Macedon Shire Ranges Council v Murone [2004] VSC 525

8. The Council is the Responsible Authority administering the Macedon Ranges Planning Scheme.

11. The respondents are the owners of parcels of land collectively known as 59-95 Brooking Road, North Gisborne ("the permit applicants").

14. The land is zoned Residential 1 pursuant to cl 32 of the Macedon Ranges Planning Scheme. The land is also subject to Development Plan Overlay Schedule 4 pursuant to cl 43.03 of the Planning Scheme.

17. A permit is required to subdivide land pursuant to cl 32.01-2 of the Planning Scheme.

20. Clause 41 of the Planning Scheme provides that the provisions of the overlay apply in addition to the provisions of the zone.

23. Clause 43.04-1 of the Planning Scheme provides:

"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."

" * Be generally in accordance with the development plan. * Include any conditions or requirements specified in a schedule to this overlay."

31. Clause 43.04-2 provides for an exemption from notice and appeal with respect to an application which is generally in accordance with the development plan.

34. Clause 43.04-3 provides for the preparation of the development plan.

"The development plan may consist of plans or other documents and may, with the agreement of the Responsible Authority, be prepared and implemented in stages. The development plan must describe: * The land to which the plan applies. * The proposed use and development of each part of the land. * Any other requirements specified for the plan in a schedule to this overlay. The development plan may be amended to the satisfaction of the Responsible Authority."

38. Schedule 4 to the Development Plan Overlay specifically relates to Brooking Road, North Gisborne. It is necessary to set it out in full.

"1.0 Conditions and requirements for permits Any subdivision must comply with the road layout and lot size distribution indicated in the development plan. Any permit granted will require the provision of reticulated water and electricity, sealed roads and agreed reticulated sewerage. A permit may include requirements relating ot the improvement of road networks in the vicinity of the development. Noise attenuation works may be required for lots adjacent to the Calder Freeway. 2.0 Requirements for development plan The development plan must show: * The location, dimensions and areas of all lots. * The minimum lot sizes in accordance with the Brooking Road, North Gisborne Concept Plan. * The lot layout generally in accordance with the Brooking Road, North Gisborne Concept Plan. * The existing and proposed roads, bicycle paths and pedestrian routes. * The location of existing and proposed open space including open space linkages. * The location of existing and proposed landscaping. * The location of existing habitat values and heritage places. * The location of existing dwellings and associated buildings. * The location of major infrastructure services and drainage lines. * The location of existing and proposed community, commercial and recreation facilities. * The staging of development. 3.0 Decision guidelines Before deciding on any application, the Responsible Authority must consider: * The Brooking Road, North Gisborne Concept Plan. * Whether the proposal will contribute to the integrated development of the area. * The exposure of the site to the Calder Highway. * Whether the proposal will enable the efficient staging of development and extension of reticulated services."

42. It can be seen that the schedule provides for three matters: firstly, conditions and requirements for permits specified in accordance with cl 43.04-1; secondly, mandatory components for a development plan; and thirdly, decision guidelines. Both the mandatory requirements for the development plan and the decision guidelines refer in part to the Brooking Road, North Gisborne Concept Plan.

45. In October 2003 a planning consultant acting for the permit applicants lodged a plan with the Council under cover of a letter dated 16 October 2003 which requested that the plan be approved as a development plan for the purposes of Schedule 4 to cl 43.04.

48. By application for planning permit dated 27 October 2003 the permit applicants sought permission to subdivide the land into 105 residential lots. The present application put forward as the proposed plan of subdivision the same plan as that previously lodged as a proposed development plan.

51. By letter dated 29 January 2004 and by Application for Review bearing the same date, the respondents sought to review the failure of the Responsible Authority firstly, to endorse the development plan and secondly, to grant a permit for subdivision of land. The right to seek review of the failure to endorse the development plan arose pursuant to s.149(1) of the Planning and Environment Act 1987 ("the Act"). The right to seek review of the failure to determine the application for permit arose pursuant to s.79 of the Act.

54. A division of the Tribunal constituted by a single member heard the two applications for review on 30 July 2004.

57. Following the lodging of the s.79 appeal the Council had resolved that had the appeal not been lodged, it would have decided to refuse to grant a permit on nine grounds including: "There is no approved development plan for the area."

60. At the hearing the Council expressly submitted that the overlay prevented the Responsible Authority from issuing a planning permit to subdivide land until a development plan had been prepared to the satisfaction of the Responsible Authority.

63. The Tribunal by a written decision dated 3 August 2004 determined to grant a permit for the subdivision of the land. It directed that a permit issue subject to a series of conditions including the modification of the plan of subdivision.

"1. Before the plan of subdivision is certified under the Subdivision Act 1988, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and when approved shall be endorsed and then form part of the permit. The plans must be drawn to scale and dimensioned and three copies must be provided. The plans must be generally in accord with the plan submitted with the permit application, but modified to show, the satisfaction of the Responsible Authority: a) staging of the subdivision; b) a 16 metre wide road reservation to connect with the abutting property to the north from the western end of the east-west street located in the northern part of the land; c) provision of a vehicle linkage between the eastern and western parts of the east-west street located in the northern part of the land; d) removal of the roundabout to the immediate northeast of the centrally located park and redesign of the intersection; e) provision of a footpath, street lighting, and street trees in Brooking Road along the frontage of the land; f) the road layout changed to satisfy the requirements of Standard C11 of Clause 56 of the Macedon Ranges Planning Scheme without the need for the introduction of artificial slow points within the estate, and to show compliance with Standard C35. This may include modified intersection layouts; g) all lots fronting Brooking Road provided with shared driveways and the lots designed to allow all cars to enter and leave in a forward direction; h) no direct access permitted from Brooking Road to Lots 41 or 42; i) provision of street names in accordance with the Council policy; j) landscaping plan prepared by a suitably qualified professional detailing the following: * provision of street tree planting including: one tree per lot or equivalent to every 15 metres of frontage; * mulching/mounding treatment; * species selection in general accordance with the species found in the surrounding area."

67. The Council contends that there was no power to grant a permit unless and until a development plan was approved. It contends further that, because no order was made disposing of the s.149 Application for Review that application has not been disposed of.

70. The permit applicants contend that under the overlay control the precondition to the grant of a permit is that a development plan has been prepared to the satisfaction of the Responsible Authority. The Tribunal was placed in the position of the Responsible Authority by the s.149 appeal and the Tribunal's reasons demonstrate that it reached the conclusion that a development plan had been prepared to its satisfaction.

73. The resolution of these contentions turns upon the terms of the Tribunal's decision. A reading of that decision demonstrates the following:

(a) Two separate appeals with different reference numbers were before the Tribunal.

(b) The summary catchwords recite as an issue "whether development plan is in accord with requirements of Planning Scheme."

(c) The hearing type is described in the heading as "merits hearing of Applications for Review pursuant to ss.79 and 149(1)(a) and (d) of the Planning and Environment Act 1987."

(d) A single order is made.

(e) That order is that:

"A permit is granted and must be issued for the subdivision of land at 59-95 Brooking Road, North Gisborne, subject to the following condition: ..."

(f) Paragraph 4 of the Tribunal's reasons correctly states the development plan prerequisite for a permit.

"Pursuant to the Development Plan Overlay a permit must not be granted to 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."

(g) Paragraph 5 of the reasons indicates that the plan before the Tribunal extended beyond the land proposed to be subdivided and sought to address development plan issues.

"The development plan and the plan for the proposed subdivision are the same document. It shows not only the layout of the proposed subdivision, but also the surrounding land, including the approved subdivisions to the west. It shows road connections to this subdivision and to as yet broadacre land to the north and east. Prior to the planning permit being lodged with the responsible authority for the proposed subdivision the plan was submitted as the development plan required pursuant to the Development Plan Overlay. The responsible authority has failed to approve the plan as a development plan and has failed to grant a permit for the proposed subdivision within the prescribed time."

(h) Paragraph 6 records that one of the Council's grounds for opposing the grant of a permit was that there is no "approved development plan for the area."

(i) Paragraph 7 records the nature of surrounding land and the issue of a permit on 17 April 2003 to subdivide abutting land to the west into 22 lots consequent upon a decision by the Council to grant a permit for such subdivision and the affirmation of that decision by the Tribunal on appeal ("the Carpenter subdivision").

(j) Paragraph 8 rejects a contention by the Council that the land is remote from Gisborne township.

(k) Paragraph 9 records that no development plan appears to have been required by the Council for the Carpenter subdivision. It goes on to record that the solicitor appearing for the Council in the present case submitted the development plan put forward in this case was defective both because it did not contain required information, and because it was not in accordance with the Brooking Road, North Gisborne Concept Plan. In so submitting, however, it was "readily conceded" that the Concept Plan was "sadly out of date".

(l) Paragraph 10 of the reasons goes through the requirements of Schedule 4 of the Development Plan Overlay and states as follows:

"Schedule 4 to the Development Plan Overlay states that any subdivision must comply with the road layout and lot size distribution indicated in the development plan. The proposed development before me does just that, because the development plan and the proposed subdivision plan are one and the same document, but lodged separately as a development plan and then subsequently as a plan accompanying the permit application to subdivide. Does it meet the requirements for the development plan specified in Clause 2 of Schedule 4 to the Development Plan Overlay? It shows the location, dimensions and areas of all lots. It shows minimum lot sizes in accordance with the Brooking Road, North Gisborne Concept Plan in the sense that the minimum lot size proposed is far in excess of the lot sizes of 450 square metres to 1000 square metres for the subject land as shown on the Concept Plan. The Concept Plan does not include a lot layout, just a schematic layout of roads. I accept that the schematic layout of roads shown on the Concept Plan would be a major determinant of lot layout, but the fact remains that the Concept Plan does not contain a lot layout. The proposed plan of subdivision cannot therefore be said to have a lot layout different from the lot layout shown on the Concept Plan. The other requirements for the development plan set out in Clause 2 of Schedule 4 to the Development Plan Overlay either are met by the proposal before me or could be met by minor amendments to it."

(m) Paragraph 11 of the reasons records that counsel for the defendants had agreed to a number of amendments to the plan in accordance with suggestions made by a consultant traffic engineer called on their behalf.

"Mr Ruta agreed on behalf of his clients to a number of amendments to plan suggested by Mr Higgs. These include providing a connection to Mr Giudice's land to the north. The lack of connection and the constraints that lack may impose on future subdivision of his land was Mr Giudice's concern. That concern was addressed by that amendment. Other amendments suggested by Mr Higgs and reflected in my order dealt with connection to the abutting land to the west, a possible future access point from Brooking Road in the southwest part of the land, and a slightly revised internal road network."

(n) Paragraph 12 of the reasons rejects the proposition that subdivision of the subject land would be premature and notes that the thrust of counsel's submission was that development was premature in the sense that the Council had not put in place an updated strategy to guide the planning of undeveloped land zoned Residential 1. Nor had the Council put in place a Development Contributions Plan to assist in financing infrastructure. The Tribunal states:

"My response is that this Council (and its predecessor) has had many years to do these things, but hasn't. It is not reasonable for it now to say to prospective subdividers of land already identified as appropriate for suburban style residential development by virtue of its Residential 1 zoning that they will just have to wait, for an unspecified period of time, until the work that should have been done years ago is done."

(o) In paragraph 13 the Tribunal indicates further why additional infrastructure required for the subdivision is unlikely to be significant.

(p) In paragraphs 14 and 15 the Tribunal indicates why it does not require or propose amendment to certain conditions sought by the Council and the relevant water authorities.

103. It is difficult not to have sympathy with the permit applicants when the decision is read as a whole. It is apparent firstly, that the Council did not deal with the development plan or the permit application within the time that it should have, and secondly, that the Tribunal was squarely of the view that the merits of the case were with the permit applicants. Furthermore, insofar as the Council did raise a case on the merits such case was principally founded on the Council's own failure to update strategic planning for the area.

106. Having said this, however, the question remains whether the Tribunal resolved the disputes before it in accordance with law.

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

112. The critical question in the present case is simply whether the Tribunal's reasons demonstrate that it concluded a development plan had been prepared to its satisfaction. If it did so conclude then the initial requirement of cl 43.04-1 of the Planning Scheme was in substance met.

115. In my view it is plain from paragraph 10 of the reasons which I have quoted above that the Tribunal considered the plan before it when viewed as a development plan was substantially but not entirely satisfactory.

118. The Tribunal required "minor amendments" to achieve compliance with the Development Plan Overlay. Those amendments can be seen from paragraph 11 of the reasons to include substantial refinements to the proposed road layout. These refinements were in accordance with the recommendations of Mr Higgs, an experienced traffic engineer who gave evidence on behalf of the permit applicants. The road layout is a matter of central importance by reason of the provisions of Schedule 4. Clause 1 of the Schedule provides that any subdivision must comply with the road layout indicated in the development plan. Clause 2 of the Schedule requires a development plan to show the existing and proposed roads.

121. Other matters forming the subject of specific requirement pursuant to cl 2 of Schedule 4 are:

" * The location of existing and proposed landscaping. * The staging of development."

125. Condition 1 of the permit granted by the Tribunal specifically contemplates firstly, that the proposed staging of the subdivision be clarified; secondly, that a series of road layout matters be addressed and thirdly, that a landscape plan be provided. These matters are required to be the subject of a further plan or plans "to the satisfaction of the Responsible Authority."

128. As I have said the Tribunal's reasons expressly state that the requirements for the development plan could be met by amendments to it. When this conclusion is read in conjunction with the permit conditions, it is in my view apparent that the Tribunal has sought to achieve such amendments by way of permit condition.

131. There is an obvious difficulty with this approach. The Development Plan Overlay requires that a development plan be prepared to the satisfaction of the Responsible Authority as a precondition to the grant of a permit. No such satisfactory plan existed at the time of the Tribunal's decision to grant a permit.

134. The plan was not endorsed by the Tribunal itself with such amendments as it required to achieve compliance with the overlay control. The further resolution of the plan was sought to be achieved by the provision of a subsequent plan to the satisfaction of the Responsible Authority.

137. The Development Plan Overlay required the satisfaction of the Responsible Authority as a condition precedent and not as a condition subsequent to the grant of the permit.

140. Permit condition 1 deals specifically with matters which Schedule 4 to the Development Plan Overlay requires the development plan to address. It thus has the effect of a condition resolutive. It in effect provides for the resolution of the ultimate form of the development plan together with the plan of subdivision. The control does not allow this. The form of the development plan must be resolved before subdivision is permitted.

143. There is also some force in Mr Peake's submission that the Tribunal's error is demonstrated by its very failure to make any order with respect to the development plan. This is not a case of the sort considered by Balmford J in Moonee Valley City Council v Quadry Industries Pty Ltd & Ors[1]. In that case the Court found that the words used in determining an appeal were clear in their intention despite their failure to adopt the language of the statute. In the present case no words were used to determine the s.149 application. The Tribunal did not purport to dispose of the s.149 matter and its failure to do so further confirms that it did not reach a state of final satisfaction with the respect to the form of development plan before it.

146. For the above reasons leave to appeal will be granted and the appeal will be allowed. The order of the Tribunal dated 3 August 2004 will be set aside. The matter will be remitted for further hearing in accordance with law by a division of the Tribunal constituted differently from that which made such order.