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[21]
austlii:vic/PPV/2025/53
General information, not legal advice.
PPV
2025-11-17
Original judgment source is linked above.
[The application of the DPO25 is appropriate with the following amendments:](The application of the DPO25 is appropriate with the following amendments:)
A roundabout is not required in the foreseeable future at Watt Road/Racecourse Road intersection. A second vehicular access on Racecourse Road is not essential and would be contradictory to the Mornington North Outline Development Plan, 2013 traffic management requirements of restricting vehicular access points onto Racecourse Road [south of Carbine Way].
The potential for risk of harm from noise associated with industrial uses, traffic and music events at Mornington Racecourse can be adequately managed.
Permits P23/2400 and P23/2402 are consistent with the provisions of DPO25 but the wording of conditions should be reviewed to ensure they are consistent with the Practitioner's Guide to Victoria's Planning Schemes.
Based on the reasons set out in this Report, the Panel recommends that Council:
Issue planning permit P23/2400 for the subdivision of the land into 57 lots, removal of reserve, creation of reserves, removal of vegetation and associated works subject to the permit conditions in the Panel recommended version in Appendix D of this report.
Issue planning permit P23/2402 for the subdivision of the land into 59 lots, creation of reserves, removal of vegetation and associated works subject to the permit conditions in the Panel recommended version in Appendix E of this report.
Prior to the issue of the permits review the wording of the conditions to ensure consistency with Practitioner's Guide to Victoria's Planning Schemes.
The purpose of the Amendment is to create a new residential estate in Mornington known as the 'Woodbyne Precinct' by:
The two planning permit applications P23/2400 and P23/2402 are for subdivision into 57 lots and 59 lots respectively and the provision of associated infrastructure.
Planning permit application P23/2400 applies to 4, 6, 8 and 10 Woodbyne Crescent, and the Council owned Watt Road plantation reserve between 8 and 10 Woodbyne Crescent (part of Reserve No. 1, PS346179), Mornington and seeks to:
Planning permit application P23/2402 applies to 2 and 5 Woodbyne Crescent and 1 and 2 Albany Way, Mornington and seeks to:
The current subdivision layout are shown in Figure 2 and detailed in Table 1.
Figure 2 Subject land current subdivision layout
Table 1 Subject land lot information and permit application
Council resolved to seek authorisation for the Amendment on 11 July 2023. The Amendment and permit applications were publicly exhibited by Council for 9 weeks, from 21 November 2024 to 24 January 2025. The extended exhibition period accounted for the 2024/2025 summer holiday period. Council held three in-person community information sessions at the Mornington Council office.
On 22 July 2025, Council considered submissions to the Amendment and, in response, adopted a number of changes to the exhibited documents and resolved to refer the Amendment to a Panel.
The Panel has assessed the Amendment against the principles of net community benefit and sustainable development, as set out in Clause 71.02-3 (Integrated decision making) of the Planning Scheme.
The Panel considered all written submissions made in response to the exhibition, observations from site visits and submissions, evidence and other material presented to it during the Hearing. All submissions and materials have been considered by the Panel in reaching its conclusions, regardless of whether they are specifically mentioned in the Report.
This Report deals with the issues under the following headings:
The Panel directed Council to circulate a 'Day 1' version of the Amendment documentation before the commencement of the Hearing and a final version with its closing submission. Council circulated:
The Day 1 version incorporated changes in response to submissions. The final version incorporated further changes in response to matters raised during the Hearing.
Except where stated otherwise, the Panel supports the changes in the Day 1 and final versions, which provide greater clarity and improve the operation of the controls.
The Proponent was given the opportunity to provide written comments on the final versions following the close of the Hearing. The Proponent advised that it supported Council's final version.
The Panel has had regard to all comments on the final version in developing its recommended version.
The following Panel's recommended versions all use Council's final version as the starting point:
This chapter identifies planning context relevant to the Amendment.
The issue is whether the Amendment is strategically justified.
Council submitted that the Amendment's strategic justification is founded on a number of recently released State planning policies intended to deliver more housing on underutilised land within the Urban Growth Boundary. These aligned with the Council's adopted HSS which identified the subject land as an investigation area.
The Mornington North Outline Development Plan, 2013 (ODP) contained goals that were appropriate at the time but which predate:
...the Statewide strategic planning associated with the Plan for Victoria, Plan Melbourne and the Victorian Housing Statement, as well as Council's more recent strategic planning work.
Council added that current planning policy places a greater emphasis on the creation of infill housing and consequently, the actions recommended in the ODP were no longer relevant.
The Proponent submitted that the site is well placed for the proposed rezoning. In addition, the development of the land will provide for affordable housing and a superior open space outcome.
Mr Negri gave evidence on behalf of the Proponent. He concluded that there:
...is strong strategic support for the proposed planning scheme amendment to facilitate the development of the subject land for increased density residential dwellings.
In summary his reasons for this conclusion were because:
...the land is located in an urban area, in an existing settlement and within the Urban Growth Boundary, with convenient access to jobs, services, infrastructure and community facilities, where State and local policy directs future growth to be directed (Clause 02.03-1 Settlement, Clause 11 Settlement).
He added that the development plan, exhibited as part of the Amendment, provided dwelling diversity and had considered and mitigated potential adverse amenity impacts.
The Panel agrees with Mr Negri's evidence and Council and the Proponent's submissions that the Amendment is strategically justified, particularly in the context of recent State housing policy changes.
The Panel recognises that the HSS identified the subject land as an investigation area which effectively initiated a process which has led to this Amendment. In effect, the Proponent has undertaken that investigation through the commissioning of a number of background reports to support the rezoning of the land. These investigations, in addition to the further and more recent work on traffic management and noise issues, in the Panel's view, demonstrate the suitability of the land for more intensive redevelopment and also, provides further strategic justification.
For the reasons set out in this report, the Panel concludes that the Amendment:
Mornington Peninsula Planning Scheme Amendment C247morn be adopted as exhibited with the changes recommended in this report.
The issue is whether the changes proposed to Clause 11.03-6L are appropriate.
In Clause 11.03-6L, the reference to the ODP sits under the 'Policy document' heading and the precincts map from the ODP (Figure 3) is included in Clause 11.03-6L but with a different background.
For all precincts, the strategies in 11.03-6L are largely taken from the ODP's Land Use Framework.
In the Land Use Framework, the ODP contains the following policies for Precinct 6 (the subject land):
Section 7 - Implementation: Review of Planning Controls, contains the following:
The changes proposed to in Clause 11.03-6L (Regional and local places - Mornington North) are:
Council advised the Panel that one of the conditions of authorisation required changes to Clause 11.03-6L to reflect the increased density expectations of the site as a result of the application of the DPO25 and NRZ42. In response, Council stated that it had updated the clause with changes made to Precinct 6 - Woodbyne Crescent/Albany Way area.
Several submissions considered the higher densities proposed by the Amendment were inconsistent with current housing policy.
Council submitted that its adopted housing policy is the HSS which Amendment C219morn has sought to implement. Amendment C219morn was adopted by Council on 6 August 2024 and is with the Minister for Planning for approval. Council added that:
The subject land is nevertheless identified in Council's HSS as an 'investigation area' where additional housing supply may be provided in the future, subject to proper planning to strategically justify a rezoning.
The HSS anticipates investigations will be conducted before a 'change category' to higher density residential development can be applied. Those investigations have been undertaken by the Proponent and have demonstrated that the site is appropriate for a higher density residential development.
Council submitted that the ODP is a "background policy document" referenced in clauses 11.03-6L, Design and Development Overlay Schedule 22 and Design and Development Overlay Schedule 19. It stated that the:
...ODP provides a strategic planning framework guiding decisions on land use, development, transport and infrastructure within its area. It identifies key issues and opportunities for the area, and provides a vision and objectives statement, as well as framework plans for land use, built form, transport and infrastructure. The amendment land comprises the whole of Precinct 6.
Mr Negri observed that the only strategy proposed to be changed by the Amendment was the one dealing with support for low density housing. He added that the following precinct strategies would be unchanged by the Amendment:
He supported the changes to the local planning policy because the strategic context of the precinct as described in proposed Clause 11.03-6L would be consistent with the ambition identified in the HSS investigation area.
The Panel accepts the Council and Proponent's submissions as well as Mr Negri's evidence that the changes to Clause 11.03-6L are consistent with the HSS and strategically justified.
However, the changes to Clause 11.03-6L are fundamentally at odds with the Land Use Framework policies for Precinct 6 in the ODP which Council identified as a background policy document. The ODP is at least 12 years old and the planning and housing landscape has changed over that time and more so recently. Nevertheless, it creates a conflict between the clause and referenced background document which Mr Negri thought should have been addressed as part of the Amendment. The Panel agrees with Mr Negri.
The disparity between the two documents is not of an order to affect the progress of the Amendment, however, it is not good planning practice to create a conflict between the clauses in a planning scheme and a referenced background document. While the remainder of the ODP may very well remain relevant, Council should consider, at a minimum, revising the ODP Land Use Framework policies for Precinct 6.
3.2 The Neighbourhood Residential Zone Schedule 42
The issue is whether applying NRZ42 to the subject land is appropriate.
Some submitters opposed the application of the NRZ42 principally because it would allow higher densities. In a number of these submissions, the substantive issue was the proposed increase in residential densities rather than the specific elements of the NRZ42.
Other submitters considered a retirement village a suitable use for the land. Submitter 130 stated that the density allowed did not reflect the surrounding neighbourhoods and the scale and design of development should complement the existing residential area.
Council submitted that the NRZ42 is a new zone schedule and is similar to the proposed NRZ2 for the adjoining residential area to the west (Eden Park Drive residential estate) that was adopted by Council under Amendment C219morn. It added that the NRZ42 is based on the neighbourhood type 'Garden Court 1' identified in Council's Neighbourhood Character Study and Guidelines, 2019. The Amendment applied a similar zone to the proposed Woodbyne Precinct to ensure consistent built form and design outcomes to allow a relatively moderate increase in density within what is effectively a new and separate residential precinct.
Council added that the NRZ is the "second-most conservative zone (to the LDRZ)" and it limits development to two storeys and nine metres in height and has mandatory minimum garden area which will ensure that the increased development density will respond appropriately to its siting and surrounds.
Mr Negri considered that the NRZ was an appropriate zone for the subject land given:
Mr Negri noted the Day 1 version revised the schedule to reflect the changes to Clause 55 under Amendment VC267 gazetted on 6 March 2025 but preceded the changes to Clause 54 under Amendment VC282 on 11 August 2025 and consequently, the Clause 54 standard references should be revised. He considered the variations appropriate in light of the schedule's proposed neighbourhood character objectives.
Mr Negri concluded that the proposal to rezone the subject land is a logical next step to the identification of the precinct as an investigation area.
Accepting that the Amendment is strategically justified and its intent is to allow higher densities on the subject land, the choice is then which of the three primary residential zones is the most appropriate. The Panel accepts Mr Negri's evidence that the NRZ is the best fit for the site and Council's submission that there is logic in applying a similar zone to that proposed for the adjoining residential areas by recent amendments.
The choice of the NRZ is consistent with what is proposed for the adjoining residential area and consequently, the Panel supports the application of the NRZ42. In response to submissions and the changes made to Planning Schemes by Amendments VC267 and VC282, a number of post exhibition changes have been made to the NRZ42 which are contained in Council's final version (Document 24b). The Panel adopts this version of the NRZ42.
The Panel concludes applying the post-exhibition version of NRZ42 to the subject land is appropriate.
Appendix B of this report.
The issue is whether applying DPO25 to the subject land is appropriate.
Council advised that DPO25 included specific built form and siting design requirements to ensure an appropriate character and level of amenity is provided in and development of the subject land. These requirements include:
Because of recent changes to the Planning Scheme, the built form requirements that Council wishes to achieve will be implemented through an approved Memorandum of Common Provisions. In response to the requirements of Amendment C247morn and DPO25, the proposed permit applications provide for an average lot size of 443 square metres, with diversity of lot sizes ranging from 263 to 887 square metres, which is considered a 'standard' urban residential lot size having regard for current growth area standards and efficient land use.
Mr Negri outlined the DPO25 requirements that would apply to permits include:
He viewed the DPO as an appropriate overlay to be applied to the subject land given:
Mr Negri's view was that the draft development plan provided a framework for the use, built form, connectivity and servicing outcomes to be realised on the subject land and it provided "a degree of certainty as to the broad outcomes anticipated throughout the site." He concluded that the outcome is a residential precinct comprised primarily of standard residential lots and several medium density parcels, generally proximate to public open space.
While he supported the development principles in the development plan, he thought the fourth principle should be replaced with:
Respond to the western interface with a layout and form that complements with the character and landscape of the adjoining established residential neighbourhood.
He added that the eighth principle failed to reflect the concerns with the non-residential interface and should be replaced with the following:
Provide an interface to land in the Industrial 3 Zone to the north to manage potential amenity implications.
Mr Negri also identified an inconsistency between the Watt Road and Racecourse Road buffers as depicted on the Masterplan in the draft development plan and the concept plan contained within the DPO25.
The concept plan shows the 10 metre buffer from the property boundaries of Nos. 1 and 3 Albany Way. The Masterplan depicts it from the edge of the Council Reserve. As a consequence, the buffer on the concept plan extends roughly the whole width of the indicative road while on the Masterplan it only extends approximately halfway through the road.
There were submissions that considered the scale and design of this development could better complement the existing area with improved housing diversity and more generous open spaces.
In response to submissions to the exhibited Amendment and the evidence and submissions made at the Hearings, Council made a number of post exhibition changes to the DPO25 which are contained in Council's final version (Document 24a).
The Panel notes that Mr Negri' changes were incorporated into the final version of the draft Woodbyne development plan. In the Panel's view, both the DPO25 and the draft development plan provide appropriate and accessible open space and allow for a variety of housing types.
In this respect, the Panel accepts the evidence of Mr Negri that the DPO is an appropriate overlay to guide the development of the subject land and the DPO25 is an appropriate response to the local conditions and requirements.
The Panel adopts Council's post-exhibition version of the DPO25.
The Panel considers that the amended draft Woodbyne development plan, (Document 24c) is consistent with the requirements of the DPO25 and notes that it is not proposed to incorporate it into the Planning Scheme. While the Panel considers that the changes made to the document are appropriate and it is consistent with requirements of the final version of the DPO25, the Panel makes no recommendation about the Woodbyne Precinct Mornington Development Plan.
The proposal consists of redeveloping 11 low density residential lots into around 200 conventional and medium density dwellings utilising a new fine grain road network to access Watt Road (see Figure 4).
The proposal's mitigating and ancillary works to support the development consists of:
Overarching this is a draft Development Plan Overlay (DPO25) which provides direction and guidance for development. Key movement and traffic components are:
The ODP is a background document which provides a strategic planning policy framework to guide decisions on land use, development, transport and infrastructure in the Mornington North area.
The key transport and infrastructure objectives are:
4.2 Watt Road/Racecourse Road - preferred intersection treatment
The issue is whether a roundabout should be installed at Watt Road/Racecourse Road intersection.
Mr Gnanakone gave evidence on behalf of the Proponent and Ms Marshall on behalf of Council. Both experts in the joint statement agreed that:
The Proponent supported the traffic expert meeting findings.
Submitters flagged that upgrade works at Watt Road/Racecourse Road intersection and other locations would be required. These are discussed in more detail in Chapter 4.6.
The Panel concurs with the traffic experts, Council and the Proponent that the Watt Road/Racecourse Road roundabout is not required in the foreseeable future and the proposed splitter island to enhance pedestrian and cyclist safety crossing Watt Road is appropriate.
The Panel notes that the initial conservative (more lots and higher traffic generation rates) analysis showed Watt Road/Racecourse Road would require intervention - leading to the roundabout proposal. However, utilising more contemporary data and refined development plans demonstrating a yield of 196 conventional and medium density dwellings showed Watt Road/Racecourse Road current layout (GIVEWAY control) would adequately service development traffic as well as ongoing growth on the surrounding road network.
Nevertheless, the concept plan includes a small splay on the south-east corner of the subject land to allow for a roundabout to be installed at some time in the future, should the need arise.
The Panel agrees that a financial contribution for a future roundabout is not required but acknowledges that Council and the Proponent may explore other funding arrangements for transport infrastructure works outside of the Amendment process.
The Panel concludes that a roundabout is not required in the foreseeable future at Watt Road/Racecourse Road intersection.
The issue is what are the acceptable shared paths widths for Watt Road and Racecourse Road fronting the subject land.
The Panel flagged with the experts that AustRoads[3] permits a 2.0 metre minimum shared path width. Ms Marshall noted that Victorian Planning Authority and other bodies use a minimum of 2.5 metres wide which Mr Gnanakone agreed with, but he was more circumspect noting that this was not a greenfield site, and the Racecourse Road shared path was existing.
Submissions focused on safety concerns for vulnerable road users on the existing and proposed networks, particularly for school children riding to school.
The Panel supports the Proponent's and Council's pragmatic solution to providing shared paths along the subject land's frontage.
The majority of existing footpath along Watt Road frontage will be lost due to the proposed road widening and providing a 3.0 metre shared path with localised narrowing at squeeze points is an appropriate and contemporary solution.
The Panel appreciates the experts' suggestion for a consistent 2.5 metre shared path along both frontages but accepts the Proponent and Council's proposition that the Racecourse Road shared path would need to be removed and replaced with a slightly wider path, resulting in considerable cost and marginal benefit.
The Panel considers the proposed share path arrangement along the site frontages will provide a safe outcome for vulnerable users and is an appropriate solution.
The Panel concludes that the following shared path arrangements for site frontages are acceptable:
4.4 Racecourse Road - location of indented bus bay
The issue is whether the proposed location of indented bus bay on Racecourse Road adjacent to the subject land, is appropriate.
The experts joint meeting did not consider the location of the bus bay.
Ms Marshall noted in her evidence that consideration needs to be given to future pedestrian movements from the bus stop to the Racecourse grounds, although it is not the responsibility of the Amendment.
In light of Ms Marshall's evidence, the Panel explored how and where pedestrians would cross Racecourse Road, and where the companion bus stop on the east side of Racecourse Road would be located, in particular, for nearby residents and workers who may use the future bus service (and associated bus stops) regularly.
Ms Marshall acknowledged the current location would be problematic for pedestrians to cross Racecourse Road in this vicinity due to the back-to-back right turn lanes servicing the Racecourse and Watt Road. Locating the bus stop further north, midway along the subject land would allow for improved pedestrian access utilising the painted median [to accommodate a pedestrian refuge when crossing Racecourse Road] but would be further away from the racecourse entrance requiring more footpath to be constructed. As such, she opined that the bus stop could potentially be located on the south side of Watt Road, which would be also closer to a Racecourse access gate (see Figure 5).
Figure 5 Proposed Racecourse Road indented bus bay location
Median would provide safe crossing point for pedestrians
Source: Val Gnanakone Expert Report Appendix D with Panel annotations
Both experts agreed that the bus stop should be indicative, and the exact location determined in conjunction with the Department of Transport.
The Proponent and Council were generally satisfied with the proposed location of the bus bay and DPO25 which requires a transport and movement plan to be prepared by the Proponent and approved by Council which includes:
Provision of a bus bay on the west side of Racecourse Road adjacent to the development [Panel emphasis]
The Panel understands a more holistic assessment was not undertaken for the bus bay location and future pedestrian accessibility, in particular pedestrians being able to safely cross Racecourse Road as it was assumed that a roundabout would have been installed at Watt Road/Racecourse Road intersection. This would have provided an opportunity for pedestrians to safety cross Racecourse Road. As discussed in Chapter 4.2, a roundabout is no longer required in the foreseeable future.
Consequently, the seventh dot point under the heading 'Transport and movement' plan in the DPO25should be amended to include the following text:
"or nearby, considering how pedestrians will be able to safety cross Racecourse Road. The bus bay location must be to the satisfaction of Department of Transport."
The Panel concludes the DPO25 should be amended to state that the bus bay location is indicative and the exact location is to be determined in conjunction with Department of Transport.
The issue is should the site provide a second road access at Racecourse Road.
Mr Gnanakone's and Ms Marshall's evidence was that:
Submitters sought a secondary vehicular access to the new estate based on concerns regarding traffic flow and safety in an emergency. Council advised there were no issues with the single access arrangement as:
development must not include any new vehicular access points to properties along Racecourse Road south of Carbine Way to protect the safety and efficiency of these roads having regard to the increasing traffic volume
The Panel accepts that a single access arrangement at Watt Road for the development is satisfactory based on expert evidence and support from Council and the Proponent.
While a second vehicle access point may be desirable, the Panel acknowledges:
One submitter explained that he had consulted with his community and was providing a high-level overview of the key issues. The submitter acknowledged that there were a range of community views and was in part, acting as a community spokesperson on this matter.
The key traffic and movement issues are discussed below based on the submitter's and individual submissions received as part of the public consultation process.
The issue is whether the traffic data represent current conditions.
Many submitters flagged that the earlier exhibited material utilised traffic survey data from 2019 and 2022 which some residents believed would not be representative of current conditions.
Mr Gnanakone submitted that his firm's traffic survey data collected in 2025 would be representative of typical operating conditions and as such, suitable for use in analysing the surrounding road network. Ms Marshall agreed.
Council submitted, that extensive new traffic surveys were carried out in 2025 by themselves and the Proponent.
The Panel considers that the recent traffic surveys carried out in 2025 would be representative of current conditions and suitable to be used for analytical purposes.
The Panel concludes the recent traffic surveys would be representative of current conditions.
4.6.3 Capacity of the surrounding road network to absorb traffic
The issue is whether the surrounding road network is capable of accommodating development traffic.
Submitters were concerned that the existing road network was already becoming increasingly congested, and the surrounding road network would be unable to absorb development traffic. They requested the proposal be reduced to around 150 lots to reduce demand on the road network.
Council and the Proponent advised they supported the traffic expert findings that the surrounding road network will continue to perform satisfactorily.
The Panel is satisfied and agrees with Council and the Proponent, that the traffic analysis demonstrates the surrounding road network, with the proposed transport works, will continue to perform satisfactorily and consequently, there is no need to reduce the development density on traffic grounds.
In particular, detailed intersection analysis was undertaken by Mr Gnanakone and reviewed by Ms Marshall and Council which found that the subject site (accommodating around 200 dwellings) would not compromise the operation of the surrounding road network.
The Panel finds the surrounding road network is capable of accommodating development traffic.
4.6.4 Mornington-Tyabb Road and Bungower Road - operational and congestion issues
The issue is whether existing congestion of nearby arterial roads would be further compromised by the development's traffic.
Submitters were concerned that existing congestion on these arterial roads would be further compromised with development traffic.
Council and Mr Gnanakone and Ms Marshall identified both arterial roads intersecting with Racecourse Road are congested at peak times.
Mr Gnanakone submitted that his analysis and findings demonstrated that the developments' overall traffic contribution to these intersections is relatively small and is outside the responsibility for the Proponent to address these operational issues. Ms Marshall agreed.
Council advised that it has advocated for traffic signals to replace the roundabout at Mornington-Tyabb Road to improve capacity and pedestrian access, and noted, that the roundabout at the northern end (Bungower Road) currently operates satisfactorily but will become increasingly congested under the ten-year growth scenario.
Council also recommended that the Day 1 DPO25 be changed to require an assessment of the impact of the proposed use and development on the wider transport network, in particular the major intersections (Mornington-Tyabb Road and Bungower Road at each end of Racecourse Road) and proposed mitigation works to address any unsatisfactory impacts. Council advised it included this to future proof the Amendment in case of any unexpected development scenarios.
The Proponent advised it supported the traffic experts' findings but did not agree to Council's proposed change to DPO25.
The Panel does not believe that nearby arterial road network would be adversely impacted by the proposed development.
The Panel agrees with Council and the Proponent, that it cannot be expected to resolve existing capacity constraints at the nearby major intersections where it is unlikely to materially exacerbate these issues.
The Panel appreciates Council's position in endeavouring to 'future proof' against a major increase in development yield but the suggested DPO25 clause as written, 'address any unsatisfactory impacts' is wide ranging, creates potential uncertainty and does not provide sufficient guidance to a decision maker.
Mr Gnanakone and Ms Marshall both identified that there are no traffic engineering grounds as to why the proposed development should not proceed - this was also common ground with both parties. As such, the Panel considers a pragmatic trigger for reassessment of impacts on the broader network would be that if the site accommodates 10 per cent more dwellings [that is 216 dwellings]. This provides clarity and certainty as to when a further assessment would be warranted but provides flexibility if there are minor design changes which occur during detail design.
The last dot point under the heading Transport and movement plan in the DPO25 should be amended to replace the text after the word mitigation with the following:
", if any, to address any unsatisfactory impacts if the site accommodates more than 216 dwellings."
4.6.5 Pedestrian and cyclists - connectivity and safety
The issue is whether the proposed pedestrian and cycling facilities are satisfactory.
Council submitted that DPO25 requires a transport and movement plan to be prepared by the Proponent and approved by Council and includes several requirements around:
In relation to the continued use of the pedestrian link between Albany Way and Katherine Court Council advised that:
The Proponent supported Mr Gnanakone's evidence and that the proposed works appropriately respond to pedestrian and cyclists' needs.
The Panel is satisfied that the proposed suite of pedestrian and cycling infrastructure is satisfactory.
The Panel considers that overall, there is safety, amenity, permeability and access improvements with the proposed suite of pedestrian and cycling facilities, in particular the additional linkages from the estate onto Racecourse Road shared path network and into the industrial estate to the north. The Panel agrees with Council and Proponent that the proposed suite of works provide an appropriate response to the need for safe pedestrian and cyclist's accessways.
In relation to the existing Albany Way/Katherine Court pedestrian link, the Panel agrees with the traffic experts and Council's findings.
The Panel concludes that the proposed pedestrian and cycling facilities are satisfactory.
The issue is whether the development will provide sufficient car parking.
Submitters were concerned that the development may provide insufficient car parking leading to adverse impacts on on-street carparking within the local area including the neighbouring Watt Road industrial precinct.
The experts identified that the development's proposed road network would enable appropriate on-street parking to be provided and would be resolved during detail design.
Council added that the draft permits include a condition requiring the provision of on street parking for all lots at a rate of one car space per two dwellings and concurs with the experts that the car parking arrangements are appropriate.
The Panel is satisfied that the development's car parking supply is appropriate and will ultimately be resolved during detail design. More generally, on-street car parking management is the responsibility of Council and is outside the scope of this Amendment.
The Panel is satisfied that the development will provide an appropriate level of car parking.
Localised traffic congestion associated with Resource Recovery Centre and Mornington Racecourse
The Panel accepts that periodic and localised congestion occurs on the nearby road network during Mornington Racecourse events and Resource Recovery Centre free voucher weekend.
The Panel considers that these are discrete localised events, and potentially appropriate traffic management plans could and would be implemented as the need arises and are separate to the Amendment process.
The Panel acknowledges submitters concerns regarding the lack of public transport in the immediate area of the proposed subdivision, with the nearest bus stop approximately 450 metres south of the site.
Council continues to advocate for improved public transport and notes that the Department of Transport has consulted on realigning the 784 bus route to run along Racecourse Road, past the site. The Panel considers this would be beneficial for the proposed subdivision and more generally the local community, however, at this stage there is no timing or commitment for the bus route enhancements [the Department advised there was significant community support however, any new bus services will be considered along with other public transport planning priorities and subject of future funding][5].
Nevertheless, some indented bus bays have already been installed along Racecourse Road which will be complemented by the additional bus stop as part of this Amendment.
The Amendment seeks a greater density of residential uses adjacent to existing noise sources emanating from:
The primary acoustic consideration relates to reverse amenity effects and how the proposed subdivision can provide appropriate amenity for future residents.
Acoustic engineers have carried out detailed investigations, identifying that a range of measures would be available to adequately address the noise issues impacting the site and prepared suggested conditions for the DPO25.
The draft DPO25 4.0 Requirements - Acoustic attenuation measures provide a framework and process to address the noise issues impacting the site.
The issue is whether the potential for risk of harm from noise associated with industrial uses, traffic and Mornington Racecourse music events can be adequately managed for future residents.
Mr Evans gave evidence on behalf of Council and Mr Leo on behalf of the Proponent. Both experts agreed that:
In relation to submitters concerns regarding existing noise levels, Mr Leo explained:
Mornington Racecourse, suggested that all dwellings across the precinct should have acoustic protection, not just those in the south-east corner. Mr Leo advised:
The Proponent and Council advised they supported the findings of the acoustic experts.
The Proponent supported permit conditions (as shown in Day 1 version) which require the landowner to enter into a Section 173 agreement to give effect to the DPO25 noise attenuation requirements.
Mornington Racecourse advised it did not object to the Amendment but sought appropriate consideration and protection of land uses at the racecourse into the future. In particular, the proposed acoustic attenuation requirements should be extended to all precinct properties to ensure outdoor concert use is protected into the future. It considered responsibility for 'sound proofing' new dwellings rests with the developer rather than Mornington Racecourse in accordance with the agent of change principle.
Other submitters focused on general increase in noise and existing noise from traffic, industry and Mornington Racecourse.
The proposal allows a greater density of sensitive residential development into an area which is exposed to noise sources from three sides. The fundamental issue is; can noise associated with industrial uses, traffic and Mornington Racecourse music events be adequately managed for future residents?
The Panel accepts the expert findings that there is a raft of measures that can be implemented to protect residents and mitigate noise to an acceptable level in accordance with applicable acoustic criteria. The key elements of the experts' findings have been incorporated into DPO25 and to provide greater certainty, planning permits require the land owner to enter section 173 agreements to give effect to the noise attenuation measures.
The Panel acknowledges that there are a range of existing noise issues in the local area. It is important to note that the test is not that new residents do not hear noise, rather audible noise from particular sources does not exceed their legislated obligations. In this regard, industry and the Mornington Racecourse should not be generating noise beyond their permitted levels - this would be a matter of enforcement and not that the proposed development should be providing a greater level of noise mitigating measures.
The Panel Concludes that the potential for risk of harm from noise associated with industrial uses, traffic and Mornington Racecourse music events can be adequately managed for future residents.
The issue is whether the issues raised in submissions have been addressed by the Amendment documents.
Council noted that, 152 submissions were received by the close of exhibition. Most submissions objected to the proposal based on increased density and impacts on the local road network. Another key issue identified was the potential reverse amenity acoustic impacts with respect to the non-residential uses to the north and south of the subject land and the racecourse to the east.
Council added that issues identified in submissions from South East Water and the Department of Energy, Environment and Climate Action were addressed by revisions to the planning permit conditions.
Council provided the following summary of the submissions to the Amendment grouped by themes and in its Part B submission (Document 21) Council provided a detailed response to each theme.
Concerns about the new Neighbourhood Residential Zone and increased density
Concerns about the design of the precinct development plan
Council's Part B submission provided a detailed response to submissions based on the same themes.
The Proponent submitted that the concerns raised in submissions had effectively been addressed by the provisions and requirements of the NRZ42 and the DPO25 which were reflected in both planning permits.
The DPO25, draft development plan and planning permit applications demonstrate an urban design outcome for the Woodbyne Precinct that is safe, healthy, functional, connected, attractive, liveable and sustainable (Clause 15.01-1S Urban Design, Clause 15.01-2S Building Design, Clause 15.01-3S Subdivision Design, Clause 15.01-4S Healthy Neighbourhoods).
The development plan demonstrates a mixture of conventional size residential lots and medium density superlots which will provide for a range of dwelling types and sizes and therefore dwelling diversity. This is reflected in the planning permit applications, which depict lots sizes on the conventional lots ranging from 263 square metres to 887square metres (Clause 16 Housing).
In summary, Mr Negri's evidence was that the DPO25, draft development plan and planning permit effectively addressed the issues raised in submissions.
One submitter considered the development of the subject land should provide for around 150 new dwellings rather than the 250 proposed. He identified the following issues with the Amendment:
Most of the issues raised in submissions which effectively focus on the proposed increase in residential density and the traffic implications of more dwellings on the subject land have been discussed in detail in the preceding chapters of this report.
The Panel acknowledges that, in response to submissions, Council made changes to the exhibited versions of the Amendment documents and further changes in response to evidence and submissions at the Hearing. The Panel supports these changes and agrees with Mr Negri's evidence that the combination of the NRZ42, DPO25, draft development plan and planning permit effectively deal with the relevant issues raised in submissions. The Panel also accepts Council's detailed response to submissions. In addition, the following themes have been dealt with in previous sections of this Report:
In terms of the administrative and other matters raised, the Panel notes that the exhibition period was nine weeks, more than double minimum one calendar month required under the PE Act. The cost of infrastructure to Council, the rates that it will receive and the impact on property values, if any, are not matters the Panel can consider as part of this Amendment.
The Panel concludes that the issues raised in submissions have been addressed by the final versions of the Amendment documents.
Clause 71.02-3 of the Planning Scheme requires a Responsible Authority considering a permit application to take an integrated approach, and to balance competing objectives in favour of net community benefit and sustainable development.
Because a permit can be granted does not imply that a permit should or will be granted. The Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.
Clause 65.01 requires the Responsible Authority to consider:
The decision guidelines of the NRZ42 require an application for a permit to consider building siting setbacks and design and vegetation and landscaping to maintain and strengthen the formal garden setting of dwellings. These matters are also outlined in the objectives of the DPO25 in addition to minimising potential conflicts between residential and non-residential uses.
Mr Negri's evidence statement provided a helpful summary of the permit triggers, application requirements and key considerations for the two subdivisions under the Planning Scheme. Council's Part A submission provided a chronology of the Permit Applications. The Panel has been assisted by these in its deliberations.
The issues and impacts required to be considered in the decision guidelines have been discussed at length in the issue-specific chapters of this report. In essence the Panel considers:
On balance, the Panel considers that the permits should be granted.
There is strong strategic support for the Amendment to facilitate the development of the subject land for increased density residential dwellings. The DPO25 sets the framework for the future development of the site and the Woodbyne Precinct development plan is an appropriate response to the DPO25. In turn, the two planning permits are consistent with the requirements of the development plan.
The DPO25, draft development plan and the two planning permit applications provide a net community benefit with an urban design outcome for the Woodbyne Precinct that is safe, healthy, functional, connected, attractive, liveable and sustainable. In addition, both permits include a provision for a contribution to affordable housing and will provide for a variety of housing.
The Panel notes that some of the wording of the conditions contained in the two permits is inconsistent with the Practitioner's Guide to Victoria's Planning Schemes and they should be reviewed prior to being issued.
Issue planning permit P23/2400 for the subdivision of the land into 57 lots, removal of reserve, creation of reserves, removal of vegetation and associated works subject to the permit conditions contained in Appendix D.
Issue planning permit P23/2402 for the subdivision of the land into 59 lots, creation of reserves, removal of vegetation and associated works subject to the permit conditions contained in Appendix E.
Prior to the issue of the permits, review the wording of the conditions to ensure consistency with Practitioner's Guide to Victoria's Planning Schemes.
Letter to Panel Confirming expert witnesses and providing background reports:
a) Town Planning Report-A Different City Revision C June 2023
b) Acoustic-Clarity Acoustic 12September 2022
c) Acoustic-Clarity Acoustic 8 February 2023
d) Acoustic-Renzo Tonin Associates 31 March 2023
e) Buffers-DRC Environmental 23 November 2021
f) Civil Engineering-Charlton Degg Development Plan Masterplan 14 June 2023
g) Buffer Constraint Assessment-PEC-Final Report June 2022
h) Ecology-Ecology Heritage Partners 23 November 2022
j) Landscape masterplan-Plan E Development Plan June 2023
k) Stormwater Strategy-Incitis Development Plan 14 June 2023
m) Dust-AOC Specialist February 2023
n) Site contamination assessment-AGS 2 February-2022 revised January 2023
o) Traffic Impact Assessment-One Mile Grid Development Plan 14 June 2023
p) Ecological Assessment-Ecology & Heritage Partners updated 16 June 2025
q) Site contamination assessment-AGS 2 February 2022 revised 3 March 2025
r) One Mile Grid Development Plan Report 30 May 2025
s) Clean Development Plan - June 2025
t) Development Plan showing changes tracked from the November 2024 version to the June 2025 version
a) Development Plan Overlay Schedule 25;
b) Neighbourhood Residential Zone Schedule 42;
c) Woodbyne Precinct Development Plan;
d) Instruction Sheet;
e) Planning Permit P23/2400; and
f) Planning Permit P23/2402
Statement of agreed issues between Council and the Proponent
Request for an extension of time to submit the Part B submission
Request for an extension of time to submit the Part C submission
a) Development Plan Overlay Schedule 25
b) Neighbourhood Residential Zone Schedule 42
c) Woodbyne Precinct Development Plan
d) Instruction Sheet
e) Planning Permit P23/2400
f) Planning Permit P23/2402.
Appendix B Panel recommended version of the Neighbourhood Residential Zone Schedule 42
SCHEDULE 42 TO CLAUSE 32.09 NEIGHBOURHOOD RESIDENTIAL ZONE
To ensure new development respects the predominant built form on residential land to the west of the precinct with simple building forms and low-pitched roofs with prominent eaves.
To ensure new development respects and responds to the valued character of the Mornington North area through appropriate building siting and streetscape rhythm that provides space for native vegetation and contribute to the sense of openness.
To encourage the formal garden setting of dwellings, characterised by large native canopy trees, bushes, shrubs and garden beds.
To ensure new development does not dominate the streetscape and minimises the prominence of car parking structures and access.
To retain the spaciousness of the streetscape, characterised by absent, or low and permeable, front fences with views to front garden areas.
A new building not on or within 200 mm of a boundary should be set back at least:
1 metre from a side boundary, plus 0.3 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres.
A dwelling should have private open space consisting of an area of 80 square metres or 20 per cent of the area of the lot, whichever is the lesser, but not less than 40 square metres. At least one part of the private open space should consist of secluded private open space with a minimum area of 40 square metres and a minimum dimension of 5 metres at the side or rear of the dwelling with convenient access from a living room.None Specified
A dwelling or residential building should have private open space consisting of an area of 40 square metres, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 25 square metres, a minimum dimension of 5 metres and convenient access from a living room.None Specified
Maximum building height requirement for a dwelling or residential building
The following application requirements apply to an application for a permit under Clause 32.09, in addition to those specified in Clause 32.09 and elsewhere in the scheme and must accompany an application, as appropriate, to the satisfaction of the responsible authority:
If the land is in a bushfire prone area, landscaping should be of a low-threat bushfire risk as defined in c2.2.3.2 of Australian Standard AS 3959-2018 Construction of buildings in bushfire-prone areas.
The following decision guidelines apply to an application for a permit under Clause 32.09, in addition to those specified in Clause 32.09 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:
Appendix C Panel recommended version of Development Plan Overlay Schedule 25
SCHEDULE 25 TO CLAUSE 43**.04 DEVELOPMEMT PLAN OVERLAY**
To provide new and diverse housing for the Mornington township that complements the character and diversity of housing on residential land to the west of the Mornington North precinct.
To ensure that the built form, site coverage, setbacks and landscaping of new residential development respects and responds to the valued character of the Mornington North area.
To minimise potential conflicts between residential uses and nearby non-residential uses, including industrially zoned land to the north and south of the precinct, and the Mornington Racecourse to the east and public land uses to the south including a municipal animal pound/shelter and waste and resource recovery centre.
To respond to and enhance the landscaped character for the precinct, including the provision of landscaped buffers along Watt Road and Racecourse Road.
A permit may be granted for the following before a development plan has been prepared to the satisfaction of the Responsible Authority
Before granting a permit the Responsible Authority must be satisfied that the permit will not prejudice the future use and development of the land in an integrated and orderly manner.
Except for a permit granted before a development plan has been approved in accordance with Clause 2.0 of this Schedule, the following conditions and/or requirements apply to permits:
The land owner/s must pay the costs of the preparation, review, execution, and registration of the Memorandum of Common Provisions on each title.
The land owner/s must pay the reasonable costs of the preparation, execution, and registration of the Section 173 Agreements and Memorandum of Common Provisions on each title.Agreement.
The land owner/s must pay the reasonable costs of the preparation, review, execution, and registration of the Section 173 Agreement.
The Development Plan must be generally in accordance with the Development Concept Plan in this Schedule.
A development plan must include the following requirements to the satisfaction of the Responsible Authority.
A site context and survey plan noting the location of the site and incorporating:
An indicative block grid layout for all land covered by the schedule showing:
An open space plan showing public reserves and landscaped linkages including:
Infrastructure and stormwater management strategy
A Stormwater Management Strategy to the satisfaction of Melbourne Water and the Responsible Authority to include:
An acoustic report prepared by a suitably qualified acoustic engineer must be submitted to the satisfaction of the Responsible Authority and include an assessment of existing noise sources that may impact the amenity of future dwellings located in the precinct to achieve noise levels to meet the relevant EPA standards. or other habitable buildings located in the precinct. The acoustic report is to identify any acoustic mitigation measures required to ensure noise levels inside any future dwellings or other habitable buildings located in the precinct will be acceptable and comply with noise limits established under the relevant requirements and standards, including but not limited to the Environment Protection Act 2017 (Vic), Environment Protection Regulations 2021 (Vic), Environmental Reference Standard and Noise Protocol (EPA Publication 1826.5), as applicable.
An For the purposes of assessing music noise, the assessment may be conducted on the basis of internal noise levels.
The existing noise sources to be addressed in the acoustic report must prescribe any form of acoustic attenuation measure required to include:
Lots that directly abut industry to the north; or front, Racecourse Road to the east; or front and Watt Road to the south, are required to:
A Sustainable Subdivision Management Plan, using the CASBE template or similar assessment tool, outlining proposed measures including to:
An Ecological Assessment and Native Vegetation Management Plan to include:
An Arboricultural Assessment of all existing vegetation prepared by a suitably qualified person(s) that identifies any significant trees or vegetation on the land, any existing street trees, roadside vegetation and grassed road verges.
A Landscape Concept Plan for public open space areas, streets and tree reserves to include:
Confirmation that the landowner or developer will carry out the development, maintenance, retirement, reinstatement and all associated costs of any temporary drainage and stormwater solutions as part of the infrastructure staging report.
Appendix D Panel recommended version of the Planning permit P23/2400
PLANNING PERMIT GRANTED UNDER SECTION 96I OF THE PLANNING AND ENVIRONMENT ACT 1987
4, 6, 8 and 10 Woodbyne Crescent, Mornington VIC 3931
Lot 2 PS 346179 Vol 10330 Fol 364
Lot 3 PS 346179 Vol 10330 Fol 365
Lot 4 PS 346179 Vol 10330 Fol 366
Lot 5 PS 346179 Vol 10330 Fol 367
Reserve No. 1 PS 346179
THE SUBDIVISION OF THE LAND INTO FIFTY-SEVEN (57) LOTS, REMOVAL OF RESERVE, CREATION OF RESERVES, REMOVAL OF VEGETATION AND ASSOCIATED WORKS IN ACCORDANCE WITH THE ENDORSED PLANS
The land owner/s must pay the reasonable costs of the preparation, review, execution, and registration of the Memorandum of Common Provisions on each title.
A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Energy, Environment and Climate Action.
Section 173 Agreement - Temporary Drainage Reserve
The costs in preparation and registration of such agreement are to be met by the subdivider and must be paid prior to the registration of the agreement.
The above condition will be deemed to be satisfied and the Responsible Authority will waive the need for the subdivider to enter into an agreement, if a drainage detention basin and permanent wetland has been completed in the north-western corner of No. 5 Woodbyne Crescent in accordance with engineering plans approved by the Responsible Authority as part of another planning permit.
Section 173 Agreement - DPO25
The land owner/s must pay the reasonable costs of the preparation, execution, and registration of the Section 173 Agreement/s.
The land owner/s must pay the reasonable costs of the preparation, review, execution, and registration of the Section 173 Agreement.
Construct all footpaths, street and park furniture, facilities, lighting and related infrastructure.
In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.
Appendix E Panel recommended version of the Planning permit P23/2402
PLANNING PERMIT GRANTED UNDER SECTION 96I OF THE PLANNING AND ENVIRONMENT ACT 1987
Lot 1 PS 346179 Vol 10330 Fol 363
Lot 7 PS 346179 Vol 10330 Fol 369
Lot 9 PS 346179 Vol 10330 Fol 371
Lot 10 PS 346179 Vol 10330 Fol 372
THE SUBDIVISION OF THE LAND INTO FIFTY-NINE (59) LOTS, CREATION OF RESERVES, REMOVAL OF VEGETATION AND ASSOCIATED WORKS IN ACCORDANCE WITH THE ENDORSED PLANS
The land owner/s must pay the reasonable costs of the preparation, review**,** execution, and registration of the Memorandum of Common Provisions on each title.
A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Energy, Environment and Climate Action.
The land owner/s must pay the reasonable costs of the preparation, execution, and registration of the Section 173 Agreement/s.
The land owner/s must pay the reasonable costs of the preparation, review, execution, and registration of the Section 173 Agreement.
Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
4446The applicant shall establish easements on the subdivision, for all existing Distributor electric lines where easements have not been otherwise provided on the land and for any new power lines to service the lots or adjust the positioning of existing easements.
In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.
[1] Revised plans show a total of 196 dwellings comprising a mix of houses and townhouses
[2] Intersection degree of saturation (DoS) 0.80, with a desirable maximum DoS less than 0.85 and an average delay 35 to 40 seconds
[4] Panel recommendation - see Chapter 4.3