a

The incorporated plan under the Incorporated Plan Overlay applying to the subject land is the document (including text and figure) entitled Grandview Square Incorporated Plan dated April 1999.

b

Planning permit application MPS 2005/0237, which is the subject of this application for review, is generally in accordance with the Grandview Square Incorporated Plan.

2 This matter is listed for further hearing before a reconstituted Tribunal on 30 November 2005 at 10.00am for half a day.

1 Application P2129/2005 is a review of the refusal by Moreland City Council to grant a permit for 18 apartment style dwellings in 2 three storey buildings on land that is part of Pentridge Village, Coburg, which is the site of the former Pentridge Prison.

2 The first reason for the council's refusal is that:

1. The proposed development is not generally in accordance with Grandview Square Incorporated Plan, April 1999 and is therefore prohibited.

The purpose of this hearing is to consider whether this ground of refusal can be sustained. The permit applicant seeks a declaration from the Tribunal that in fact the proposed development is generally in accordance with the Grandview Square Incorporated Plan, April 1999 and is therefore not prohibited. I have decided to grant those declarations for the following reasons.

3 The permit applicant is the developer of the Pentridge Village Estate. What has been approved and developed so far on the Pentridge Village Estate provides a mixture of housing from detached dwellings on single lots to attached dwellings in buildings in two to three storeys, generally subdivided vertically. The development the subject of this proceeding proposes the construction of 18 dwellings in 2 three storey buildings. A horizontal subdivision is proposed to create lots comprising each of the dwellings and associated car parking. In external form and appearance the development is not dissimilar to other apartment buildings that have been approved and built.

4 The subject site is zoned Residential 1 under the Moreland Planning Scheme. It is also affected by schedule 1 to the Incorporated Plan Overlay. Under the Residential 1 Zone, the use of the land for the purpose of dwelling is permitted as of right but a permit is required to construct a building. Under the Incorporated Plan Overlay, clause 43.03-1 provides that a permit must not be granted to construct a building or carry out works until an incorporated plan has been incorporated into the planning scheme. A permit granted must:

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Be generally in accordance with the incorporated plan, unless a schedule to this overlay specifies otherwise.

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Include any conditions or requirements specified in a schedule to this overlay.

5 Schedule 1 to the Incorporated Plan Overlay allows for subdivision other than generally in accordance with the Incorporated Plan, but as this proposal relates only to development the development must be generally in accordance with the incorporated plan.

6 Clause 2 of schedule 1 sets out a series of decision guidelines that a responsible authority is required to consider where relevant and these include:

•

The provisions of the Grandview Square Incorporated Plan.

7 The schedule to clause 81 of the planning scheme includes the "Grandview Square Incorporated Plan - April 1999" as a document which has been incorporated into the planning scheme.

8 A document was tendered at the hearing entitled "Grandview Square Incorporated Plan: prepared under the requirements of the Incorporated Plan Overlay", dated April 1999.[1] The front page of the document was stamped with the following words:

This is a true copy of the amendment approved by the Minister for Planning and Local Government on

[Signature] Leigh Phillips Coordinator Amendment Services

9 The document comprises six pages headed "Grandview Square Amendment Documentation" and a diagrammatic plan entitled "Grandview Square Incorporated Plan". The plan does little more than show an indicative alignment of streets, an area of public open space and potential linkages to parkland and other surrounding areas.

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What is the incorporated plan under the planning scheme? Is it the whole document, which includes text and plan, entitled "Grandview Square Incorporated Plan" or simply the plan or figure within the document of the same name?

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Is the proposed development generally in accordance with the incorporated plan? In particular, can the proposed development be characterised as conventional residential development as this term is used within the context of the Grandview Square Incorporated Plan document?

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To what extent, if any, does the exclusion of the third party notice and review rights influence the interpretation of whether a development is generally in accordance with the incorporated plan?

11 On the face of it, the written document entitled Grandview Square Incorporated Plan dated April 1999 would appear to be the incorporated plan for the purpose of the Incorporated Plan Overlay. A doubt was cast upon this interpretation by the applicant who referred to section 3.0 "Vision" of the document, which states:

The Grandview Square Incorporated Plan is shown in Figure 1. The principle elements of the Plan include:-

There then follows a series of nine dot points elaborating these elements. The section concludes with the following paragraph:

The Grandview Square Incorporated Plan is not prescriptive. The development of each stage will be assessed on its merits, having regard to the overall development concept and the design principles.

12 In submitting that the incorporated plan was the figure only and that the text is not part of the incorporated plan, the applicant relied upon a comparison of the text of the Grandview Square Incorporated Plan document and the comprehensive development plan document, which relates to the Comprehensive Development Plan Overlay covering the heritage precincts of Pentridge Village. On page 2 of the comprehensive development plan document, under the heading "About this Comprehensive Development Plan" the first sentence says:

This Comprehensive Development Plan (CDP) is an incorporated document of the Moreland Planning Scheme and comprises both this text and a plan.

13 The incorporated plan document does not include similar text. It was submitted that the conclusion to be drawn from the comparison of these two documents, produced presumably at the same time and certainly coming into effect at the same time, is that the incorporated plan for the purposes of schedule 1 to the Incorporated Plan Overlay and that is included in the schedule to clause 81 of the planning scheme is in fact the plan, ie Figure 1, in the document.

14 I do not agree with this submission. I find that the incorporated plan for the purpose of the Incorporated Plan Overlay and as included in the schedule to clause 81 is the entire document entitled Grandview Square Incorporated Plan, which includes both text and figure. I do so for the following reasons.

15 The document itself purports to be the incorporated plan prepared under the requirements of the Incorporated Plan Overlay. It is stamped as being a true copy of the amendment approved by the Minister whereas the figure within the document is not. As an incorporated plan can only be incorporated into a planning scheme by way of an amendment to the planning scheme, this stamp is evidence that overrides any words to the contrary within the document so stamped. Further weight is given to this conclusion by reason that the document is dated April 1999 but the figure is not so dated. The incorporated plan referred to in the schedule to clause 81 is "Grandview Square Incorporated Plan - April 1999". In fact the diagrammatic plan within the document is not even labelled as Figure 1, but must be assumed to be the relevant figure as it is the only plan in the document.

16 By contrast to the words at the commencement of section 3.0, section 1.0 is headed "About this Incorporated Plan" and commences:

This Incorporated Plan is approved under the requirements of Incorporated Plan Overlay clause 143 of the Moreland Planning Scheme.

A heading to each page of the document indicates that it is part of the amendment documentation. There is detailed guidance provided throughout the document as to the future development of the incorporated plan area which supplements and makes intelligible the very limited details on the plan in Figure 1.

17 To the extent that there is any ambiguity created by the reference in section 3.0 of the document to the Grandview Square Incorporated Plan being Figure 1, I give greater weight to what appears on its face to be the most likely and sensible outcome, which is that it is the entire document that is the incorporated plan and the reference within the text to the plan being what is shown in Figure 1 is no more than a sloppy piece of drafting. To adopt contrary view, one would need to consider what status the rest of the text within the document would have. I would have to conclude that it had virtually no standing in statutory terms if it is not part of the incorporated plan and the question then arises, what is its purpose? In my view, the vision and the design principles and elements expounded in the document are all intended to guide the future development of the area covered by the Incorporated Plan Overlay. To find that the document as a whole was not the incorporated plan but only Figure 1 would give precedence to what I consider to be no more than a piece of poor drafting by a non-legal author. I do not consider such an interpretation can be justified.

18 Nor do I not consider that any weight can be placed upon a comparison between the wording of the incorporated plan and the comprehensive development plan. What is the incorporated plan must be decided by reference to the incorporated plan document itself and what is in the planning scheme. Having regard to the identification of the Incorporated Plan in the schedule to clause 81 and to the Grandview Square Incorporated Plan document as a whole, including its words, tenor and content, it is clear that the incorporated plan for the purposes of the Incorporated Plan Overlay is the entire document of which the plan in the figure within the document forms part.

IS THE DEVELOPMENT GENERALLY IN ACCORDANCE WITH THE INCORPORATED PLAN?

19 Overall, general accordance is a question of fact to be judged on the facts and circumstances of each case. 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.[2]

20 The reason why the responsible authority says that this development is not generally in accordance with the incorporated plan is because it cannot be characterised as conventional residential development as this term is used within the Grandview Square Incorporated Plan. It was submitted by Mr Rantino that it was not the responsible authority's position that the only form of conventional residential development that may be approved under the incorporated plan is single dwellings on single lots. Rather, it appears that it is the three storey character of this development and its subdivision horizontally, rather than vertically, that takes it outside the ambit of conventional residential development. Although the responsible authority has approved a number of other developments within the Pentridge Village Estate which appear very similar, externally, to the proposed development, it seems that a recent proposal for a seven storey building within the Estate, which generated some community concern and controversy, has triggered the council's change in attitude and an insistence on more conventional residential development as being what the incorporated plan envisages. It was submitted by the responsible authority that three storey buildings with apartments constructed vertically on top of each other would not ordinarily be regarded as conventional residential development.

21 The reference to conventional residential development appears in the "Introduction" in section 2.0 of the Grandview Square Incorporated Plan. The introduction refers to the development of the former Coburg Prison Complex and states that the Grandview Square Incorporated Plan applies only to the residential components of the site which are affected by the Incorporated Plan Overlay. The balance of the site is zoned for comprehensive development and will be developed in accordance with a comprehensive development plan. The introduction then goes on to state:

Importantly, the areas proposed for conventional residential development generally lie outside the existing heritage Precincts on the site. Sensitive issues related to the reuse and adaptation of the heritage Precincts to new and contemporary uses will therefore be more fully addressed under the Comprehensive Development Plan.

The purpose of this Incorporated Plan is to provide clear guidance and direction to the subdivision and development of the residential components of the Grandview Square proposal. This is within the context of the development vision for the whole site and the full integration of residential areas with heritage mixed use Precincts to create a dynamic and interactive environment. (Tribunal's emphasis)

22 The only other reference to conventional residential development in the incorporated plan appears in section 4.0 "Design Principles and Elements" in the context of "Housing and Residential Densities" as follows:

Merri Place Residential[3] offers a mix of residential choice and housing diversity with an emphasis towards conventional lot residential development which is sensitive to the Merri Creek environs and adjoining parklands to the north. (Tribunal's emphasis)

23 The term c_onventional residential development_ is also used in the explanatory report for Amendment L64 to the Moreland Planning Scheme, which was the amendment that rezoned the Coburg Prison Complex. The Complex was divided into two sections. The area that included many heritage buildings and structures (eg bluestone walls) that were included on the Heritage Register were included in a Comprehensive Development Zone. The remainder of the area was proposed to be originally included in an Urban Residential 1 Zone, which was changed to a Residential 1 Zone on the introduction of the new format planning scheme for Moreland. An Incorporated Plan Overlay was also applied to the residential zoned area. In describing what the amendment does, the explanatory report for Amendment L64 said:

To achieve the above objectives for the development and use of the land, the amendment introduces the following planning controls over the land:

A Comprehensive Development Zone to acknowledge the importance of the land and the need for development which is fully integrated with and sensitive to the heritage elements of the site. The Comprehensive Development Zone allows a wide range of uses and incorporates a Comprehensive Development Plan that forms part of the amendment.

An Urban Residential 1 Zone to apply to areas of the site to be developed for conventional residential purposes, which are not directly affected by the heritage Precincts of the site. An Incorporated Plan Overlay applies to the Urban Residential 1 Zone, which includes a Development Plan that is incorporated as part of the amendment. Development of land zoned Urban Residential 1 will be guided by this Plan. Use and development, including subdivision that is generally in accordance with this Plan, will be exempt from the notification and appeal provisions of the Planning and Environment Act 1987. (Tribunal's emphasis)

Provision of a mix of residential living opportunities including medium density housing, small lot and conventional lot development to broaden the range of living opportunities within the Coburg area.

25 The responsible authority says that these terms are used in contradistinction and that it was intended that medium density housing be provided with the Comprehensive Development Zone but conventional housing would be located in the residentially zoned land. The responsible authority also relies upon the reference to the principle expressed in the incorporated plan that the design of subdivisions must accord with VicCode 1 to support its argument that what is contemplated is conventional residential development.

26 I disagree with the council's interpretation. In my view the distinction drawn in the explanatory report for Amendment L64 is between an exclusively residential precinct on the one hand and a mixed use precinct on the other hand. The distinction between the Comprehensive Development Zone and the residential zone is that the area in the Comprehensive Development Zone contains heritage assets and will allow a wide range of uses which will "provide for a mix of residential, tourist and commercial uses that can integrate the site with the surrounding uses whilst complementing the heritage significance of the site".[4] By contrast, the area covered by the Incorporated Plan Overlay is intended solely for residential use and this is reflected by its residential zoning. I consider this is what is intended to be conveyed when the term "conventional residential purposes" is used in the explanatory report for Amendment L64 it is the distinction between solely residential use and mixed use that is being referred to.

27 I consider that the same meaning is to be given to the term conventional residential development where this is used in section 2.0 in the introduction of the Grandview Square Incorporated Plan. A distinction is being drawn between the areas proposed solely for residential development compared with the heritage precincts that will accommodate "new and contemporary uses" in the "heritage mixed use Precincts". There are no grounds to be found within either the explanatory report to Amendment L64 or the Grandview Square Incorporated Plan for drawing the conclusion that the reference to conventional residential development refers to a style of housing or, based on the distinction the responsible authority is attempting to draw in the present case, between vertical or horizontal forms of subdivision.

28 The reference to conventional lot residential development, which appears in section 4.0 "Design Principals and Elements" in the incorporated plan is qualified by the words which precede the phrase, which talk about a mix of residential choice and housing diversity with an emphasis towards conventional lot residential development. In fact, a significant proportion of the Pentridge Village Estate has been subdivided into "conventional" lots for detached housing. There has therefore been an emphasis on this type of subdivision. However, an emphasis does not imply that this is the only type of subdivision contemplated. Indeed, such an interpretation would undermine the intent or purpose of Amendment L64 that there will be a mix of residential choice and housing diversity "to broaden the range of living opportunities within the Coburg area.

29 Finally, reference in the incorporated plan that the design of subdivisions must accord with VicCode 1 is in my view a reference to subdivision design, not lot sizes. Elsewhere it is stated that the incorporated plan "also responds to the VicCode 1 principles of legibility, connectivity and opportunities for solo orientation."

30 In overall terms, I find that the council's interpretation of the Grandview Square Incorporated Plan has been highly selective. There is nothing within the incorporated plan that would preclude residential development of the style proposed by this application. The whole tenor of the incorporated plan is to provide a mix of residential choice and housing diversity. This has been achieved by the mix of residential opportunities that has been provided across the site thus far. The proposed development sits comfortably within that mix and I find that it can be said to be generally in accordance with the incorporated plan.

EXCLUSION OF THIRD PARTY NOTICE AND REVIEW RIGHTS

31 It emerged at the hearing that council's attitude about the style of residential development contemplated by the Grandview Square Incorporated Plan may have been influenced by a recent proposal for a seven storey apartment building in the Pentridge Village Estate. This generated local community opposition and controversy but third party objectors were shut out of the process by virtue of the provisions of the Incorporated Plan Overlay, which provide that an application under any provision of the scheme which is generally in accordance with the incorporated plan is exempt from notice and appeal.[5] This has influenced the council in making a decision about whether the application is generally in accordance with the incorporated plan. The council does not wish to see third party objectors shut out of the process.

32 As a matter of law, these factors are irrelevant to a responsible authority's consideration of whether an application is generally in accordance with an incorporated plan. If a responsible authority does not want third party objectors exempted from notice and review rights, the appropriate action is to amend the planning scheme to remove the Incorporated Plan Overlay. But so long as the land is within an Incorporated Plan Overlay, a responsible authority (and others) are bound by the provisions of the planning scheme and the responsible authority must make decisions under the planning scheme according to law.

33 The Incorporated Plan Overlay is a tool commonly applied to large areas being developed or redeveloped where it is appropriate that a plan be prepared to coordinate proposed use or development. The general public has an opportunity for input to the content of the plan at the time it is incorporated by way of amendment into the planning scheme. Once a plan is incorporated in the planning scheme it cannot be changed without further amendment. In this way it provides certainty about the nature of the proposed use or development of the area both to third parties and to developers. Third parties (including potential purchasers) know that the area will continue to be used or developed generally in accordance with the incorporated plan and if this plan is to be changed, they will have an opportunity to comment. It provides certainty to developers who know they may proceed to develop generally in accordance with the incorporated plan without the potential delays associated with notice requirements and third party review rights in connection with planning permit applications for proposals that conform to plan requirements. Thus people buying into an area covered by an incorporated plan do so knowing that the area is under development and that the development will proceed in a certain way. Once development has been completed, the plan, and indeed the overlay, may no longer be necessary. As the DSE planning practice note on Applying the Incorporated Plan and Development Plan Overlays notes:

There is no justification for retaining a plan or overlay providing exemptions from notice and review for compliant proposals when the plan area has become a normal part of the urban fabric, experiencing only incremental change.[6]

34 It is important to note that the Incorporated Plan Overlay does not change the scope of discretion under other provisions of the planning scheme. The responsible authority must still exercise its discretion whether to grant a permit under relevant provisions of the scheme even if the proposal is generally in accordance with the incorporated plan. However, it would be inappropriate for a responsible authority to attempt to frustrate the purpose of an incorporated plan by refusing permits for proposals which are generally in accordance with it on the basis that the incorporated plan no longer reflects the responsible authority's view about how the area should be used or developed. If the council changes its mind, it should change the incorporated plan, not simply ignore it or attempt to get around it. Similarly, there is no basis for departing from the plan simply because some members of the community dislike some aspects of it. A responsible authority should not attempt to activate third party rights by holding that a proposal is not generally in accordance with the plan on spurious or unsubstantial grounds. Proper process must be observed.

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The incorporated plan under the Incorporated Plan Overlay is the full text of the document entitled Grandview Square Incorporated Plan dated April 1999.

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The permit application in the present case is generally in accordance with the incorporated plan.

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The exclusion of third party notice and review rights under the incorporated plan overlay is not a relevant factor as a matter of law in deciding whether a proposal is generally in accordance with the incorporated plan.

36 As a result of these conclusions, the first reason for the council's refusal to grant a permit cannot be sustained. It is therefore appropriate that a further hearing is listed to consider the merits of the application for review.

[1] Prepared by Tract Consultants Pty Ltd in association with Grogan Richards Pty Ltd, RBA Architects Pty Ltd, Woodwood Clide Pty Ltd, Essential Economics Pty Ltd and Breese Pitt Dixon Pty Ltd

[2] See Canet v Brimbank CC [2003] VCAT 13 and Raftopoulos v City of South Melbourne (unreported) appeal No 1989/34936.

[3] It is unclear what Merri Place Residential refers to. It is not defined within the incorporated plan or noted on the plan in Figure 1. It appears to be yet another example of the rather sloppy drafting within the document as a whole.

[4] See purpose of the Grandview Square Comprehensive Development Plan in schedule 1 to the Comprehensive Development Zone, Moreland Planning Scheme.

[5] Clause 43.03-2 Moreland Planning Scheme

[6] VPP Practice Note: applying the Incorporated Plan and Development Plan Overlays (January 2003) page 8.