Definitions

In this Division -

"specified body" means -

(a) a Minister; or

(b) the responsible authority; or

(c) a public authority; or

(d) a municipal council; or

(e) a referral authority;

"specified person" means in relation to a matter -

(a) the owner, user or developer of the land directly affected by the matter; or

(b) a specified body; or

(c) if the matter affects Crown land, the occupier of the Crown land.

1. The reference to 'this Division' above means Division 5 of Part 6 of the PE Act.

1. As set out earlier, the Officer UDF was approved by the VPA and by council on 14 February 2024 and 19 February 2024 respectively. The approval arises under cl 2.5 of the UGZ4 which states as relevant:

Urban Design Framework

Except with the consent of the responsible authority and the Victorian Planning Authority, a permit must not be granted to use or subdivide land, or construct a building and carry out works until an urban design framework for the area has been prepared to the satisfaction of the responsible authority and the Victorian Planning Authority.

An urban design framework approved under this schedule must be generally in accordance with the incorporated Officer Precinct Structure Plan.

An application for use and/or development on land identified must be consistent with any urban design framework approved under this schedule.

A permit may be granted to subdivide land or to construct a building or construct and carry out works prior to the approval of an urban design framework if, in the opinion of the responsible authority and the Victorian Planning Authority, the permit is consistent with the requirements for the urban design framework and the permit implements the objectives in the incorporated Officer Precinct Structure Plan.

The responsible authority may allow an urban design framework to be prepared in stages.

The urban design framework may be amended to the satisfaction of the responsible authority and the Victorian Planning Authority

1. The applicant owns several parcels of land within the PSP area. The following is the applicant's land holding:

1. The applicant says that its application seeks to review the decisions of the VPA and council to approve the Officer UDF. The decisions have 'legal effect' and are thus, decisions capable of review.
2. In summary, the applicant submits:
   1. it is a specified person for the purposes of s 149 of the PE Act as defined in s 148 because it owns land;
   2. council is a specified body under s 148(c) of the PE Act;
   3. the VPA is a specified body under s 148(b) of the PE Act;
   4. the decision of each of the VPA and council to adopt the Officer UDF is a relevant 'decision' because they were made under the UGZ4 and;
      1. an urban design framework approved under that schedule must be generally in accordance with the incorporated Officer PSP; and
      2. an application for use and/or development on land identified must be consistent with any urban design framework approved under the UGZ4.
   5. the outcome sought by the applicant that is, to amend the Officer UDF is contemplated by s 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') because it enables VCAT to either vary the decision to include changes to the Officer UDF or set aside the decision and substitute a new Officer UDF;
   6. Alternatively, VCAT has powers under s 124 of the VCAT Act to declare that the Officer UDF is inconsistent with the approved PSP; and
   7. the fact that the Officer UDF is a strategic document does not affect VCAT's jurisdiction because:
      1. nothing in the PE Act or s 149 confines the right of review by reference to whether the document is strategic or statutory;
      2. if it was the intention that a decision to approve the Officer UDF was not a decision capable of review, then it would not have required it to be the satisfaction of particular bodies; and
      3. it is 'contestable' that the Officer UDF is more of strategic document then for example, a development plan.
3. The applicant relies upon the decision in Parklea Berwick Pty Ltd v Casey CC[1] (Parklea Berwick) to support its position in this preliminary hearing. At paragraph 37 and following, VCAT said:
   1. The applicant (and council) asks that we vary the decision of council made on 16 May 2023 to approve the Manuka Road Development Plan by reference to either October Draft[2] or November Draft.[3]
   2. In consideration of our jurisdiction, we now turn to s 149(1)(a) of the PE Act. The council has:
      • made a 'decision' in relation to a 'matter';
      • the 'decision' is to approve the Manuka Road Development Plan;
      • the 'matter' is the Manuka Road Development Plan;
      • the Manuka Road Development Plan must done (or prepared) to council's satisfaction; and
      • the council was satisfied of the Manuka Road Development Plan and approved it on 16 May 2023.
   3. For completeness, we accept that council is a 'responsible authority' for the Casey Planning Scheme and thus, a 'specified body' under s 148 of the PE Act. Further, the applicant is a 'specified person' being a developer of the Land affected by the matter (Manuka Road Development Plan) also under s 148 of the PE Act.
   4. On that basis, the answer to the following question of law is: Yes:

Does the Tribunal have jurisdiction to consider the application under Section 149(1)(a) of the Planning and Environment Act 1987 (Vic) where a responsible authority has expressed satisfaction with a Development Plan?

1. Council also highlights the applicant is a specified person and that it, and the VPA are specified bodies by virtue of s 148 of the PE Act.
2. Council highlights that cl 2.5 of the UGZ4 contains the phrase 'Except with the consent of the responsible authority and the Victorian Planning Authority, a permit must not be granted to use or subdivide land, or construct a building and carry out works until an urban design framework for the area has been prepared to the satisfaction of the responsible authority and the Victorian Planning Authority.'
3. Council accepts that the UGZ4 does not expressly require council to prepare a UDF however, the cl 2.5 of the UGZ4 specifically empowers council to state whether it is satisfied with the UDF.
4. Council's officer report recognises the 'statutory role' of the UDF and notes:

1. Council also relies on the decisions in Parklea Berwick and Jocelyn Meadows Pty Ltd v Casey CC[4] (Jocelyn Meadows). Council acknowledges that in Parklea Berwick and Jocelyn Meadows VCAT was considering a development plan but says the UDF must be to council's satisfaction.
2. Using the formulation in Parklea Berwick, council submits:
   1. council has made a 'decision' in relation to a 'matter';
   2. the 'decision' is to approve and endorse the UDF, which occurred at a Council meeting of 19 February 2024;
   3. the 'matter' is the UDF;
   4. the UDF must be prepared to council's (and the VPA's) satisfaction;
   5. council was satisfied of the UDF and approved it on 19 February 2024; and
   6. accordingly, the application is correctly made under s 149(1)(a) of the PE Act.
3. Council further highlights that once VCAT's jurisdiction is invoked the scope of the review is guided by s 84B of the PE Act and s 51(2) of the VCAT Act.

1. In its written submission, the VPA simply says the application has been made under the correct provision of the PE Act because:
   1. the applicant is a specified person being the owner of land;
   2. it and council are a specified body; and
   3. under cl 2.5 of the UGZ4 a decision of the VPA is a relevant 'decision' for the purposes of s 149(1)(a) of the PE Act.

1. The land is within the UGZ whose purposes include:

...

To manage the transition of non-urban land into urban land in accordance with a precinct structure plan.

To provide for a range of uses and the development of land generally in accordance with a precinct structure plan.

To contain urban use and development to areas identified for urban development in a precinct structure plan.

To provide for the continued non-urban use of the land until urban development in accordance with a precinct structure plan occurs.

To ensure that, before a precinct structure plan is applied, the use and development of land does not prejudice the future urban use and development of the land.

1. Various parts of the UGZ then apply depending on whether there is a PSP for land.
2. In this proceeding given the existence of a PSP,[5] Part B of the UGZ applies contained from cl 37.07-9 of the Cardinia Planning Scheme ('scheme') onwards.
3. With respect to use of land, cl 37.07-9 states:

Use of land

Any requirement in the Table of uses and any requirement specified in the schedule to this zone must be met.

A permit granted must be generally in accordance with the precinct structure plan applying to the land.

1. Clause 37.07-9 deals with buildings and works and states (inter alia):

...

If the schedule to this zone specifies that a permit is required to construct a building or construct or carry out works, a permit granted must:

• Be generally in accordance with the precinct structure plan applying to the land.
• Include any conditions or requirements specified in the schedule to this zone or the precinct structure plan.

1. Schedule 4 of the UGZ contains the Officer PSP September 2011 (amended November 2019) - Officer Town Centre. As extracted earlier, cl 2.5 of the UGZ4 prohibits the issue of a permit for the use, subdivision or for buildings and works until an urban design framework for the area has been prepared to the satisfaction of council and the VPA.[6]
2. Notably, the Officer UDF must be generally in accordance with the incorporated Officer PSP and can be amended if it is to the satisfaction of council and the VPA.
3. There is no debate amongst the parties that the applicant is a specified person because it is the owner of land directly affected by the matter. I agree the applicant is a specified person for the purposes of ss 148 and 149 of the PE Act because it is the owner of land within the PSP area and the Officer UDF.
4. There is no doubt that council is a specified body because it is the responsible authority under the PE Act.
5. However, is the VPA a public authority for the purposes of s 148 of the PE Act?
6. Section 3 of PE Act defines a 'public authority' to mean:

a body established for a public purpose by or under any Act but does not include a municipal council;

1. I note that 'public purpose' is defined at s 3 of the PE Act to include:

any purpose for which land may be compulsorily acquired under any Act to which the Land Acquisition and Compensation Act 1986 applies;

1. Section 3 of the PE act also defines the VPA to mean:

The Victorian Planning Authority established under section 4 of the Victorian Planning Authority Act 2017;

1. The purposes of the Victorian Planning Authority Act 2017 (Vic) ('VPA Act') are at s 1 that provides:

Purposes

The main purposes of this Act are -

(a) to establish the Victorian Planning Authority; and

(b) to amend the Planning and Environment Act 1987 to abolish the Growth Areas Authority; and

(c) to make consequential and other amendments to other Acts.

1. The VPA is established under s 4 and the functions and powers are at ss 8 and 9 of the VPA Act respectively. These provide:

(1) For the purposes of achieving its objects, the Authority has the following functions - > > > (a) to provide the Minister with advice and assistance in relation to planning the use, development and protection of land in Victoria; > > > > (b) subject to subsection (3), to provide Councils and public sector bodies with advice and assistance in relation to planning the use, development and protection of land in Victoria; > > > > (c) to perform any other functions conferred on it under this Act, the Planning and Environment Act 1987 or any other enactment. > > (2) The Authority also has the following functions in relation to designated areas for the purposes of achieving its objects - > > > (a) to undertake integrated land use and infrastructure planning in those areas; > > > > (b) to coordinate State Government action in relation to planning the use, development and protection of land in those areas. > > (3) The Authority must not give advice or provide assistance under subsection (1)(b) unless the Minister, or a person authorised by the Minister, has approved the giving of advice or the provision of assistance in a specified case or class of cases.

(1) The Authority has power to do all things that are necessary or convenient to be done for or in connection with the achievement of its objects and the performance of its functions. > > (2) Without limiting subsection (1), the Authority may - > > > (a) enter into any agreements, contracts or arrangements in connection with its objects, functions or powers; and > > > > (b) exercise the powers conferred on the Authority by this Act or any other enactment.

2. The Minister for Planning has authorised the VPA to be the planning authority to prepare amendments for Melbourne's growth areas under s 9 of the PE Act which provides:

1. Authorised Ministers and authorities are planning authorities

(1) The Minister may authorise any other Minister or public authority to prepare an amendment to any part of the State standard provisions and local provisions of a planning scheme. > > (2) An authorisation must be in writing. > > (3) The Minister may authorise the preparation of an amendment subject to any conditions the Minister wishes to impose, including conditions relating to the giving of notice of the amendment. > > (4) A Minister or public authority that is authorised under this section to prepare an amendment to a planning scheme is a planning authority under this Act.

1. In light of the above information, I am satisfied the VPA is a public authority for the purposes of ss 148 and 149 of the PE Act.
2. For completeness, I find there are two matters to which s 149 of the PE Act may apply contained within cl 2.5 of UGZ4 as highlighted below:

Urban Design Framework

Except with the consent of the responsible authority and the Victorian Planning Authority, a permit must not be granted to use or subdivide land, or construct a building and carry out works until an urban design framework for the area has been prepared to the satisfaction of the responsible authority and the Victorian Planning Authority.

1. The first matter does not arise on the facts before me. I accept that the second matter being the preparation of a UDF to the satisfaction of council and the VPA is a decision that is capable of review under s 149(1)(a) of the PE Act. I also note that s 6 of the PE Act provides:

(1) A planning scheme for an area - > > > (a) ... > > (2) Without limiting subsection (1), a planning scheme may - > > > (a) ... > > > > (h) require specified things to be done to the satisfaction of the responsible authority, a Minister, public authority, municipal council or referral authority;

2. I find that the decision of the VPA and the decision of council to be satisfied with the Officer UDF are separate decisions each capable of review under s 149(1)(a) of the PE Act.
3. The remedy sought by the applicant is ultimately a matter for it. However, in Parklea Berwick, VCAT raised concerns with the substitution of a decision rather than the variation or amendment of the relevant document having regard to the reasons of the Supreme Court of Victoria in Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd. [7]
4. I also note that an application under s149 of the PE Act is often colloquially referred to as merits review of a decision. Caution needs to be exercised in proceedings under s 149 of the PE Act because it is the state of satisfaction that is the subject of the review, it is not a review of the planning merits.
5. Having regard to the information before me I agree that:
   1. the applicant is a specified person because it is the owner of land within the PSP area and the Officer UDF area;
   2. council and the VPA are specified bodies;
   3. the satisfaction with the Officer UDF is a 'matter' for the purposes of s 149(1)(a) of the PE Act;
   4. council has made a 'decision' in relation to its satisfaction with the Officer UDF ('the matter');
   5. the 'decision' was to approve and endorse the Officer UDF, which occurred at a Council meeting of 19 February 2024;
   6. the VPA has made a decision in relation to its satisfaction with the Officer UDF ('the matter') and
   7. the decision of the VPA on 14 February 2024 was to approve or be satisfied with the Officer UDF.
6. Accordingly, the application is correctly made under s 149(1)(a) of the PE Act.

[1] [2024] VCAT 287.

[4] [2004] VCAT 2627.

[5] The Officer Precinct Structure Plan, September 2011 (Amended November 2019) - Officer Town Centre (UGZ4),

[6] There is an exception to this prohibition, that is if council and the VPA provide their consent.

[7] [2023] VSC 353.