1. By consent:
   1. the revised development plan marked as Exhibit C1 replaces the original proposed development plan as the subject matter of review under Section 149(1)(a) of the Planning and Environment Act 1987 (the PE Act), and,
   2. the permit application giving rise to the application to review the failure of the Responsibility Authority to grant a permit within the prescribed time is amended by consent to substitute the modified proposed plan of subdivision marked as Exhibit C2 at the hearing for the original proposed plan of subdivision.
2. In relation to application for review P3254/2004 under Section 149 of the PE Act, this application is granted and the proposed development plan tendered as Exhibit C1 at the hearing of this application is approved and determined to be to the satisfaction of the Responsible Authority.

1. Application for review P253/2004 under Section 79 of the said Act is granted. A permit is granted for the subdivision of the land in accordance with the endorsed plans hereafter provided for and subject to the following conditions which are the conditions in relation to the permit granted.
   1. Before the plan of subdivision is certified or any works commence in relation thereto, a proposed plan of subdivision must be submitted to and approved by the Responsible Authority. When approved such plans will be endorsed as evidence of such approval and thereafter will be the endorsed plans in relation to this permit. Such plans are to be in general accord with the plans marked as Exhibit C2 and tendered at the hearing of the relevant application for review before the Victorian Civil Administrative Tribunal but modified, as necessary, to show:

1. staging of the subdivision if required and if it is proposed to develop the subdivision in stages; 2. a notation indicating that no existing dwelling is to be relocated to the subject land;

1. indication of requirement whereby each dwelling must be provided with a water tank that is plumbed to collect roof stormwater runoff having a capacity of not less than 4500 litres;

1. road reservations must be extended to a width of 16 metres to connect to adjoining lots to the north and west; 2. street names chosen in accordance with the Macedon Ranges Shire Council policy in relation to the naming of streets; 3. a set of engineering drawings that are prepared by a civil engineer in accordance with Council's policy must be submitted to and approved by the responsible authority. Apart from all the requirements set down in Clause 56 of the Macedon Ranges Planning Scheme, these plans must reflect the changes required by condition 1(a) of this permit and show: * (i) kerb and channel for all roads, * (ii) a minimum 6m width for all trafficable roads, * (iii) all services provided underground, * (iv) how stormwater outfall will be restricted to pre-development flows, * (v) street lights and a minimum of one footpath for all road reserves including Brooking Road reserve, and, * (vi) shared driveways for each of the lots fronting Brooking Road; and 4. a landscape and vegetation management plan that provides for: * (i) substantial indigenous plantings in the reserves, * (ii) street trees on both sides of each road reserve at a rate of one tree per lot fronting each road reserve, * (iii) a species planting schedule that is cross-referenced to each planting and shows the common and botanical name, mature height and width, size at planting and quantity of each species, and, * (iv) a vegetation management regime that demonstrates planting techniques and how the plantings will be maintained for a period of two years after completion.

1. Prior to the issue of statement of compliance, the following must occur to the satisfaction of the responsible authority:
   1. all civil engineering works provided for through the plan submitted to show compliance with condition 1(f) of this permit must be completed;
   2. all plantings shown on the plan endorsed under condition 1(g) of this permit must be planted in accordance with the management regime.
2. The subdivision shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
3. The owner must restrict sediment discharges from any construction sites within the property in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) AND Environmental Guidelines for Major Construction Sites (EPA 1995).

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to Powercor Australia Ltd. in accordance with Section 8 of that Act
2. The applicant must:

1. ensure that all civil engineering works provided for through the plan submitted to show compliance with condition 1(f) of this permit must be completed; 2. to the satisfaction of Powercor Australia Ltd rearrange existing private electric lines that cross boundaries of the proposed lots to supply existing installations and such lines must be constructed with underground cables;

1. set aside on the plan of subdivision for the use of Powercor Australia Ltd. reserves satisfactory to Powercor Australia Ltd where any electric substation (other than a pole mounted type) is required to service the subdivision;

1. provide easements satisfactory to Powercor Australia Ltd., where easements have not been otherwise provided, for all existing Powercor Australia Ltd. electric lines on the land and for any new powerlines required to service the lots and adjoining land, save for lines located, or to be located, on public roads set out on the plan and these easements must be for the purpose of "Power Lines" in favour of Powercor Australia Ltd.; 2. obtain the approval of Powercor Australia Ltd. to lot boundaries within any area affected by an easement for powerlines and for construction of any works in such an area; and 3. provide for Powercor Australia Ltd., a copy of the version of the plan of subdivision submitted for certification which shows any amendments which have been required;

1. Prior to a statement of compliance being issued by the responsible authority, the owner must provide all works for provision of Telecommunication services to each lot created in the subdivision to the satisfaction of Telstra;
2. Where any extensions or alterations to Telstra's network or plant are necessitated by the proposed subdivision, the cost of such works must be met by the owner prior to statement of compliance being issued.
3. The plan submitted for certification must show details of easements or sites which may be required to by Telstra.

1. there must be no obstructions within one metre of the edge of the formed width of roads at any time, and there must be four metres height clearance above all roads to allow for fire vehicle access; 2. the minimum width of all trafficable roads must be 6 metres;

1. Adequate provision for turning of fire brigade vehicles must be provided in dead end roads by: * (i) the court bowls having a minimum trafficable area of 10 metres radius, * (ii) a "T" head or "Y" head provided with a minimum formed road surface of each leg being at least 8 metres length measured from the centre point of the head and 4 metres trafficable width, and, * (iii) provision of alternative access approved by the Country Fire Authority,

1. the amount and location of parking facilities should not impede access of emergency vehicles with off-street parking to be provided wherever possible;

1. road structures are to have a minimum load limit of 15 tonnes; and
2. curves are to have a minimum inner radius of 10 metres.

1. Water supply:
   1. fire hydrants must be supplied to the satisfaction of the Country Fire Authority. The hydrants must be located within 120 metres of the every building envelope with the spacing between hydrants being a maximum of 200 metres; and
   2. fire hydrants must be clearly identified in accordance with the Fire Service Guideline - Identification of Street Hydrants for Fire Fighting Purposes;
2. Protective Features: areas of public open space must be managed in a minimum fuel condition during the fire danger period.

1. Payment of a fair and reasonable monetary contribution, either in accordance with any schedule of charges adopted by Western Water, or otherwise determined by Western Water, towards the area's water supply headworks or trunk main system for water supply for the development is to be made.
2. Payment of a fair and reasonable monetary contribution, either in accordance with any schedule of charges adopted by Western Water, or otherwise determined by Western Water, towards the area's outfall sewers and disposal system for sewerage services to the development is to be made.
3. The owner or applicant must fund a feasibility study for the proposed water supply and sewerage services needed to serve the development.
4. Provision is to be made of reticulated water mains and associated construction works to front each allotment within the development, at the developer's expense, in accordance with standards of construction adopted by and to the satisfaction of Western Water.
5. Provision of separate water services to each allotment within the development is to be made without cost to Western Water where the existing water main is on the opposite side of the road pavement to the land.
6. Any existing water service which crosses any of the proposed allotment boundaries within the proposed development must be disconnected and relocated at the developer's expense, to be wholly within one allotment only and to the satisfaction of Western Water.
7. Provision of reticulated sewerage and associated construction works to each allotment within the development, at the developer's expense is to be provided in accordance with standards of construction adopted by Western Water and to its satisfaction.
8. Easements in favour of the Western Region Water Authority are to be provided over all existing and proposed sewer mains located within private property. Easements must be 3 metres wide for combined sewer and drainage easements and 2.5 metres wide for a dedicated sewerage easement.
9. Pursuant to Section 36 of the Subdivision Act, Western Water considers that for the economical and efficient subdivision and servicing of the land covered by the Application for Permit it requires the owner of the land to acquire an easement over other land in the vicinity, namely, any land not owned by the developer through which a sewerage extension servicing the development is to be located. The easements created are to be in favour of Western Region Water Authority.
10. A digitized plan of subdivision and ancillary requirements are to be prepared in accordance with Western Water's drafting standards and practices.
11. The owner of the land under this permit must enter into an Agreement with Western Water relating to the design and construction of any sewerage or water works required. The form of such Agreement must be to the satisfaction of Western Water. Note: A copy of the format of the Agreement will be provided on request and owner/applicant must make a written request to Western Water for the terms and conditions of the Agreement.
12. The plan of subdivision and any subsequent amendments lodged for certification are to be referred to Western Water pursuant to Section 8(1) of the Subdivision Act 1988.
13. Subject to condition 26 hereunder all contractors engaged on construction of Subdivision Infrastructure must obtain a Water Carters Permit from Western Water and comply with that permit at all times and the holder of such Water Carter Permit must:

1. own a metered hydrant approved by Western Water Meter and pay for all water taken; 2. display a Western Water Permit Number Sticker on the tanker;

1. only take water from nominated hydrants and standpipes;

1. only use water for the purpose approved in the Water Carter's Permit; 2. avoid wastage of water on site; and 3. comply with any water restrictions imposed by Western Water at the time water is used. Note: For the purpose of this condition, Subdivision Infrastructure includes new, and alterations to, existing roads and drains, water mains, sewer mains, power supply, telephone, gas and any other service infrastructure required by this permit and dust suppression during construction of the same.
2. Notwithstanding condition 25, a Water Carter's Permit is not required if the permit holder and contractors engaged by the permit holder can demonstrate to the satisfaction of Western Water that water is not required from Western Water's town water supply systems to construct Subdivision Infrastructure defined above.
3. Pursuant to Section 36 of the Subdivision Act, Western Water considers that for the economical and efficient subdivision and servicing of the land covered by Application for Permit it requires the owner of the land to acquire an easement over other land in the vicinity, namely, any land not owned by the developer through which a water main extension servicing the development is to be located. The easement must be 20 metres wide and include right of carriageway and be in favour of Western Region Water Authority.
4. This permit shall expire if:
   1. The plan of subdivision is not certified within 2 years of the date of this permit; or
   2. The registration of the subdivision is not completed within 5 years of the date of this permit.

The Responsible Authority may extend the time if a request is made in writing before the permit expires or within three months afterwards.

1. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order C above.

Ms Maria Marshall, solicitor, of the firm of Maddocks Solicitors, appeared for the responsible authority. She presented oral and written submissions supported with a book of documents. She also called Mr Robert Milner, Town Planner, as an expert witness. He gave oral evidence and adopted a written report.

Mr. P Connor, barrister, appeared on the instructions of B T E Flynn Murone and Co, solicitors, for the applicant. He presented written and oral submissions and called Mr David Charles Crowden, Town Planner, as an expert witness. He gave oral evidence in the course of which he adopted a written report.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Application under s.149 of the PE Act for review of the failure or refusal of the Responsible Authority to be satisfied with a proposed development plan.

Approval of a development plan under Clause 43.04-1 of the Planning Scheme.

Residential 1 Zone and subject to a development plan overlay (Schedule 1) under the Macedon Ranges Planning Scheme.

1. The applicants seek an integrated subdivision of their land into 101 lots. For this purpose they need a planning permit. The original application for such permission was made in 2003. The Responsible Authority failed to grant a permit within the prescribed time. The applicants applied to this Tribunal for a review of that failure.
2. However, there is a prior question. Before such a subdivision can be granted the requirements of a Development Plan Overlay applicable to the land must be satisfied. The overlay requires that there be a development plan to the satisfaction of the responsible authority. The applicants prepared and submitted a proposed development plan to the responsible authority seeking a decision by the Authority that it is satisfied with the plan. The responsible authority failed to make a decision in relation to the development plan. The applicants then applied to the Tribunal under s.149(1)(a) of the Planning and Environment Act 1987 (the PE Act) for a review of the failure of the responsible authority to decide whether or not it was satisfied with the proposed development plan.
3. In 2004 those two proceedings were heard by the Tribunal. Nevertheless, the proceedings have remained alive and have been reheard by me. There is quite a lengthy history that now attaches to these matters. In the course of that history there have been a number of changes. One of the original applicants has dropped out of these proceedings, the proposed development plan and the proposed plan of subdivision have been modified and there have been alterations to the relevant provisions in the planning scheme. Furthermore, there have been some changes in relation to nearby land where permits have been granted and acted upon. Of course I need to consider the current proposed plans in relation to the planning scheme as it now stands.

1. The land these proceedings relate to is known as 85 and 95 Brooking Road, Gisborne. The proceedings in their original form related to those properties and an additional piece of land known as 59 Brooking Road. At the time that property was included in the proceedings it was owned by Marilyn Lynda O'Sullivan.
2. No 59, like the other two properties that remain in the proceedings, has a frontage to the north side of Brooking Road a short distance west of its intersection with Brady Road. They are located between Brady Road to their west and Calder Freeway to the east. A short distance to the east of these properties, and between them and the Calder Freeway there is an intermittent creek running down a creek bed which runs approximately from north to south and approximately parallel to the eastern side boundary of the review site.
3. The three pieces of land are side by side. No 59 has now made what might be referred to as a separate peace with the Responsible Authority. It has received planning permission for its subdivision into 26 lots. It is no longer part of the present proceedings.
4. The two remaining lots are now proposed to be subdivided into 101 residential allotments in accordance with an integrated plan of subdivision.
5. The present both pieces of land are open land suitable for grazing.

1. The subject site is comprised of two adjoining and approximately equal rectangles of land on the north side of Brooking Road. Together they have a frontage to that road of 402.04 metres and a depth of approximately 503 metres. The total area is 20.214 hectares.
2. The parcel of land is comprised of 85 and 95 Brooking Road. 85 Brooking Road is the land in Crown Allotment 22, Section 0 in the Parish of Gisborne on Title Plan 14288.
3. 95 Brooking Road is constituted by two lots which together form a rectangle approximately equal to 85 Brooking Road. They are lots 1 and 2 on plan of subdivision 340570J.
4. The site is generally flat with a slight fall. There is one house with outbuildings on 85 Brooking Road and a dwelling with a dependent person's unit and outbuildings on 95. There are several dams. It is essentially cleared grazing land but there are two trees on 85 Brooking Road which it is intended to retain.
5. Land to the west and north has been or is proposed to be subdivided for residential purposes.

1. The Responsible Authority has provided some statistics in relation to the proposed development plan and subdivision. The 101 lots would have an average size of 1600 square metres, a minimum size of 592 square metres and a maximum size of 4800 square metres. 11% would be under 999 square metres, 46% would be between 1000 square metres and 1499 square metres, 19% would be between 1500 square metres and 1999 square metres, 11% would be between 2000 and 2499 square metres, 3% would be between 2500 and 2999 square metres and 10% would be over 3000 square metres. There would be 2200 square metres of public open space and 3.78 hectares of road reserve.
2. The proposed larger lots are to the south along Brooking Road (except for the largest lot containing an existing dwelling) with the smallest ones generally located to the north east close to the public open space.
3. The internal road network would include one north south road through the site, three east west roads and three court bowls. The through roads are proposed to connect to abutting approved and proposed developments. Two native trees are to be retained.

1. The review site is located in the Residential 1 Zone that extends south from the township of Gisborne. According to the current zoning plan, Brooking Road is to be the southern boundary of the urban area of Gisborne. On the southern side of that road the land is in a Rural Living Zone. Most of the land on the north side, including the review site, is Residential 1 Zone, but there is a pocket of Low Density Residential Zone land on the north side of Brooking Road immediately to the east of Brady Road.
2. Residential 1 Zone is an urban residential zoning where the primary specific purpose is to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. The zone provisions are found in Clause 32.01 of the planning scheme. Clause 32.01-2 provides that a permit is required to subdivide land. The clause specifies that an application to subdivide land is to meet the requirements of Clause 56 of the planning scheme and should meet the standards except (in this case) for the objectives and standards in Clause 56.02-5. Clause 56.02-5 relates to neighbourhood character objectives. Decision guidelines specified in the clause refer to the general provisions of the planning scheme and to the objectives and standards in Clause 56.
3. The land, and surrounding land, is also subject to a Development Plan Overlay provided for in Clause 43.04 of the planning scheme and to the first schedule thereof. At the time of the commencement of the proceedings there was such an overlay but the relevant schedule was No. 4 which was in somewhat different terms.
4. Clause 43.04-1 provides that a permit must not be granted to subdivide land (or certain other developments) until a development plan has been prepared to the satisfaction of the responsible authority. According to this provision no permit for the subdivision of this land, as now proposed, can be granted until there is a development plan under the overlay with which the responsible authority is satisfied. Satisfaction by the Responsible Authority with such a development plan is a condition precedent to grant a subdivision permit. The second proceeding before me, seeking a review of the failure of the responsible authority to be satisfied, is effectively an application to the Tribunal to determine that the responsible authority should, indeed must, be satisfied with the proposed plan.
5. Once there is satisfaction of the responsibility authority with a development plan under the overlay any permit granted, including one for subdivision, must be generally in accordance with the development plan and must include any conditions or requirements specified in a schedule to the overlay. The relevant schedule in this case is Schedule 1. Clause 1 of the schedule does specify some conditions and requirements but only in relation to land containing a place of cultural heritage significance. That Clause 1 is not relevant for present purposes.
6. Clause 43.04-3 of the planning scheme refers to the preparation of the development plan. Such a development plan may consist of plans and other documents and if it relates to residential subdivision in a Residential 1 Zone (as this one does) it must meet the requirements of Clause 56 and must describe the land to which the plan applies, the proposed use and development of each part of the land and any other requirements specified in the relevant schedule. Such development plan can be amended to the satisfaction of the responsible authority.
7. The relevant schedule (Schedule 1 to the overlay) relates to residential development in Gisborne and other towns and aims to improve the quality of residential subdivision in the Shire. At present it is subject to expiry on 30 June 2011.
8. Clause 2 of the Schedule refers to requirements for a development plan. The English expression employed in the draft of those provisions is particularly poor. Careful reading or analysis of the language used raises quite a number of problems and uncertainties. Although I have analysed what is said, I do not think it is useful to recount here the various problems, inconsistencies and uncertainties that I encountered. Nevertheless, if this Schedule is to have continuing application, I think it should be redrafted by somebody capable of writing good, clear, logical and consistent English.
9. Thus, without going into the linguistic problems, I note that there is reference to "development cells". Six development cells are identified and this land is in development cell 6. There are said to be issues specific to this cell which should be addressed in a development plan. There are two such issues in relation to development cell 6. The first is to encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.
10. It needs to be noticed that this is not a mandatory requirement. Lower density lots are encouraged. Furthermore, they are encouraged adjacent to those specified roads. The only one of those three roads that is really relevant in these present cases is Brooking Road. That is the only one this land fronts or is adjacent to.
11. This provision is rather vague in its reference to "lower density lots". Lower than what other density? Does this mean lower than density on lots not adjacent to those roads, but in the immediate area or on the land under consideration, or does it mean lower than normal or standard or average residential lots in a Residential 1 Zone?
12. An examination of the proposed plan in this case shows that there are lower density lots adjacent to the road and that all of those ones are of 3000 square metres or a bit more whereas those further north, away from the road, in approximate bands, have areas successively of approximately 2500 square metres through 2000 square metres, 1500 square metres, 1000 square metres on going north, but with larger to medium size lots along the eastern and western side boundaries, and with normal residential allotments at the northern end, particularly clustered around the public open space area in the northwest corner of the land. All this accords well with the requirement, insofar as the requirement is clear in saying anything.
13. In saying this I note a past comment made by a colleague in relation to Keith Altman & Associates v Macedon Ranges SC, Banks & Ors.[1] It is noted in paragraphs [43] to [46] in relation to an equivalent provision that this looks for lower density lots along perimeter roads. It includes an observation that this lower density, on the plan there considered, is "one block deep". I make the observation that, in my opinion, that is all this provision calls for.
14. The considerations in relation to development cell 6 also refer to identifying landscape options that soften impact on Mount Gisborne approach. As I understand it, it is common ground in this case that there are no problems in this connection with the current proposal.
15. Apart from dealing with "development cells" Clause 2 of the first Schedule of the Development Plan overlay goes on to list things that the development plan "must be informed by". The second paragraph under Clause 2 says that it must be "informed" by the following matters and then lists things that the development plan "must show" before, in yet another paragraph, going on to list things that the development plan "must be informed by to the satisfaction of the responsible authority". Really the whole thing is a muddle not helped by inconsistent use of terms, inconsistent setting out and inconsistent use of inverted commas. However, I do not think that it is necessary to go through, item by item, the things that the plan "must show" and the subsequent list of things that the plan "must be informed by" (although one might wonder precisely what that latter phrase means). I think such an exercise is unnecessary because it is common ground that the proposed development plan now under consideration satisfies the various requirements. I will nevertheless refer specifically to two of the items listed.
16. In the list of things that the development plan must show there is a sublist in relation to proposed subdivision layout. One of them reads:
    • Provides a variety of lot sizes and densities across the development cell allowing for a variety of housing types and for other compatible land uses;
17. The currently proposed plan, with its gradation of lot sizes between the largest at 4800 square metres and the smallest, adjacent to the proposed open space area of 590 square metres, clearly complies with that indicator.
18. Amongst the list of things that are to inform the development plan my attention was particularly drawn to one which reads:
    • A functional road layout plan to provide a safe, pedestrian-oriented principle road network. The plan must be submitted showing typical road cross sections and integration with the existing and proposed road network and the location of a public transport interchange. The plan should provide for a bicycle and pedestrian network which includes links to adjoining land and network.
19. If the phrase "informed by" means taking into consideration in relation to the preparation of the plan, this consideration, together with many others that are relevant, have been taken into consideration and, indeed, suitably accommodated to the extent that it is possible within the limitations imposed by circumstances on this proposed development plan.

1. The original proposal included 59 Brooking Road as well as the current two addresses. It proposed a 105 lot subdivision depicted on a proposed development plan and a proposed subdivision plan. In fact the same plan was utilized, both in relation to the development plan required under the overlay and for the subdivision.
2. The two matters were heard together on 30 July 2004 by a member of the Tribunal (other than myself) who is a town planner. A written determination with reasons was given on 3 August 2004. The full name of the case on that determination was Murone, Rose and O'Sullivan v Macedon Ranges Shire Council and Giudice & Anor.[2]
3. The zone and overlay controls were similar to those presently applying but the then relevant schedule to the Development Plan Overlay (Schedule 4) was in different terms and required minimum lot sizes to be in accordance with the Brooking Road, North Gisborne Concept Plan. It was recognised that a development plan under the overlay to the satisfaction of the responsible authority was a necessary precursor to permission.
4. It was said that the land concerned was too remote from the Gisborne township. That suggestion was rejected by the Tribunal. It was also suggested that the proposal was premature as there was no outline development plan at that stage. There was a North Gisborne Concept Plan, then forming an appendix to Schedule 4 of the overlay which was said to be sadly out of date and unspecific. It is no longer relevant.
5. The Tribunal rejected the notion that approval of the proposed development plan and subdivision were premature because the Council did not have in place an updated strategy to guide planning of undeveloped Residential 1 Zone land and because of the absence of a development contributions plan. The Tribunal said in paragraph [12]:

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.

1. That is a recurring theme in cases relating to development plans for this land and locality, I believe before as well as after the 2004 decision.
2. It is clear enough from its reasons that the Tribunal favoured the proposal, both of the development plan and in relation to granting a permit for the subdivision. However, in making its orders, it also made a mistake. It was aware that the development plan was before it and that the satisfaction of the responsible authority with that plan had to be established before there could be a permit for the subdivision. In its review of the proposed plan the Tribunal found it to be generally satisfactory but thought some minor amendments were called for.
3. However, the actual order it made did not deal with the development plan review and did not make an order imposing satisfaction. Furthermore, it did not specify the actual amendments that would be called for to make it satisfactory. The Tribunal simply made an order granting the subdivision sought subject to eleven conditions.
4. It might be thought that the Tribunal must have intended to make an order in favour of the applicants in relation to the development plan review. It was aware that such a plan was a prerequisite for the permit it purported to grant. It should have made an order specifically dealing with the plan. It may be the failure to do so was an oversight, or it may be that the Tribunal thought it was implicit in granting the permit that the prerequisite was also granted.
5. That is not really satisfactory. Section 116(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides that an order of the Tribunal must be in writing. To be specifically stated in writing is something different to leaving an order be derived by inference, even a necessary inference. Inference could not suffice in this case in any event. The minor amendments to the development plan contemplated in the reasons given by the Tribunal needed specification.

1. The Decision of the Tribunal was taken to the Supreme Court. That case is Macedon Ranges Shire Council v Murone and Ors[3]
2. The court expressed some sympathy with the applicants in that it recognised from the Tribunal's reasons that it had concluded that the development plan, subject to minor amendments, was satisfactory and that the subdivision was justified on the planning merits. However the Court found that the requirement of a satisfactory development plan under the overlay was not in fact satisfied so that the appeal had to be allowed and the matter remitted for hearing in accordance with law by a division of the Tribunal constituted differently to the member who had made the impugned order. That differently constituted Tribunal has ultimately meant one constituted by myself. The order of the court was dated 16 December 2004 which is quite some time ago. In the interim there have been other relevant cases before these two matters were resumed.
3. There was under consideration up to that stage as a satisfactory development plan and a satisfactory plan of subdivision. At paragraph [26] of the Supreme Court reasons comment was made on this circumstance.

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.

1. Now I have two separate documents namely Exhibit C1 as the development plan and C2 as the subdivision plan. In any event, I would have decided that one plan can serve both purposes provided that it is sufficient to satisfy both the common and the differing requirements of a development plan under the overlay and a subdivision plan.

Keith Altman & Associates v Macedon Ranges SC, Banks & Ors[4]

1. The case of Altman & Associates v Macedon Ranges SC, Banks & Ors was heard on 9 and 10 March 2006 and determined in a written decision dated 3 April 2006. It was heard and determined by yet another member of the Tribunal.
2. It represented a new approach to the problem of obtaining a development plan under the overlay satisfactory to the responsible authority. That proposal included the land being subject matter of the present case, but the owners acted in cooperation with the owners of a number of other properties in the locality to put forward a proposed development plan covering seventeen titles of various sizes and relating to a total area of 154.9 hectares.
3. Ultimately the Tribunal was not satisfied with the proposed development plan and the applications were refused. However, such refusal was not on the ground of prematurity or as contrary to orderly planning which grounds had been raised by the responsible authority. It had said that an outline development plan was a prerequisite, in terms of orderly planning, to a development plan under the overlay. By that stage the planning scheme had been amended so that the current Schedule 1 to the overlay was applicable. There was an outline development allotment plan referred to as Gisborne/New Gisborne Outline Development Plan in existence but it was at an embryonic stage and little or no weight was placed on it.
4. At paragraph[29] the Tribunal said "Little weight can be placed on this study." At paragraph [35] the Tribunal said that the final report had not been formally adopted by the Council and "weight cannot be placed on the recommendations of this document". At paragraph [38] the Tribunal said "It is not a document that can be relied upon to accept or reject the proposal before me."
5. I have already referred to paragraphs [43] to [46] in relation to lower densities adjacent to "perimeter roads" including Brooking Road.
6. The reasons go on to refuse the development plan and subdivision on the grounds of integration and neighbourhood character expressed in terms of lot size and density. The integration point arises from a quote looking for response to an integration with the surrounding urban environment. The point is still within an almost "throwaway" sentence at paragraph [56] which reads:

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

1. There is no discussion here as to what might be needed to satisfy this comment. It is rather ephemeral in this respect, and certainly not specific so that someone seeking to overcome the defect, if defect it is, is left without guidance as to what was required. Perhaps the true explanation is that this is not the real reason relied upon by the Tribunal in that case, but is no more than a passing comment. It appears that the real reason is in relation to neighbourhood character and density dealt with in paragraphs before paragraph [56].
2. In any event, it must be borne in mind that the criticisms made in this case related to a quite different, and much wider and larger proposal than I am now called upon to deal with.
3. In this connection I notice that the Tribunal complimented the applicants on having come together for the purpose of preparing a development plan over a wider area. Perhaps it is a pity that the responsible authority did not take advantage of this situation to either adopt the development plan proposed, or, if it was not satisfactory, then to amend it or develop it into a satisfactory form. The advantage of dealing with a wider and more substantial area, referred to by the Tribunal in this case, has ultimately been lost where the responsible authority has simply refused or failed to determine upon this and a subsequently proposed broad scale development plan, also for a 155 hectares.
4. The approach taken by the Tribunal in this case was discussed and analysed in the next one that I will refer to. However, I make the observation that the main ground relied upon in this Altman Case is no longer applicable.
5. In dealing with this main issue there is reference, at paragraph [50] of the reasons to Clause 56.01-2 of the planning scheme. That clause deals with site context description and design response in relation to subdivisions. Clause 56.01-2 specifically deals with the requirements of a design response, as I understand it, to accompany a subdivision permit application. The design response is to deal with certain matters including site and context features for the area identified in local policy and a neighbourhood character overlay. There is no neighbourhood character overlay applicable to this land.
6. Clause 56.03 deals with liveable and sustainable communities, and under it Clause 56.03-5 deals with a neighbourhood character objective which is to design subdivisions that respond to neighbourhood character. The relevance of Clause 56 was brought in by the zone provisions, and specifically Clause 32.01-2 in relation to subdivision. However, that provision specifically provides that for a subdivision involving sixty or more lots various objectives and standards are to be met but not Clause 56.03-5.
7. Indeed, it was common ground before me that Clause 56.03-5 and Standard C6 under it are not to be regarded as relevant. I note that the standard nevertheless includes that the subdivision should:
   • Respect the existing neighbourhood character or achieve a preferred neighbourhood character consistent with any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • Respond to and integrate with the surrounding urban environment.
8. These quoted propositions are the same as those cited in paragraph [51] of the Altman Case where there is reference to Standard C1 about neighbourhood character and integration. That appears to be the equivalent of the current Standard 6. (The present day Standard C1 deals with policy implementation).
9. The Tribunal determined that case on the acceptability of the proposed development plan in relation to existing neighbourhood character on the basis that there is no stated preferred neighbourhood character.
10. There appears to be a fallacy in this approach. The existing neighbourhood character was and is grazing land although there is now residential development proceeding in accordance with subdivisions on land to the west. The preferred future neighbourhood character is urban residential. Even if there is no specifically stated preferred future neighbourhood character, this is nevertheless perfectly clear from the Residential 1 zoning of the land. It is intended to be urban residential land as part of the town of Gisborne. Admittedly it may be on the southern fringe of the town with Brooking Road representing the southern boundary of the urban area. Nevertheless, Residential 1 Zone is specifically an urban residential zoning. It is to be distinguished from the Low Density Residential Zone to the west of Brady Road and the Rural Living Zone to the south of Brooking Road. It is not really the existing neighbourhood character that is relevant. At paragraph [55] the Tribunal said

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

1. I am afraid that I must respectfully say that I find a fallacy in this reasoning. Lower density on perimeter roads does not dictate how high the density should be away from those roads. In the event, lower densities in the plan before me are proposed for the lots adjacent to Brooking Road. I am not sure about the expression "mainly suburban character". However, even if density and lot yield in this southern area, and towards the southern boundary of the urban area of Gisborne, are lower than close to its main shopping centre, it is nevertheless an urban area and intended to be so.
2. Local policy in relation to Gisborne Township is found at Clause 22.02-2. Under "Role and Character" there, there is reference to Gisborne's character being of a village character in a rural and forest setting with the majority of its development centred in a valley setting. However, the first of the objectives under that clause is:

...to reinforce the key urban functions and role of Gisborne as a major township in the Shire.

1. I should have thought it obvious that Gisborne is a country town. It is not a hamlet. It may have some of the character of a village, however that might be defined, and whether or not a village is something between a hamlet and a town. Nevertheless, it is clear enough that Gisborne is already a major town in the Shire and that it is to become more so and, indeed, more of an urban settlement.
2. Other objectives in Clause 22.02-2 include that there should be clear limits to the population and physical urban growth of the township. That limit, for present purposes, is represented by Brooking Road.
3. Another objective refers to either housing choice, urban consolidation and infill of vacant serviced residential zoned land and the provision of community facilities.
4. Yet another reads:

To ensure the development occurs in a sequential manner allowing for efficient provision of development infrastructure.

1. This can hardly mean an altogether rigid development in expanding concentric circles around the centre of the town. In the real world account must be taken of topography, existing development and facilities and the like. In any event, development has not occurred in that fashion. It has already proceeding on land to the east of Brady Road between Brooking Road and Willowbank Road being the next east-west road to the north of Brooking Road. In any event this need for sequential development is, sensibly enough, related to the efficient provision of infrastructure. However infrastructure including sewerage and other forms of infrastructure are available or can be provided in relation to the land now under consideration.
2. I do not find anything in the Altman Case that suggests that the current proposals ought to be refused.

1. On 8 June 2007 a decision was given in relations to the case of Lock v Macedon Ranges SC[6]. The case had been heard on 19 and 20 March 2007 by a lawyer Member of the Tribunal experienced in planning matters. Like the Altman Case this too concerned approval of a development plan for a wider area involving nearly all the land bounded by Brooking, Bradley and Willowbank Roads and Calder Freeway. As with the Altman Case the development area was 154.9 square metres and the plan contemplated a residential lot yield over the whole area of 887 lots compared with the total of a little over 1000 in the Altman Case. The reasons recite that there were 17 titles involved. They include the land I am concerned with in these present cases, although the present review site amounts to only a small proportion of the total involved in the Lock and Altman Cases. Again care has to be taken not to necessarily apply to the development plan now under consideration observations or criticisms made in previous Tribunals in relation to the wider development plans proposed in those two previous cases.
2. The Lock plan represented an attempted mending of the Altman plan to render it acceptable. The central issue considered by the Tribunal in Lock was the number of allotments. Ultimately it was determined that the reduced number of 887 from an original of just over 1000 was insufficient. At paragraph [61] in Lock the Tribunal said:

[61] In summary, the most important concern of Ms Fong[7] (and the most important issue coming out of the hearing before me) is whether the density level of the proposed development is appropriate for this location, or whether this density has "crossed the line" so as to become unacceptably "suburban".

1. In paragraph [59] of Lock the Tribunal had identified "the level of density or yield of the proposal" as "central" to the assessment of the merits in the Altman Case as well as the Lock one. The Tribunal in Lock found the density level to be fatally inconsistent with broad "orderly planning" principle and contrary to key aspects of local policy dealing with Gisborne in Clause 22.02-2.
2. In coming to this view as to what was said to be the central issue the Tribunal in Lock referred to the doctrine of "repeat appeals" and the leading case on that question, namely Amoco Australia Ltd v City of Berwick .[8] The Tribunal in Lock appears to have approached its task in substance by comparing the then current proposal with the proposal in Altman to determine whether there was sufficient material difference to warrant a different decision.
3. I approve of the central notion in the "repeat appeal doctrine" approach, however it does rather assume that the earlier decision is rightly decided. Furthermore, in Lock the reduced number of lots compared to Altman was not the only change. As acknowledged by the Tribunal in Lock amendments to the planning scheme by the time of Lock meant that Standard C6 in Clause 56 was no longer pertinent. This was acknowledged in paragraph [12] of the reasons in Lock see also paragraph [66]. Nevertheless, neighbourhood character considerations with which Standard C6 and the Clause in which it appears are concerned were essential to the Altman decision.
4. In finding the reduction to 887 lot to be an inadequate reduction that "fiddled around the edges" of the Altman decision the Tribunal in Lock saw the need for "a yield much closer to the 500-630 lot range inherent in the 1993 Township Study and the draft ODP[9]". This was an observation in relation to that Lock Development Plan as a whole. It cannot be transferred without adjustment to be applied to the current plan for 101 lots on a just over 20 hectares. Various considerations of position, geography, topography, roads, developments and the like have to be taken into consideration. This was recognised in Lock in a way that I will refer to shortly. However, the current proposal of 101 lots on the review site turns out to be an equivalent within the range of 500-630 specified in paragraph [72] of the Lock Decision. It can thus be seen to be equivalent to what was said to be acceptable in the Lock Case.
5. In paragraphs [70] and [71] of the Lock Decision there is a useful discussion of the importance of the location and characteristics of particular portions of the land under discussion. The member in Lock said:

I assume Mr Milner's[10] knew that the creek running north-south through the middle of the site in effect creates two virtually separate communities, and that common sense suggests that an appropriate design response for the lots on the western side of the creek (closer to the town centre) will not necessarily be appropriate for the lots on the eastern side of the creek (which will be more isolated from the centre of town).

Following this broad line of thinking, I agree with Mr Milner that the section of the subject land on the western side of the creek can reasonably accommodate more ambitious densities, compared to the eastern side. This is due to the western side being closer to drive to the town centre, closer to any potential public transport, and closer to local shops which hopefully will spring up around the Willowbank Road/Brady Road intersection. I endorse Mr Milner's evidence that a more low-key design response seems in order for the eastern section of the site, with more emphasis on lifestyle size lots which could be pitched at the upper end of the market. Given the likely scenario that people living on the eastern side of the creek will be fairly isolated from local services and shops, having lifestyle size lots will at least reduce the number of future occupants in this situation.

1. The creek referred to is the creek previously mentioned that runs north to south a short distance to the east of the current review site. The main body of the current review site is just the area where somewhat smaller lots can be suitably accommodated, at least in its central and northern portions.
2. The current plan has, in fact, been well thought out in terms of planning principles, and in the light of what has been said in Lock and other previous cases. There are larger lots along the Brooking Road frontage with a gradation to smaller ones to the north, particularly in relation to the northwest corner where proposed public open space is located. This accords with relevant policy. Furthermore, the lots along either side have been designed to interface well with land to the east and to the west. Mr Milner and the Lock decision contemplate larger allotments to the east of the creek, between the creek and Calder Freeway. On the western side, to the west of Brady Road, there is a low density residential area. The two properties immediately to the west of the review site, and between it and Brady Road, have received planning permission for subdivision into relatively large residential lots. The one immediately adjoining to the west was the O'Sullivan property at one time included in the current proceedings. I consider the interfaces to east and west to be well thought out and suitable. I note that the subdivision proceeding in relation to the O'Sullivan property (59 Brooking Road) has been approved by the Responsible Authority but did not come before the Tribunal. I should not be understood to be saying that good planning in relation to that property necessarily demanded so sparse a subdivision as is now proceeding.
3. I refer to relatively intense, not intense but only relatively intense, development to the north of the review site.
4. Whilst discussing the Lock decision, there are two matters which, I think, call for some comment on account of them being misunderstood or distorted. One is in relation to so called "leap frogging" of developments.
5. There are policies that look for sequential development, although these are focussed on the need for and provision of infrastructure. It is bad planning to have development proceeding at a stage when it is beyond the reach of existing or available infrastructure. For example, it would be undesirable to promote development at the extremities of a planned urban area if that would amount to "leap frogging" beyond the reach of available sewerage and town water supply. It is in relation to integration and sequential development in terms of infrastructure that the term "leap frogging" has appeared in local policy statements. I should repeat here that no infrastructure problems arise or have been referred to in relation to the proposed development plan area in the present case.
6. There has been some discussion of "leap frogging", including in the Lock Case, in a different sense to the original one that had been recognised as bad planning. To the north of the current review site, and between it and the centre of the town, there is an area where there are large allotments. This is not the land immediately to the north of the review site, but further north. It has been suggested that it would be undesirable "leap frogging" to allow smaller allotments to the south of this belt of large lots.
7. That is not necessarily the case. It is also an important planning policy that there should be a variety of lot sizes to meet varying needs and desires of existing and potential residents. It is in order, if an owner wishes to do so, to subdivide into larger lots on some land within the urban area, to perhaps meet perceived market demands. Such a subdivision might occur midway between the town centre and the planned urban edge, or elsewhere within the planned urban area. It does not follow that lots smaller than those in such a subdivision cannot be allowed further south or further out from the town centre. There is certainly good sense in having more intense development, perhaps smaller lots, in close proximity to the centre of the town where many services are available. It does not follow from this that there must be a rigid series of concentric circles with lots in each circle larger than the one before.
8. In any event, so far as the current case is concerned, development has proceeded around the end of the area of larger lots and from there further south toward the Brooking Road urban boundary.
9. The policy intended to avoid development running beyond infrastructure should not take on the life of its own so as to prevent otherwise suitable development where infrastructure problems do not arise.
10. The second point in this connection also relates to infrastructure. Part of the concern about integration with the development of the town also relates merely to infrastructure. In Altman there was concern that development of so large an area as that covered by the development plan proposed in that case might be expected to give rise to analysis of integration with the development of the town. Of course, the present case is not for such a large area, but a much smaller one. The opportunities for integration in the present case are much less. There is a need to plan so that there can be connections between and to existing and proposed roads, public open space and paths for pedestrians and bicycles, but a site such as the present one can only do so much in this respect. As with Altman, so with Lock, it is perhaps a pity that the Council did not take the opportunity to deal with such questions when it had a development plan for a large area before it. Here was an opportunity to adopt a suitable plan, if necessary with modifications and amplifications. That opportunity has been lost now that these current two owners have given up on trying to achieve a broader plan in conjunction with other owners. The opposition or indifference of the Council in these respects, reinforced by refusals from the Tribunal, has (perhaps understandably) discouraged attempts at broader planning by private owners. At any rate, I do not think the integration point is relevant for present purposes, at least to the extent that it relates to the availability of infrastructure in circumstances where infrastructure is in fact available.
11. So far as the key questions determined in Lock are concerned, they do not indicate or support the notion of refusing these current proposals. On the contrary, the current proposals are compatible with the principles in the Lock Case, as no doubt they were designed to be.
12. Apart from the so called "key problems" in Lock, comments were made on some other points of some relevance for present purposes. I will refer to them briefly.
13. There is reference to the Council's draft outline development plan which was also referred to in the Altman Reasons. At paragraph [42] of Lock there is reference to an earlier case of GR8CO Investments Pty Ltd v Macedon Ranges SC[11] where the Lock member sitting with Senior Member Baird rejected an argument of prematurity in relation to a development plan although Council was at that stage still in the stages of preparing strategic planning for Gisborne. The hiatus created by the failure of the Council to attend to this matter was regretted. In Lock it was noted that it had been said in the Altman Case that the outline development plan was not sufficiently advanced to be given weight. At paragraph [45] of Lock it was regretted that the matter had not advanced in the years since Altman. Basically that is still the situation. Mr Milner, the town planner who gave expert evidence on behalf of the Council, indicated that this was the situation. Council's advocate before me apparently disagreed with Mr Milner in suggesting that at least some weight should be given to it. On one or two aspects the current plan does accord with the still embryonic outlined development plan, but I too do not regard that plan in its present state as being a significant consideration against the current proposals.
14. The cell 6 provisions in the Schedule to the development plan overlay were referred to. It was observed that its advice was complied with in the Lock plan. That is still the situation in relation to the current plan. Some other comments were made by the way, but I have already sufficiently dealt with them.
15. If it is not already sufficiently clear, I agree with the Altman reasons in relation to the Altman case and in relation to the current one, that the outlined development plan does not render the proposals premature or inconsistent with orderly planning.

1. I have surveyed in some detail these various cases that are forerunners of, and give background to, the current proposals. The earlier versions in these very proceedings were approved, so far as their planning merits were concerned, by its determination of 3 August 2004 in relation to the hearing conducted on 30 July 2004 that was before the Appeal to the Supreme Court of Victoria in Macedon Ranges SC v Murone & Ors. The Judge in the Supreme Court expressed some sympathy for the applicants in not having received approval of their then development plan and not having been granted a subdivision permit, having regard to the findings of the Tribunal on the planning merits. Such sympathy must be more pertinent at this stage. Since then there have been the two Tribunal cases of Altman and Lock in relation to proposed development plans for the much larger area amounting to 154.9 hectares. Those two decisions were made by the Tribunal on their merits. The current version now proposed is for a development plan and plan of subdivision have been refined in the light of the views that have been taken in relation to these forerunner cases. Advantage has also apparently been taken of comments and arguments advanced in those previous cases. The current version is also to be seen in the light of planning scheme amendments that have occurred since the 2004 Tribunal decision. It is perhaps hardly surprising that, having started with a proposal that the Tribunal found acceptable, and having refined it in the light of these considerations, there is little left for the Council to urge against the current versions.
2. I have considered these forerunner cases with some care. I note that, not only did the 2004 case approve of the then proposals on their merits, but planning scheme amendments have removed the relevance of the main basis for the Altman refusal. Lock followed Altman on the basis that it was substantially a repeat appeal and that the alterations compared with the Altman versions were insufficient to warrant a different decision. However, on a careful consideration of Lock it can be seen that the current proposals incorporate the indications given in Lock as to what would be appropriate lot sizes and densities in relation to the particular portion of the overall Lock area that are the subject matter of the current proposals.
3. The Responsible Authority has relied heavily in its case before me on the expert evidence of Mr Rob Milner in relation to questions of planning merit. He also gave evidence for the Responsible Authority in the Lock case and the Tribunal, in that case, effectively adopted what he had to say on what was perceived to be the main issue. In my opinion the current versions of these plans are not only compatible with and supported by the Lock decision, but also by the Milner evidence, so far as the key issues are concerned.
4. Mr Milner's evidence in the hearing before me was relatively short. He had already said most of what he had to say. His conclusion at the end of his written report repeated what he said in his executive summary at the beginning. Both contained six paragraphs. The first three are supportive of the proposal. They read:

- The site is suitable for a residential development and a development plan depicting a residential estate;

- The Development Plan contributes to the creation of 500-630 lots within the broader precinct covered by the earlier failed Development Plan, consistent with that recommended by the previous Tribunal decision, based upon the Gisborne Township Residential Review, Trevor Budge & Associates, 1993;

- The Development Plan also addresses some of the principles contained in the Council's new Gisborne/New Gisborne Outline Development Plan, namely the location of smaller lots near the principal area of public open space and the creation of larger lots away from this area.

1. I agree with these conclusions. In agreeing with the third one I do so, not because it happens to coincide with what might be said in the Outline Development Plan, to which I attach minimal weight, but rather because those particular propositions, in my opinion, represent sound planning in any event.
2. Mr Milner's fourth conclusion reads:

- However, the Development Plan fails to have due regard to the lot sizes approved on the subdivisions to the west of the site and those likely to prevail on the land to the east of the site, and as a result produces a subdivision and a range of lot sizes which will become a discordant element in the wider precinct.

1. I have already discussed this argument. Mr Milner has already recognised that smaller lots are appropriate here. Insofar as he suggests that those on the eastern and western interface are inappropriate, having regard to what is or is likely to occur further in those directions, I simply say that I disagree with him. I consider the plans to be quite suitable in these respects and that the lot sizes will not occasion a discordant element in the wider precinct.
2. His fifth conclusion reads:

- The Development Plan also fails to provide the type of lot sizes required to produce an appropriate transition to the Rural Residential precinct on the southern side of Brooking Road.

1. Brooking Road is to be the demarcation between the urban Residential 1 Zone to the north and the more rural land to the south. Land to the south is not zoned rural residential, but rural living zone. The lots in this proposed subdivision and this proposed development plan, fronting the northern side of Brooking Road have areas of 3000 square metres or more. Behind several of them there is the larger 4800 square metre lot. In my opinion this provides both a suitable interface and a suitable transition. Ultimately, I must say that I simply disagree with Mr Milner as to this proposition.
2. His sixth and last conclusion reads:

- The development since the decision Lock v Macedon Ranges SC [2007] VCAT 1016 of individual parcels of land in isolation, instead of under a common new Development Plan, has made it difficult to address issues of pedestrian/bicycle/public transport/open space connections between the precinct and the remainder of Gisborne, and this Development Plan has not sought to adequately resolve those issues.

1. I agree with Mr Milner that it is a matter for regret that the owners of these individual parcels have been effectively thrown back on proceedings in relation to their own land, although they sought to participate in a broader development plan covering a substantial part of what Mr Milner refers to as the "precinct", and a substantial part of what the Schedule to the overlay refers to as development cell 6. The lack of such a broader, development plan, and the lack of a strategic outline development plan is hardly the fault of these applicants. The delays and failures of the Council as planning authority have been lamented in the previous cases and I have noted the failure to take advantage of the opportunities presented by the two broader scale development plans considered in Altman and Lock. Taking advantage, in this context, does not mean necessarily accepting them uncritically. Rather a responsible consideration of possible modifications might have led to a broader plan that was acceptable to the Council. As it is, the opportunity has, to a significant extent, been let pass by, not only because of the significant delays that have been imposed on these current applicants, but also because development has proceeded and is proceeding, including down the eastern side of Brady Road, without such a broad development plan or outline development plan ever having been brought to fruition.
2. Furthermore, these current pieces of land forming the current review site are not at the interface between what Mr Milner refers to as "the precinct" and what he refers to as "the remainder of Gisborne". He is therefore perfectly correct in saying that it is "difficult" to address interconnection issues. In fact to describe it as "difficult" is perhaps rather an understatement. I think it is fair to say that the current plans deal with these issues of connection, at least in relation to adjoining land, and generally, as fully as it is possible in the circumstances. I therefore do not agree with the comment that the current development plan has not sought to resolve those issues, so far as it is open at this stage and in relation to these pieces of land. It is not apparent to me what further steps, of any significance, could be undertaken. Mr Milner has not pointed them out. It is not fair to say that the plans have not sought to do something where that something is not open to them in the circumstances. I am not capable of swimming from Melbourne to Launceston. In relation to such an undertaking, which is clearly beyond my capacity, am I to be reproached for not seeking to do it? As far as I am concerned, these plans have sought to adequately resolve the issues, so far as the circumstances now allow.
3. The document containing the written submissions on behalf of the Responsible Authority set out a good deal of background material, but what is actually said, and summed up, under the subheading "SUBMISSIONS" is limited to the following two paragraphs:

[47] As an overview, Council retained significant concerns with the revised Development Plan. Specifically it is concerned that the Development Plan still does not satisfactorily address pattern of subdivision within the area, and will produce discordant element in that:

[47.1] it does not have due regard to the pattern of development and lot sizes to the east, and those likely to occur to the west;[12]

[47.2] it does not provide an appropriate transition to the rural residential precinct on the southern side of Brooking Road; and

[47.3] it does not adequately address connectivity issues with the Gisborne Township.

[48] Council relies on the evidence of Rob Milner with regard to the merits of proposed Development Plan.

1. In substance this merely repeats, in other words, what Mr Milner has said. I have already dealt with these propositions and need say no more about them.
2. The proceeding in relation to the proposed subdivision is a failure of review under s.79 of the PE Act. However, the Responsible Authority did resolve that it would have refused to grant a permit specifying nine grounds of refusal. They are set out in a letter of the Responsible Authority dated 17 May 2004. It will be apparent from what I have just said that no attempt was made, at the hearing before me, to substantiate most of them. I have dealt with those that were pursued. I find none of them to be justified. In relation to the matters that were pursued in the hearing my reasons will be apparent. My reasons for not upholding the others will be apparent from what I have said in discussion. Several of them were clearly identified as dead issues in the earlier cases that I have referred to. It can be noted that the letter of 17 May 2004 predates the hearing and determination by the Tribunal of the 2004 case.

1. It will be apparent from the above reasons that I consider the proposed development plan to be acceptable and that the application for review in relation to it should therefore succeed. Likewise, the application to review the failure of the Responsible Authority to grant the permit will be granted together with the permit subject to conditions. These conditions are based on draft conditions surrounded by the Responsible Authority, but with such modifications as I consider appropriate in the circumstances. The draft conditions tendered were received at the Tribunal by email on 10 December 2007 and specifically refer to a hearing date of 11 December 2007. However, some of the subparagraphs in Condition 1 referring to modifications appear to me to relate to the original proposed development plan rather than to Exhibits C1 and C2 tendered to the hearing. Another set of draft conditions was included under Tab 39 in the book of documents tendered. However, that appears to be an earlier draft and also to relate to the earlier proposed development plan and subdivision plan considered by the Tribunal in 2004. I have been obliged to make alterations accordingly. I have deleted the expression RCIVI/RIM from proposed condition 9 as I have no idea what it is meant to mean. Such things should be expressed fully in permit conditions and such mere initials should be avoided.

[1] [2006] VCAT 472 and again at [2006] VCAT 582

[2] These are in fact the same two cases that are currently before me.

[3] [2004] VSC 525

[4] Citation to this case has already been given

[5] [2007] VCAT 1016

[6] [2007] VCAT 1016

[8] ( 1983 ) 1 PABR 166

[9] ODP here stand for outline development plan.

[10] Mr Rob Milner, town planner, gave evidence for the responsible authority in Lock as he did in the hearing before me.

[11] [2005] VCAT 434

[12] I believe this is back to front and should say "lot sizes to the west and likely to occur to the east"