56 analysis of the proposal

1. I have already indicated above that:
   • Mr Jewell's evidence during the hearing included his reliance on the fact that the new version of Clause 56 excludes the Standard C6 (neighbourhood character) in relation to the assessment of subdivisions of over 60 lots;
   • Mr Altmann subsequently provided correspondence and attachments dated 22 May 2007 confirming the Clause 32.01-2 of the Planning Scheme is the basis for this exclusion; and
   • The subsequent letter dated 25 May 2007 from Maddocks did not contest Mr Altmann's basic position.
2. Accordingly, I accept Mr Jewell's point that, with the introduction of the new Clause 56 provisions and having regard to the relevant aspect of Clause 32.01-2, it is no longer part of my role to assess the merits of the proposed Development Plan by reference to Standard C6 in Clause 56 of the Planning Scheme. Similarly, to the extent that Member Fong relied on the "neighbourhood character" aspects of the earlier version of Clause 56 in refusing the proposal, I have disregarded this aspect of her decision.

3rd preliminary issue - Tribunal is satisfied that the bare requirements of DPO1 Cell 6 are satisfied

1. As mentioned, the specific Cell 6 provisions of the DPO1 are as follows.
   • "Encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.
   • Identify landscape options which often impact on Mount Gisborne approach".
2. Reviewing Member Fong's decision, it is clear she had major concerns about the previous proposal's compliance with both of these Cell 6 requirements.
3. In relation to the revised Development Plan now before me, part of the Applicant's case was these concerns of Member Fong had been addressed, and the two Cell 6 requirements were now satisfied, due to the revised Development Plan:
   • including greater landscaping treatment on the eastern end of the site, adjoining the Calder Freeway, so as to suitably soften the viewlines from the freeway east towards Mt Gisborne; and
   • being modified to have more larger lots around the periphery of the site, thereby creating more depth of larger lots. This is in contrast to Member Fong's criticism of the earlier proposal at paragraph 46 of her decision, where she highlighted that "The depth of "lower density" lots is one block deep".
4. In summary, I see no basis for refusing the proposal when it is assessed simply against the bare requirements of the two Cell 6 bullet points. However, I shall return further below to the broader issue of whether the proposal has adequately responded to the fairly rigorous general requirements of the DPO1.

4th preliminary issue - it is no barrier to the draft Development Plan being approved that no Development Contribution Plan is in place

1. One of Council's grounds of refusal relied in the fact that there is no Development Contribution Plan in place. I regard this as a rather strange grounds for Council to raise, and it is rejected. In the same way as one can never know who long it will take for Council to finalise its draft ODP, it would be quite unfair for developers if no draft Development Plans could be approved until Council had put a formal Development Contribution Plan in place. It is the Council's responsibility to prepare and have finalised any Development Contributions Plan, not the responsibility of the developers.

5th preliminary issue - Tribunal can only give limited weight to relevant provisions of ODP

1. As alluded to above, during the hearing there was competing submissions put to me regarding how much weight I can give Council's draft ODP. We know that this ODP was adopted by Council in early 2006 and re-adopted by Council in September 2006. To my knowledge it still has not received pre-approval from the Minister, let alone gone on exhibition or been considered by a Panel.
2. In these circumstances, I endorse the finding of Member Fong that that the draft Gisborne Outline Development Plan ("ODP") "...is not at a stage advanced enough to be given weight". At her paragraph 38, Member Fong similarly states that "I agree with Ms. Newmann that the draft Outline Development Plan has some distance to go before it becomes part of the Scheme. It is not a document that can be relied upon to accept or reject the proposal before me" (this comment seems equally applicable to the fresh proposal before me).
3. In summary then, I consider that I can still have some regard to the contents of the draft ODP, but I cannot give it any significant weight for the reasons set out above.

Fundamental Issue - has the fresh proposal adequately dealt with the key Member Fong concerns of "density" and the "integration of the development with the broader Gisborne township"?

1. I turn now to the fundamental issue on which this appeal has turned, being whether the fresh proposal has adequately dealt with the key Member Fong concerns of "density" and the "integration of the development with the broader Gisborne township".
2. With this being a repeat appeal, I have already explained above why I need to focus on the key problems identified by Member Fong in her 3 April 2006 decision. I have also confirmed above that changes to the Planning Scheme since Member Fong's decision require me to disregard her concerns under Clause 56 about "neighbourhood character".

1. One thing that is clear from reviewing Member Fong's decision (and also clear from the hearing before me) is that the level of density or yield of the proposal before me is central to an assessment of its merits. At paragraphs 45 and 46 of her decision, Member Fong stated that:

"However, I am not satisfied that the extent of lower density lots proposed in the development has addressed the objective of maintaining a village ambience within a rural and forest setting of Gisborne.

The depth of "lower density lots" is one block deep. Given the expansive character of the site and the vantage points available from within and outside the site, there is little effect in the impression that it is a lower density area, or of a village in a rural setting. It is more of a suburban development".

1. In making this statement, Member Fong was referring to both the mix of lots sizes in the earlier proposal, and also highlighting that one of the policy objectives for Gisborne in Clause 22.02-2 is "To protect the urban and landscape elements that contribution to Gisborne's image as a village in a rural landscape". At her paragraph 55, Member Fong was again critical of the "...mainly suburban character of the proposal...".
2. In summary, the most important concern of Ms Fong (and the most important issue coming out of the hearing before me) is whether the density level of the proposed development is appropriate for this location, or whether this density has "crossed the line" so as to become unacceptably "suburban" in character.
3. The other key problem identified by Member Fong was the failure of the previous proposal to adequately demonstrate how the new development would integrate with the balance of Gisborne. At paragraph 56 she stated as follows.

"As the strategic blueprint for the development of this large site, I would also expect an analysis of how the proposed development plan would integrate with the development of the Gisborne Township and connectivity with Gisborne in terms of pedestrian, bicycle, public transport and open space".

1. Hence my other main focus in assessing the fresh proposal before me (ie apart from reviewing its density) has been considering whether the draft Development Plan here has adequately tackled how the new development would integrate with the broader Gisborne township.

Proposal has failed to reduce its density to an acceptable level

1. For the reasons set out below, I am not satisfied that the proposal before me has reduced the proposed density levels to an extent that meets the concerns of Member Fong and the requirements of the DPO1/Clause 22.02-2. Hence my overall decision is that the draft Development Plan is rejected, and Council's decision not to approve the draft Development Plan is affirmed.
2. To understand why I have made this overall finding, it is important to grasp the policy setting and the physical setting of the proposed development.
3. In relation to the planning policy setting, even if one disregards Objective C6 in Clause 56, the reality is that there is still a fairly rigorous set of planning controls and policies that any draft Development Plan must satisfy, notably:
   • the Schedule to the DPO at Clause 43.04 of the Planning Scheme sets out an extensive list of bullet points that any draft Development Plan must satisfy. Presumably this reflects the trade-off where, once a Development Plan is approved, then third party objections are shut out; and
   • the objectives for the Gisborne township in Clause 22.02-2 include the following - "To ensure that development occurs in a sequential manner allowing for the efficient provision of development infrastructure" and "To protect the urban and landscape elements that contribute to Gisborne's image as a village in a rural landscape".
4. With respect to the physical setting of the proposal, it is critical to the proposal that the subject land:
   • is located on the south-eastern edge of the Gisborne township, rather than being in a middle-to-inner township location;
   • is effectively split down the middle by the creek running north-south. Hence the proposed new development would to some extent be separate communities, connected on an east-west basis by the single proposed bridge in the middle of the site;
   • lies to the south of fairly generous "lifestyle" size lots running along the northern side of Willowbank Road, which are closer to the centre of the township. This lot pattern of larger lots north of Willowbank Road is readily evident if one reviews the plan which accompanies Clause 22.02-2 in the Planning Scheme. The practical result is that the proposed more intense development in the inner sections of the subject land will effectively "leap frog" the lower densities of the lots north of Willowbank Road, which are closer to the town centre.
5. The sixty-four dollar question then becomes whether the density levels of the draft Development Plan before me (ie 887 lots[6] compared to just over a 1000 before Member Fong) is a reasonable response to this policy and physical setting of the proposal. My finding here has been "No".
6. A particular shortcoming I see here is the failure of the applicant to justify the "leap-frogging" aspect of the proposal. Unlike Mr Jewell, I do not see the exclusion of Objective C6 in Clause 56 as in itself justifying this leap-frogging effect. Although there will be larger lots around the periphery of the subject land, we know that 45% of the new lots will be under 1000 square metres in size, in contrast with the lifestyle size lots north of Willowbank Road. Not only does this go against the conventional "orderly planning" expectation of having larger lots near the edge of a township and the Clause 14 objective of "To faciliatate the orderly development of urban areas", but this leap-frogging effect is contrary to the Clause 22.02-2 objectives that:
   • "...development occurs in a sequential manner allowing for efficient provision of development infrastructure". This will be an out-of-sequence development, in terms of having more intense development on the southern side of Willowbank Road compared to the north side; and
   • there be protection of the urban and landscape elements "...that contribute to Gisborne's image as a village in a rural landscape". We already know that the lots north of Willowbank Road are larger, lifestyle size lots. If you look at the average lots sizes of the new lots being sold on either side of the Willowbank Road/Brady Road intersection, the typical lot sizes are at least in the 1500-2000 square metre range. I consider that these existing lifestyle lots to the north and the new lots that typically are at least 1500-2000 square metres are consistent with Gisborne's rural landscape/village character. By contrast, I have real problems reconciling how a draft Development Plan that involves 45% of the proposed lots in an edge-of-town site being less than 1000 square metres in size can be said to be respecting Gisborne's rural landscape/village character. Despite the drop in yield from just over 1000 to 887 proposed lots, I still share Member Fong's impression that what is a proposed has an unacceptably strong suburban flavour to it.
7. In addition to my points above, I share Mr Milner's view that the creek running north-south through the middle of the site in effect creates two virtually separate communities, and that common sense suggests that an appropriate design response for the lots on the western side of the creek (closer to the town centre) will not necessarily be appropriate for the lots on the eastern side of the creek (which will be more isolated from the centre of town). To the extent that Mr Milner's evidence conflicts here with the evidence of Mr Jewell, I find Mr Milner's evidence more persuasive.
8. Following this broad line of thinking, I agree with Mr Milner that the section of the subject land on the western side of the creek can reasonably accommodate more ambitious densities, compared to the eastern side. This is due to the western side being closer to drive to the town centre, closer to any potential public transport, and closer to the local shops which hopefully will spring up around the Willowbank Road/Brady Road intersection. I endorse Mr Milner's evidence that a more low-key design response seems in order for the eastern section of the site, with more emphasis on lifestyle size lots which could be pitched at the upper end of the market. Given the likely scenario that people living on the eastern side of the creek will be fairly isolated from local services and shops, having lifestyle size lots will at least reduce the number of future occupants in this situation.
9. If one was to ask how much of a further reduction in the yield is needed to achieve a more respectful design response to these policy and physical constraints of the proposal, it is difficult to nominate a particular figure. Rather, if one bears in mind that:
   • the 1993 Township Study estimates a likely yield on the subject land of about 630 lots[8];
   • the draft ODP contemplates a yield in the order of 500 lots on the subject land[10]; and
   • the proposal here is for 887 lots, down from just over 1000 lots before Member Fong

my view that the modifications to the draft Development Plan before me have more "fiddled around the edges" rather than fundamentally shifted from the position before Member Fong. Accordingly, I see a need for the Applicant to start again and work towards a fresh Development Plan that involves a yield much closer to the 500-630 lot range inherent in the 1993 Township Study and the draft ODP.

1. Whilst I would still support some degree of variety in lots sizes, which is consistent with the Clause 22.02-2 objective of recognising "...the demand for housing choice", there need to be less emphasis on lots under 1000 square metres in size. I also consider there to be some major uncertainties whether medium density housing lots as small as 450 square metres are appropriate in this type of "edge of town" location where the main town facilities are some distance away, making the future occupants fairly dependent on car usage.
2. Before moving on, I make the following final comments on this density issue.
   • In relation to the "population projection" information provided by Mr Altmann both at the hearing and subsequently, I regard this information as problematic and carrying insufficient weight to justify any change to the basic findings I have made. Whilst it is true that the south-eastern corner of Gisborne is closer to the city, and that in recent years there has been a significant "tree-changers" demographic trend, I do not see enough convincing/clear evidence that Council's population projection figures have substantially underestimated future growth patterns, and that hordes of tree-changers will want to move to the subject land. I also make the point here that, as things stand, a person living on the subject land would still have to drive into the middle of Gisborne, to be able to then enter the Calder Freeway to visit the city (and vice-versa).
   • It did not make the situation any easier that at the hearing, there was still confusion as to exactly what documents constituted the draft Development Plan, as opposed to mere supporting documents. No consensus position could be reached on this, even after the hearing. Any fresh application should deal with this issue up front.
   • Whilst it is up to the Applicant how it presents its evidence with any future draft Development Plan, it is easier for the Tribunal to give maximum weight to an applicant's witnesses where the applicant uses expert witnesses who have only been recently engaged just for the purposes of any Tribunal hearing (ie compared to consultants who have been involved over the earlier stages of the proposal).
   • I found the colours used in the draft "Landscape Masterplan" to be confusing, because they are too similar. A different range of colours which contrast more with each other would be helpful.
   • I suggest that any revised draft Development Plan be more prescriptive, in terms of the range of lots sizes involved. Currently the lot ranges shown include from 450-1000 square metres, and 1000-2000 square metres, which seems overly vague. A better approach would be to break this down to smaller increments eg 450-700 square metres, 700-1000, 1000-1500, 1500-2000 etc.
   • I had no major problems with the proposed landscaping approach, and I endorse the proposed emphasis on the north-south creek as the major open space feature of the site. However I agree with Council that there could be better east-west connectivity between the lots on either side of the creek, starting with at least one more bridge. There would also seem a good case for a more established east-west bicycle path.

Proposal inadequately deals with proposed integration of the development with broader Gisborne

1. I have indicated above that the other major problem with the earlier proposal relied upon by Member Fong was a failure to properly explain how the proposal would "...integrate with the development of the Gisborne Township and connectivity with Gisborne in terms of pedestrian, bicycle, public transport and open space".
2. Having already rejected the proposal for the "density" reasons outlined above, I do not need to make any detailed/formal findings regarding this second "integration" issue. However I make the following brief comments.
3. On the one hand, I am sympathetic to the Applicant's point of view that it is difficult for the Applicant to unilaterally improve the pedestrian/bicycle links in the local area, or to unilaterally procure any significant improvement in local road access or public transport. Inevitably Council needs to show leadership in this area.
4. On the other hand, I think Council has a valid point that the draft Development Plan heavily focuses on the site itself, with minimal attempt to explain how the site can best integrate and have connections with broader Gisborne. By way of example, it reflects poorly on the bound Development Plan documents that there is no introductory plan showing where the site sits in the context of the services, facilities and open space available in broader Gisborne.
5. With any revised Development Plan, I think a lot more could be done to better explain the context of the site within broader Gisborne, and what opportunities are available for pedestrian/bicycle/public transport/open space synergies and connectivity between the site itself and the area it forms part of. The need for this improvement is reinforced by the detailed requirements of the DPO Schedule. For example, it is not obvious to me that the Applicant has properly considered the requirement under Clause 2 of the DPO Schedule that the Development Plan must show a proposed road layout pattern which (amongst other things) "Provides convenient and safe pedestrian and cycle networks with linkages to adjoining development and major destinations such as schools, shops, sports facilities".

1. For the reasons set out above, notably the "density" problems associated with the proposal, I have made orders that affirming Council's decision not to approve the Development Plan.

[1]2 Mr Altmann indicated that although he has formally been engaged by only some of the owners of the 17 titles making up the subject land, all relevant landowners are aware of the proposal and content for it to be put forward for approval.

[3] Reference documents of Clause 22.02 Gisborne Township.

[6]7 I note here that Mr Jewell's report refers to the proposal as involving 859 lots, in contrast to the Maddocks submission relying on 887 new lots. I have utilised the 887 figure, but my overall findings would not change even if the correct figure is 859 lots.

[8]9 The formal name of this document is the Gisborne Township Residential Review 1993 and the "630 yield" comes from page 12 of Mr Milner's evidence.

[10]11 In this regard, Mr Milner indicated at the hearing that one cannot glean from the draft ODP a neat yield figure for the subject land, but Mr Milner had arrived at the estimated "500 lot" yield by compared the subject land to the relevant information in the ODP. I am satisfied with Mr Milner's approach here.