The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted in relation to permit application P341/04.

Ms Keri Hoffman, principal planner for City of Casey

Mr Tom Swinburne, solicitor, appeared on behalf of Brundrett Properties Pty Ltd

1 This is an application brought by A Napolitano against the failure by Casey City Council ('the Council") to grant a permit within the prescribed time for a 20 lot subdivision and easement removal at No. 44 Brundrett Road, Narre Warren North. Nineteen of the lots are about 2000sq.m while the largest lot (Lot 20) has an area of 1.345ha and is to contain Mr Napolitano's existing house and outbuildings.

2 This dispute revolves around the alignment of the east-west arm of the new road required to service the subdivision. Mr Napolitano wants to continue living on his property and prefers this contentious section of road located to the north of his dwelling while the Council believes the road should follow the southern boundary. Council thinks that its preferred alignment properly reflects an approved development plan and this will facilitate a more rational outcome for road access to land owned by Mr Napolitano's two southern neighbours. These neighbouring properties also have subdivision potential. If Council's alignment is approved, Mr Napolitano is concerned about disturbance from traffic passing his house and the fragmentation of Lot 20, diminishing his use and enjoyment of the land.

3 The Council determined that had it been in a position to do so, it would have refused the application on the following grounds:

1. The proposed subdivision is not generally in accordance with the approved Development Plan, the Cell N Strategy.

2. The proposed development would prejudice the proper future planning of the area.

4 The application had been advertised by the Council to surrounding property owners and occupiers and four objections were received.

5 The Council's submission provides a succinct summary of the review site which I adopt:

The site is accessed from Brundrett Road, approximately 680 metres south east of Narre Warren North Road...

The land has an irregular rectangular configuration, with a total site area of 5.96 hectares that lies in a generally north/south direction. It is on the northern side of Brundrett Road, near the intersection of Harries Court.

An 80 metre long unmade Government Road connects the site to Brundrett Road and is the only connection between the subject site and the surrounding road network.

A 1940's era weatherboard farm house and ancillary outbuildings are located in the south east corner of the site. The balance of the site is generally vacant rural land that has been variously used for market gardens and grazing over time.

Existing vegetation on site is generally confined to the area surrounding the dwelling and of exotic origin.

There are two dams located in the western portion of the site that are used for water storage associated with the rural use of the land.

Topographically the land falls gradually from the southeast corner of the property towards the western and north western boundaries.

The land is more particularly described as Crown Allotment 13 Section 2 Parish of Berwick. The land is not encumbered by any Restrictions with the exception of easements along the eastern and western boundaries. These easements were created in favour of the State Rivers and Water Supply Commission for the supply of water to agricultural land via easements. These channels no longer exist on the ground.

6 Surrounding land to the north, east and west is characterised by fairly recent conventional low density residential development on lots of around 2000sq.m. These properties obtain their access from local roads separate to the review site.

7 Two lots abut the review site to the north. The first of these, No. 46-52 Brundrett Road owned by the Maxfield family, is located on the south-east corner of Brundrett Road and the unmade Government Road. I will refer to this property as the "Maxfield" property. The land is developed with a dwelling located in the north-east portion of the site between two powerline easements. Driveway access is from the Government Road. A number of sheds are also scattered throughout the site. The site has an area in excess of 4000sq.m and appears to be used for rural residential pursuits.

8 The second property, No. 54-62 Brundrett Road ("the Brundrett property") is a vacant site with vehicle access currently from Brundrett Road. It is also traversed by two powerline easements and is about 4 times larger than the Maxwell property.

9 Brundrett Road connects with Narre Warren North Road to the west and currently terminates about 400m to the east of the Government Road. It is constructed with rollover kerb and has a separate footpath and horse trail on its northern verge. This constructed leg terminates at the west edge of the Government Road, with the un-constructed eastern leg comprising a narrow gravel road. Ultimately, it is intended that Brundrett Road will provide an east-west connection between Narre Warren North Road and King Road, thus linking with the north-south alignment of Harkaway Road.

10 The Fountain Gate Activity Centre is located approximately 3.5km by road to the south.

11 This application proposes the subdivision of the land into 20 lots and the removal of easements.

12 Lots 1 to 19 have an area of approximately 2000sq.m each and are mainly rectangular in shape, with either a north-south or east-west configuration. Lot 20 is the largest lot with an area of 1.345ha located at the southern end of the subdivision. It will contain an existing dwelling and outbuildings.

13 A new road will connect with the northern end of the Government Road for a distance of about 80m before turning east and running north through the centre of the subdivision. The road then terminates in a cul-de-sac at the site's north-western end.

14 The easements for removal are now redundant having formerly being used for the supply of water to agriculture.

15 The land is zoned Residential 1. Pursuant to Clause 32.01-2 of the Scheme, a planning permit is required to subdivide land. Such applications must meet the requirements of Clause 56 of the Scheme (Rescode). These requirements are that a development should meet the objectives and standards of that clause.

16 A planning permit is also required for the removal of an easement under the provisions of Clause 52.02 of the Scheme.

17 The Development Plan Overlay - Schedule 2 (DPO2) also affects the land. Of relevance to this case, Clause 2.0 of the schedule stipulates a minimum lot size of 2,000 square metres, with which the proposal complies.

18 The purpose of the overlay (Clause 43.04) includes:

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

To exempt an application from notice and review if it is generally in accordance with a development plan.

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

•

Be generally in accordance with the development plan.

•

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

20 Clause 43.04-3 refers to the preparation of the development plan stating that:

The development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages.

•

The land to which the plan applies.

•

The proposed use and development of each part of the land.

•

Any other requirements specified for the plan in a schedule to the overlay.

The development plan may be amended to the satisfaction of the responsible authority.

21 The requirements for the development plan, set out in Clause 3.0 of Schedule 2 to the overlay are:

•

The existing and proposed road network;

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The location of existing and proposed open space including open space linkages; and

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The location of any existing or proposed community facilities including school sites.

22 Of relevance to the review site, Council has approved a development plan which is known as the 'Cell[1] "N" Strategy' ("the Development Plan"). It was originally adopted by Council on 26 April 1995 and has been re-adopted three other times since, most recently on 19 June 2001.

23 The objectives of the Development Plan are as follows:

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To provide a planning framework to guide the orderly development of residential land within the cell.

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To identify existing environmental features, land uses and constraints which need to be considered in the development of land for urban purposes.

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To identify requirements in relation to the provision of transport infrastructure, utility services, community facilities, open space and other land use matters which are necessary to serve the need of the local and wider community.

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To provide an information resource for local residents, community groups and businesses interested in the development of land within the cell.

24 Features of the Development Plan relevant to this Application are:

•

Road location - a roadway connects with the Government Road, enters the review site at its south-west corner, then turns east along the southern boundary of the site ending near its eastern boundary. A north-south road through the middle of the site is also shown linking with the east-west arm. The east-west alignment of the road allows vehicle access to both the Maxfield and Brundrett properties.

•

Brundrett Road - will provide an additional road link between Narre Warren North Road and Harkaway Road. It will act as a collector road with an ultimate road reserve width of 22m (currently 15.24m wide in places). The widening of the road reserve will allow the provision of a 10.25m verge on its northern side accommodating a horse riding trail linking Ivens Reserve to Kurl Park.

25 State and Local planning policies relevant to this application include Clauses 11, 14.01, 15.06, 15.12, 16.01, 19.01, 21.05 (The Built Up Area) and 22.05 (Residential Development Policy).

26 The Residential Development Policy ("the RDP") applies to all land zoned residential. It seeks to implement one of the key strategic directions identified in Council's Municipal Strategic Statement - the orderly development of residential areas and provision of urban infrastructure. Two of the relevant policies are that:

•

Residential development be in accordance with any approved development plan under a Development Plan Overlay.

•

Departures from approved Development Plans will be supported only in exceptional circumstances and only if it can be demonstrated that the departure will result in a net community benefit.

27 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area. Of relevance also, as provided for at Section 60 of the Act, is the Metropolitan Strategy, Melbourne 2030, it being a strategic plan adopted by the minister.

28 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing and the policies, objectives and decision guidelines of the Scheme.

29 I was advised by the parties that in January this year, Council had issued planning permit No. P864/04 for a 25-lot staged subdivision. The land in Stage 2 contains the existing house which when subdivided, would create 3 lots. The road layout approved under that permit is generally in accordance with the Development Plan.

30 It was common ground that in principle, the land is suitable for a residential subdivision. Nor was there any dispute between the parties about the proposed easement removal. Importantly:

•

None of the parties advocated the provision of vehicle access to the Maxfield or Brundrett properties directly from Brundrett Road in the event of their further subdivision.

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The validity of the Development Plan in the context of the DPO2 was not contested;

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The Applicant is not seeking to amend the approved Development Plan.

31 The key issue for consideration is whether the proposal is generally in accordance with the approved development plan.

Is the road layout generally in accordance with the Development Plan?

32 The parties accepted that for a permit to be granted, the proposal must be generally in accordance with the Development Plan. This is a pre-requisite under the provisions of the Development Plan Overlay and one of Council's grounds of refusal.

33 Mr Skinner submitted that the Development Plan should be read as a general framework and guide to the future development of the area. It should not he said, be applied with "millimetre precision" when considering development proposals. In support of this submission he:

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referred to the Development Plan's lack of clarity as to whether the disputed east-west road is intended to be located within Mr Napolitano's site or that of his neighbours to the south;

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highlighted the lack of specific design outcomes for the review site and absence of anticipated timing or staging of the road connection;

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referred to the lack of any specific access/egress outcomes for the Brundrett land.

34 He also submitted that the overarching purpose of the Development Plan would continue to be met or be improved upon by the proposal because:

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an indicative lot layout plan[2] (although not forming part of this application) shows how a road connection could be provided to the Brundrett and Maxfield properties;

•

in neighbourhood character and amenity terms, an improved outcome would be achieved for the Maxfields[3] by locating the road away from the northern boundary of their land.

35 Mr Skinner also referred to Lowther Hall Anglican Grammar School v Moonee Valley CC [2000] VCAT [2000] VCAT 1791, where Senior Member Byard said that:

[17] ..."generally in accordance" does not mean exactly or precisely in accordance with...

36 I agree with this interpretation of the words "generally in accordance with", an interpretation that has been accepted by various divisions of the Tribunal. (See for example Canet v Brimbank CC [2003] VCAT 13 and Springhaven Property Group v Whittlesea CC [2005] VCAT 166).

37 In the case of Canet v Brimbank, Deputy President Horsfall observed that the principles that must be applied to determine whether a development is generally in accordance with a permit or plans are:

(a) General accordance is a question of fact to be judged on the facts and circumstances of each case, and

(b) The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".

38 The acceptance of these principles was affirmed by Morris J in Melbourne CC v Becton Corporation [2003] VCAT 1077.

39 I agree with and adopt the principles established by these authorities.

40 Before considering the facts and circumstances of this case I think it is relevant that the Development Plan has existed since 1995 and has been reviewed and periodically re-adopted by the Council. Given these circumstances and based on my reading of the document, I consider that it is a robust strategic document that remains relevant to this Application.

41 What then is the purpose of the east-west alignment as depicted in the Development Plan? While I accept Mr Skinner's submission that the purpose of the alignment is not explicitly stated, I think that overall, the Development Plan is sufficiently detailed for one to readily conclude that:

•

Brundrett Road is to become a collector road providing an important link between two major roads;

•

the design of Brundrett Road includes a horse trail on its northern side;

•

direct vehicle access to land subject to further subdivision is to be restricted to local roads, such as the Government Road, thus rationalising the number of crossovers and potential for conflicts between residents accessing their properties, horse-riders and through traffic.

42 It follows that an east-west road between the Brundrett property and the Government Road is required to achieve the strategic outcomes sought in relation to the ultimate role of Brundrett Road. More particularly, the road layout needs to be designed to avoid the Brundrett property from becoming land-locked. The alignment of the road as shown on the Development Plan is cognisant of this issue and offers a logical solution.

43 I agree that if approved, the proposed subdivision layout under consideration has the potential to continue allowing future access to the Brundrett property (as demonstrated in the indicative layout plan). Mr Skinner submitted therefore that the proposal under consideration does not represent a change to the status quo. However, it is necessary to consider the implications of the Applicant's preferred arrangement.

44 Assuming that access is ultimately made available to the Brundrett property, the connecting road will have a length of about 76m. This road will duplicate that parallel leg of the extended Government Road located 3 lots away to the west.

45 I consider that the duplication of this road represents an inefficient use of land and is contrary to principles of orderly planning. Not surprisingly, orderly planning is one of the objectives of the Development Plan, reflecting the strategic role of such documents and the responsibility that planning authorities have in preparing them. Together with the efficient use of land, principles of orderly planning are enshrined in the State and local planning policy framework[4]. Clause 11.03-4 (Infrastructure) provides a relevant summary (underlining added):

Planning for development of urban physical and community infrastructure should enable it to be provided in a way that is efficient, equitable, accessible and timely. Growth and redevelopment of settlements should be planned in a manner that allows for the logical and efficient provision and maintenance of infrastructure, including the setting aside of land for the construction of future transport routes.

Strategic planning should facilitate efficient use of existing urban infrastructure and human services. Providers of urban infrastructure, whether public or private bodies, are to be guided by planning policies and should assist strategic land use planning. ...

46 The second test for consideration relates to the level of detail and precision in the Development Plan and therefore the degree of flexibility available when considering whether proposals are "generally in accordance with".

47 I agree with Mr Skinner that it is unclear as to whether the road is located on one side or the other of the review site's south boundary, or indeed whether it straddles this boundary. Nor is it possible to ascertain precisely how far east this road travels, other than to conclude that it terminates just before the eastern boundary of the Napolitano land. The lack of clarity in relation to these two aspects of the road alignment gives rise to a reasonable degree of flexibility when interpreting the meaning of "generally in accordance with".

48 This however is to be distinguished from the clarity that exists in relation to the point at which the road alignment deviates from the Government Road to commence its eastern leg. The Development Plan is sufficiently detailed with the outline of lot boundaries to clearly discern that the road follows the common boundary between the Napolitano land and the two southern neighbours (ie the Maxfield and Brundrett properties). Thus, in relation to the point at which the road commences its east-west alignment, the level of detail is such that I consider there to be a limited degree of flexibility in departing from the Development Plan. In this context, I conclude that the proposed alignment, being located about 75m further north of that shown on the Development Plan goes beyond a reasonable degree of flexibility and would not be generally in accordance with the Development Plan.

49 I appreciate that Mr Napolitano considers that there will be some amenity impacts due to traffic passing within 25m of his house and a change in the way he is able to use the balance of his land. Although I do not necessarily believe that the road layout in the Development Plan will cause unreasonable amenity impacts to persons living this distance from a local road in a Residential 1 zone, I accept that the subdivision represents a significant change to the existing rural feel for the occupants of this large property nearly 6ha in area.

50 However, I am mindful that the land is zoned Residential 1 and ultimately, it is Mr Napolitano who seeks to realise the subdivision potential of his land with the ability to control the staging of the subdivision and release of lots. The 25-lot permit issued by Council in January shows one way of staging the subdivision while retaining the house on about 6000sq.m of the Stage 2 land. In this context, I do not think that Mr Napolitano's desire to remain living on the land without being affected by the changes he seeks to bring about through subdivision amounts to an exceptional circumstance. Nor do I consider that the alternative layout under consideration will bring about a net community benefit.

51 Notwithstanding my view about the degree to which Mr Napolitano's amenity may be affected, short term dis-benefits for individuals is sometimes the nature of strategic planning. As the Tribunal observed in Jocelyn Meadows v Casey CC [2004] VCAT 2627, strategic planning may give rise to a lack of co-incidence between short term and long term objectives when considering proposals for the use and development of land. In the Jocelyn Meadows case, the Tribunal considered the status of a development plan and the desire by the permit applicant to use and develop part of the Fountain Gate Activity Centre for restricted retail purposes in a precinct identified in a development plan primarily for office purposes. While economic considerations in that case underscored the debate about an appropriate use of the land, the tension between short and long term objectives that may exist in such situations equally apply here:

[67] We do not accept the argument that because restricted retail may be currently perceived to represent the highest and best use of the subject land, this is a reason to reject the 2004 Development Plan. Sometimes there will be conflict between the current highest and best use of land in economic terms and long term strategic planning objectives. Indeed, in part, the purpose of strategic or structure planning is to counter short term outcomes that may be produced by a highest and best use approach, by substituting a longer term view where this is in the broad interests of the community and in the interests of sustainable development for the benefit of present and future generations (see clause 11.01 of the SPPF).

52 In summary, I find that the proposal would not facilitate the long-term orderly planning of the area and would result in the inefficient and unnecessary use of land for a duplicate section of road. I also find that the proposed road alignment would not be generally in accordance with the approved Development Plan being located some 75m away from the location depicted on the Development Plan. Nor am I satisfied that the proposed alignment would result in a net benefit to the broader community.

53 For the reasons set out above, it is my conclusion that the decision of the responsible authority is affirmed and no permit is issued.

[1] The word "cell" is simply another name for "precinct".

[2] This indicative plan also shows the further subdivision of Lot 20 into 5 lots of about 2000sq.m. This would ultimately bring the total yield to 25 lots.

[3] The Maxfields objected to the proposal, citing as one of their concerns the potential for 3 roads to surround their property if the road alignment shown on the Development Plan was adopted.

[4] See also Clauses 11.01, 11.03, 14.01-2, 21.09-2, 22.05-2 of the Casey Planning Scheme.