1. The application giving rise to this application to review the failure of the responsible authority to grant a permit within the prescribed time (proceeding P1262/2009) is amended by consent to substitute the book of plans marked as Exhibit G1 for the original application plans.
2. These applications for review are refused, no permit is granted and the amendment sought to the development plan under the Development Plan Overlay is not granted at this stage.

Mr David Vorchheimer, solicitor of the firm of Russell Kennedy solicitors, appeared for the responsible authority. He presented written and oral submissions.

Mr Jeremy Gobbo, QC and barrister appeared with Ms Emily Porter, barrister, on the instructions of their client for the applicant company. They presented written and oral submissions and called several expert witnesses who gave oral evidence and adopted written reports. These witnesses were Jamie Andrew Govenlock, town planner; Henry Hume Turnbull, traffic engineer; Benjamin Warren de Waard, environmental sustainability management consultant; Maxine Ashley Cooper, social planner and Matthew Ellis McFall, landscape architect.

The above were the appearances for parties in these proceedings but Mr Giles Michaux, engineer of the Roads Corporation (which trades as VicRoads), Metropolitan Southeast Region, appeared and presented a written submission as did Ms Suzane Becker, town planner of the Growth Areas Authority.

We have inspected the land and locality and also two retirement villages mentioned for comparison purposes in the course of the hearing, namely the Richfield Retirement Village, Wells Road, Aspendale Gardens and the Cumberland View Retirement Village, Whalley Drive, Wheelers Hill.

Application under s 149 of the Planning and Environment Act 1987 for review of the failure or refusal of the responsible authority to approve amendments to the Berwick South Development Plan.

Application under s 79 of the Planning and Environment Act 1987 for review of the failure of the responsible authority to grant a permit within the prescribed period.

Approval of amendments to the Berwick South Development Plan.

Substantially in a Residential 1 Zone but partly in a Low Density Residential Zone and subject to a Development Plan Overlay, Schedule 1, and a Development Contributions Plan Overlay, Schedule 8, under the Casey Planning Scheme.

At the commencement of the hearing, Mr Gobbo sought and obtained by consent, an amendment to the application plans in relation to the review of the failure of the responsible authority to grant a permit by substituting a revised book of plans marked as Exhibit G1 in place of the original application plans.

1. These cases are in relation to a proposal to construct a substantial retirement village on this substantial area of land. Planning permission is required. That is the reason for the permit application giving rise to one of the proceedings before us namely the application for review under s 79 of the Planning and Environment Act 1987 (PE Act). The review is because the responsible authority failed to determine the matter within the prescribed time but it has subsequently decided that it would refuse the proposal on grounds that will appear below. The real question for determination is whether, on the planning merits, planning permission ought to be given for the proposed retirement village in the form depicted in the plans marked at the hearing as Exhibit G1 which plans were substituted for those accompanying the original permit application.
2. The issue is not whether there can or should be a retirement village on the review site. It was conceded on behalf of the responsible authority that the site is a suitable one for a retirement village. The issue is as to whether this particular form of development for a retirement village is appropriate. We might add that we agree that this site is a suitable one for a retirement village.
3. The second proceeding before us is a review of the refusal or failure of the responsible authority to approve amendments to the Berwick South Development Plan. That development plan applies to the land and to a considerable tract of other land in the locality.
4. The land is subject to a Development Plan Overlay, and to schedule 1 of the overlay in the Casey Planning Scheme. It is pursuant to the overlay provisions that the Berwick South Development Plan has been approved. Under the overlay, permits like the one now being sought cannot be granted until there is such an approved plan, and then any permit granted must be generally in accordance with the development plan. Such a permit must also include any conditions or requirements specified in the schedule to the overlay. The schedule, so far as relevant for present purposes, imposes three requirements that such a development plan should show which are:

These are the particular concerns and purposes for this overlay as distinct from the general purposes applicable to all development plan overlays. (The general purposes include the identification of areas that 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).

1. Clause 43.04-2 of the planning scheme, amongst the development plan overlay provisions, contains an exemption from giving third party[1] notice and third party review rights. This accords with the situation where the only parties to the permit application are the applicant company and the responsible authority.
2. The second proceeding before us is a review under s 149 PE Act relating to the failure or refusal to approve amendments to the development plan. It is really secondary to the prime issues under the review of the failure to grant a permit. The proposed amendment to the development plan has only been put forward because of a suggestion, on behalf of the responsible authority, that the proposed development of the retirement village is not in general accordance with the existing development plan in its current form.
3. The company disagrees with this contention made by the responsible authority. It is the view of the company that the current proposal is in general accordance with the existing development plan. If the proposal does not generally accord with the development plan, the proposed amendment to the development plan is so that the proposal will then accord with the plan in its amended form.
4. In these circumstances, the company does not pursue this second application for review if we agree with it that its proposal does generally accord with the existing development plan. Furthermore, if we do not uphold the permit review, and decline to grant a permit, there will not be any particular point in pursuing the review of the failure or refusal to approve amendments to the development plan. If we refuse the current proposal, it is probably quite likely that a revised proposal will be put forward. In that event, it will need to accord with the existing development plan. If it does not, the revised proposal will fail unless the development plan is amended to suit the revised proposal. However, if the revised proposal requires an amendment to the development plan, that amendment should be considered in relation to the contents of the revised proposal. It may or may not be the case that the amendment for the development plan that is currently proposed would suit the revised proposal.

Retirement Village Land used to provide permanent accommodation for retired people or the aged and may include communal recreational and medical facilities for residents of the village.

1. The responsible authority resolved, at the meeting of the council of the City of Casey on 23 June 2009, that it would refuse the application on the following grounds:

1. the proposed development is generally not in accordance with the approved Development Plan - Berwick South; 2. the proposed development does not accord with the objectives and strategies of clause 21.09 (Buildings New Communities);

1. the proposed development represents a poor amenity outcome for adjoining residential properties and future residents of the land;

1. the proposed development does not contribute positively to an existing or preferred character in the area; 2. the proposed development will not result in a net community benefit; and 3. the proposed development does not equitably contribute towards public open space or infrastructure needs in the area.
2. In relation to the review under s 149 the council, at the same meeting, resolved it would not support the request to amend the Berwick South Development Plan. Its grounds were that exceptional circumstances had not been proven, nor had net community benefit.
3. Clause 43.04-3 in the Development Plan Overlay provisions refers to the preparation of a development plan. Such a plan can consist of plans and other documents and must describe the land to which the plan applies, the proposed use or development of each part of the land, and any other requirements specified in the schedule. We have already referred to the requirements of the schedule. The clause also provides that the development plan may be amended to the satisfaction of the responsible authority. Of course, a plan or an amendment to a plan should be appropriate on its planning merits but we do not see anything in the overlay provisions or in schedule 1 that require exceptional circumstances to be proved or net community benefit (as distinct from other aspects of planning merit) to be proved before a responsible authority can be satisfied with an amendment to a plan. The responsible authority appears to have asked itself the wrong questions in relation to its determination of the application for amendment to the development plan.

1. The site is a substantial triangle of land having an area of 20.47 hectares. It is located at the intersection of Grices Road with Soldiers Road. Grices Road runs east to west. Soldiers Road, south of Grices Road, runs north and south, but at its intersection with Grices Road deviates to form an acute angle and to run to the northwest from the intersection.
2. The triangle is a right angle triangle and the hypotenuse runs from the acute point of the triangle at the Grices Road intersection northwest along Soldiers Road. The road along that frontage is sealed but without kerb, channel or sealed shoulders. The Soldiers Road frontage amounts to 906.55 metres.
3. The east west base of the triangle, along the northern side of Grices Road, has a total length of 697.95 metres save for the land known as 118[2] Grices Road. Subdivision PS532187M excised that site from the original triangle. It is the site of a very substantial existing modern house. Its site is rectangular with a frontage of 112.76 metres to the north side of Grices Road, a depth of 84.25 metres and an area of 9,901m. It is located a little to the east of the centre of the Grices Road frontage. It is also on the crown of a hill which falls to the north, northeast and east towards Soldiers Road. The land also falls to the west and northwest although there is a lesser high point located approximately half way along the western side boundary of the land. Grices Road, where the review site fronts it, is a formed carriageway but it is unsealed.
4. The third boundary of the triangle is its western side. It forms a right angle to Grices Road and runs from it north 615.49 metres (or thereabouts) to intersect with the southwestern side of Soldiers Road.
5. The land was previously used as an apple orchard, but the trees have now been pulled and there are mounds of earth dotted about on the land. The form of the land is gently rolling rather than a steady fall in the directions previously indicated.
6. The land on the western side of the western boundary of the triangle is the location of the so called "Chase" estate. It is a substantial and developing residential subdivision of in excess of 1,200 residential lots. Many of the lots have now been built on and are occupied. It displays a variety of housing styles which, apart from being new, demonstrate no particular consistency. The area of the estate is bounded by Grices Road to the south and Soldiers Road, beyond the review site and Chase Boulevard to the north.

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

To provide a range of uses and the development of land 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 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. Although currently rural, the Urban Growth Zone land surrounding the review site is at the frontier between urban and rural uses, is within the urban growth boundary and is intended to be subject to transition in the years ahead from rural to urban use and development. It follows that the current character of these areas is not so relevant, from a neighbourhood character point of view, in that it is all intended to change. Such a change has already taken place in relation to the Chase estate, but otherwise the future nature of the surrounding areas cannot be ascertained at this stage with any degree of certainty. That said, it is indicated that there is intended to ultimately be a large neighbourhood centre on the Urban Growth Zone land to the northeast of the intersection of Grices Road with Soldiers Road to be partly surrounded with something described as an employment opportunity area.
2. We note that there is a Draft Precinct Structure Plan (known as the Clyde North Precinct Structure Plan). It applies to land south of Grices Road. It contemplates, in some form, the widening and upgrading of Grices Road, although it contemplates any widening of that road being on the south side of it, not on the north side where it may have an impact on the review site. However, other plans were produced that showed contemplation of some or all of the widening to go to the north side.

1. The proposal as depicted in the G1 plans is for a retirement village of 425 units. There is proposed to be a substantial building to contain a community centre with a variety of indoor and outdoor recreational and communal facilities. These include sporting facilities, eating facilities and others. This would be a very substantial building because, in addition to those facilities and administrative facilities such as reception, offices and the like, the building would contain 49 dwelling units of an apartment style. The building would appear, from some aspects, to be three or four storeys in height. It is also a building of substantial proportions in its ground cover. It would certainly be substantial in its height and bulk, particularly in relation to single storey units proposed for its vicinity, and on its downhill aspects. The proposal is for a building laid out, arranged and articulated so as to reduce or minimise its perception of size and bulk. It has the scale of a medium sized hospital, even if its articulation and design attempts to reduce the impact of its size and bulk. By being set into the hill, below the existing house on the excision, and by taking advantage of features of the topography, the impact is further modified. Nevertheless, this building would still be a significant one with a significant impact from some points of view and some parts of the rest of the site.
2. An elongated lake or water feature is planned adjacent to the building, and separated from it by a driveway. Vehicle access to the site would be from two substantial crossings with two major driveways. One enters across the northern frontage to Grices Road near the western end of that frontage. As such, this entry is a short distance to the east of the eastern end of the Chase estate.
3. The other main entry is approximately half way along the frontage to Soldiers Road.
4. The most direct vehicle route between the two entries would be via the driveway planned to be between the community building and the central water feature. However, at each end of that separating driveway, there would be a significant roundabout and a loop driveway would run off in two directions from each of the roundabouts to give access throughout the site whilst linking around to the other roundabout.
5. A large number of straight cul de sac driveways run off generally in parallel straight lines from the central loop driveway. The dwelling units, apart from those in the community centre building, are arranged along these straight tributary driveways. In relation to those pointing out towards Grices Road and Soldiers Road, every second cul de sac has a pedestrian linkage through to those respective roads.

1. Claims were made on behalf of the applicant company that it is experienced in building and conducting retirement villages and that its existing Richfield Retirement Village in Wells Road, Aspendale Gardens was referred to and we were invited to inspect it. It was said to be "state of the art" and that this proposal would similarly be "state of the art". We have inspected the Richfield Village.
2. In some ways it is similar to the current proposal, in some ways it is superior and in some ways inferior to what is before us in the present cases. Richfield is a smaller village with a smaller number of dwellings units, although still a reasonably substantial village. It also has a local water feature. It is new, and although it is substantially occupied, some parts of it are still under construction.
3. It has a main entry off Wells Road leading to a circular driveway around the lake and community centre building, as well as some of the units. Apart from the single storey units within and beyond the ring road driveway, a number of units are also contained in the community centre building. Again, this is a quite substantial building rising to three levels but designed in wings so as to reduce the perception of height and bulk. It is nevertheless a very significant feature in its immediate locality, which includes the lake and recreational areas as well as proximate dwelling units.
4. A number of subsidiary driveways run off the central ring road. Although some of these are dead ends, a number of them are loops and even with the dead ends, there has been some attempt to provide some curvature of alignment.
5. Richfield has a poor presentation to Wells Road with high fences and units that back onto Wells Road, although separated by a landscaping setback. The main driveway from the Wells Road crossing to the main ring road is quite poor in that the dwellings on either side back to it and it is lined on either side by a high blank timber fence, although colouration is a deep red.
6. The streetscapes along the driveways are not of particularly high amenity. Grey colour schemes seem to predominate along with garage doors, often double garage doors and large areas of pale cream paving. Perhaps it is a pity that a green, brown or some more muted tone was not chosen.
7. An aspect of Richfield that does appear to us to be superior to the current proposal, is the greater attempt that has been made to provide looped and curving driveways so as to avoid a perception of regimented straight lines that predominate in the design of the Berwick site.

1. It was said, on behalf of the responsible authority, that the proposal before us, like the Richfield site, is intended to be a "gated" community. The implication was that this would be a bad thing.
2. It is true that there would be lockable gates on the driveways and, in relation to the case before us, in relation to the pedestrian links to Grices Road and Soldiers Road. It is proposed that these gates would be locked at 7 pm during Eastern Australian Standard Time and at 9 pm when Eastern Australian Summer Time or daylight saving time applies. Residents, staff, visitors and others could still get into the site, but visitors would need to be let in by staff or residents.
3. It is said that security is a very high priority for people living in retirement villages and that this is the reason for the fencing and night time locking of gates.
4. We do not think that this is what is meant by a "gated community". We take a gated community to be one where the gates are locked day and night, where staff and residents can gain access but where others will need the assistance of staff or residents to gain access, day or night. Perhaps Richfield and the current proposal might be semi-gated, or even demi-semi gated.
5. At any event, some retirement villages are fenced and gated with gates closed at night whilst others are neither fenced nor gated. The Cumberland View Village at Wheelers Hill, referred to in the course of the hearing, is an example of a longstanding, successful retirement village that has neither fences nor gates.
6. That does not mean that we would prevent fencing and gating at nighttime as a matter of principle. Nevertheless, a suitable style and design of fencing, particularly in relation to frontages to the public realm such as Grices Road and Soldiers Road, can be an important consideration. The proposed fencing in the current case is superior to what we observed along Wells Road.

1. The current proposal is designed to be developed in stages. None of the stages, not even the last ones, and none of the space, is planned to provide for intermediate or hostel standard accommodation, or for nursing home accommodation on the site.
2. Retirement villages provide a style of accommodation for retirees and persons over the age of 55. They provide some facilities and services that people wanting to live in such places are unwilling or unable to provide for themselves. These include the enhanced security of living in a community where, at least nursing assistance is available and help can be called for if needed 24 hours a day. Nevertheless, people are frequently capable of, and do lead fairly independent lives. Some may receive meals on wheels, like elderly people living elsewhere, but others do for themselves, in terms of food, housekeeping and the like. Nevertheless, retirement villages are places where people come to live later in life and in which they have to expect they will grow older and perhaps frailer. Some people move into them after being widowed, whereas others come in when more vigorous, and when they move in as couples. As time goes by, such people, or one or other or both of them in the case of couples, can come to a stage where they need enhanced support such as is provided by the intermediate or hostel standard of accommodation. These are places where meals are provided, people generally live in their sitting rooms with their own facilities but have meals in a communal dining room and where enhanced care and assistance with medications is available.
3. Nursing homes are a yet higher standard of care where considerably greater support is provided.
4. There are small retirement villages where it is not practical to provide all the communal facilities contemplated in the current proposal, and where there is no space for hostel or nursing home accommodation. It is difficult to find sufficiently large sites in inner and middle ring suburbs to accommodate retirement villages on such a scale. Such smaller facilities nevertheless provide useful facilities. It is a significant social concern where people have to leave the localities in which they have lived and established relationships to find retirement village, hostel or nursing home facilities.
5. In the case before us, social planning evidence was advanced and considerable emphasis was placed on security considerations. We are surprised to find a proposal on so substantial a site as this one that makes no future provision for, and does not even contemplate the need to provide intermediate and nursing home accommodation on campus. Such provision is, and has been found by experienced operators to be important from a social and security point of view.

1. We appreciate that an applicant has an interest in maximising a proposal. Indeed, it is good planning not to underdevelop a site, just as it is good planning not to overdevelop it. There is an optimum, or at least an optimum range that balances utilisation against waste and a full use of opportunities against the detrimental results of overdoing it.
2. In the current proposal, most of the units have double garages with parking opportunities on the driveway leading to the garages and with secluded private open space areas in addition to communal open space. Not all retirement villages have those facilities, or have them to the extent proposed here. Where private open space is provided, its usefulness and useability should not be assessed on the basis of what would be appropriate for a conventional separate dwelling that is not part of a retirement village but is subject to the requirements and guidance of the Rescode provisions such as cl 55 of the planning scheme. Retirement villages are not intended to accommodate families and they do provide, to a greater or lesser extent, communal facilities for various social and recreational purposes, including communal open space. A village that did not provide private open space might require more communal open space and vice versa. There is a balance to be struck.
3. We are aware that there are greater and lesser areas of communal open space provided for in the G1 plans. We are also aware that, because the area of the site is so large, the plans have been drawn at a scale which make the communal open space areas appear rather small and inconspicuous. We have sought to allow for this circumstance in making our assessment.
4. We have nevertheless come to the conclusion that this proposal is too intense and, with its straight cul de sacs and number of units in the large building and spread over the balance of the site, gives a result of unduly diminished amenity, a feeling of overdevelopment and regimented lines of buildings. We assume that the arrangements in ranks along the straight cul de sacs enables the inclusion of more units. Looping and curving drives might be an improvement, although we do not necessarily implacably set our faces against some or even numerous straight drives, whether cul de sac or otherwise, if the overall affect is not too intense.
5. The intense nature of the development is demonstrated in part by the restricted opportunities for substantial and meaningful landscaping throughout the greater part of the site - specifically within the cul de sacs onto which the majority of the units front.

1. In the course of the hearing, many issues, large and small, were raised. In view of our conclusion referred to above, we do not need to deal with all of them. We have already discussed most of the significant other issues.
2. We do not uphold the arguments of the responsible authority in relation to integration. It being common ground that the site is suitable for a retirement village, a proposition with which we agree, we do not think it necessary or desirable that the internal driveways should link onto the eastern ends of Wurundjeri Boulevard or Fernwren Drive or that connections from the ends of those streets on the neighbouring subdivision should provide vehicle access through the village to Soldiers Road or Grice Road.
3. As we have already said, the notion of integration by making the frontage to Grice Road match the existing frontages along the northern side of Grice Road in relation to the neighbouring subdivision is also misconceived. We do not think it necessary to prohibit boundary fencing providing it is of a suitable design. The presentation of the sides of dwellings to the public realm constituted by the roads is not as bad as backing onto such roads but is nevertheless an inferior result unless some more attention is paid to how those sides will be presented.

1. It was submitted that the proposal should not be allowed to proceed, as contrary to orderly planning, on the basis that it is not yet finally decided as to whether the widening required for Grices Road will require the acquisition of land on the south side of the existing road, or its north side, or some from each side. Insofar as there is any planning in this respect, it is an exaggeration to describe it as embryonic. It is not clear which embryos are to proceed or what form they should take. There is nothing yet in the shape of a seriously entertained planning proposal which should be given weight in relation to orderly planning. Indeed, the applicant company was apparently not aware, until the first day of the hearing, that it would be confronted with any submission in relation to acquisition of part of its land along that southern edge for road widening purposes. When it had previously sought information of that sort, it claims that it was advised that thinking had not reached the stage where it could be made known, even to land owners or people proposing development applications. There is nothing that has been put on exhibition and really nothing that is definite in terms of form or timing. There is no public acquisition overlay, either interim or permanent, or proposal to introduce such a control. We have not been requested to refuse this proposal on the basis that the land or some of it is or will be required for a public purpose. In the absence of any one asking us to do that, we would not proceed in that direction. Our decision to refuse this proposal is not related to those matters.

1. In view of our decision and the reasons for it, it is not necessary for us to make a final decision in relation to the view under s 149 PE Act or to give fully considered reasons in relation thereto. We do not propose to grant that review at this stage on the basis previously discussed, but an amendment to the development plan will only be necessary if a subsequent proposal is brought forward that is inconsistent with, or at least not in general accordance with, the current development plan.
2. The current proposal generally accords with the current development plan where it includes an extension to the park on the adjoining estate.
3. We are not persuaded that the current proposal fails to accord generally with the existing plan on account of the arguments mounted based on the words of the current plan as opposed to its plan drawing. However, we do note that a development plan under the development overlay is supposed to include uses to which land is to be put. Under the current development plan, the triangle is shown as being for residential uses. Retirement village involves a sort residential use. It is a section 2 use (that is lawful subject to the obtaining of a planning permit) in both the Residential 1 Zone and the Low Density Residential Zone that constitute this site. Nevertheless it may be prudent, as indicated on the proposed amended plan, for the development plan to be amended to show retirement village on the triangle, as depicted on the proposed amendment. In view of the concession on behalf of the responsible authority that the site is suitable for a retirement village there should not now be any difficulty in obtaining approval for such an amendment from the responsible authority if that becomes relevant. We, for our part, can see no planning reason why such amendments should not be made.

[1] Third parties here can be taken to mean members of the public who may be objectors.

[2] This property seems to be variously referred to as 108, 118 or 138