Mr Nick Tweedie of Counsel instructed by Norton Rose Solicitors

Mr Tweedie called Mr Greg Wood, Tract Consultants, as an expert witness[1]

Ms Adele Patterson of Counsel by direct brief on behalf of the Growth Areas Authority

1. Phenomenal Properties Pty Ltd seeks a planning permit for the subdivision of the subject land into 45 residential lots and one 'super lot'. By way of background, it purchased the land from an education provider[2] that had intended to use and develop part of the site for a non-government education facility.
2. The residential subdivision application was refused by the responsible authority on the ground that the proposal was not generally in accordance with the relevant Precinct Structure Plan ("the PSP") and therefore, no permit could be granted by virtue of the provisions of the Urban Growth Zone.
3. The permit applicant seeks review of this decision.[3] It submitted that the proposal was generally in accordance with the Precinct Structure Plan on a proper and fulsome reading of this document, supported by relevant background information.
4. In essence, the responsible authority's position was that if the permit applicant was able to overcome this threshold test (i.e. if the proposal was held to be generally in accordance with the PSP), it would not have any concerns about the proposal in terms of its planning merits subject to appropriate permit conditions being imposed.
5. The Growth Areas Authority provided a submission in an attempt to assist the Tribunal.[4]

The subject land, the proposal and framework planning controls

1. The subject land is a generally rectangular shaped block of some 6.16 hectares in area. It is currently used as grazing land with an associated farmhouse.
2. The application proposes to subdivide the land in stages with a balance lot of 2.24 hectares. The balance lot (to the east) would be 'earmarked' for a future Primary School[5] on the Plan of Subdivision. This designation would also extend to land to the immediate south which has been notionally identified on the Plan of Subdivision accordingly.[6]
3. Land to the immediate east would comprise encumbered open space with an area of 4,687 square metres.
4. The subdivision would also include three north-south internal roadways[7] as well as a northern roadway running off City Vista Court.
5. The land is included in the Urban Growth Zone for which relevant objectives[8] 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 development of land in accordance with a precinct structure plan.
6. Clause 37.07-10 provides that a permit may be granted to subdivide land and any requirement of the Schedule must be met. Relevantly, any permit granted must be generally in accordance with the Precinct Structure Plan.
7. Clause 2.2 of Schedule 1 to the UGZ applies the Residential 1 Zone as the 'underlying' zone. Decision guidelines are provided at clause 37.07-14.
8. The Development Contributions Plan Overlay (Schedule 1) also applies to the land in accordance with clause 45.06 of the planning scheme.

The Taylors Hill West Precinct Structure Plan and the evidence

1. The starting point is the strategic planning document itself.[9] It is an Incorporated Document in the planning scheme (since 28 October 2010), as is the related Incorporated Document known as the Taylors Hill West Development Contributions Plan. Both are called into operation in respect of the proposal by the provisions of the Urban Growth Zone and the Development Contributions Plan Overlay.
2. The PSP is intended to guide the conversion of a currently rural area to a residential area with associated services and facilities. It contemplates the designated area (of which the subject land forms a part) as providing for approximately 2,400 additional households. Its stated role is at page 3which includes:
   • [setting] the vision for how land should be developed and the desired outcomes to be achieved.
   • [outlining] projects required to ensure that future residents, visitors and workers within the area can be provided with timely access to services and transport necessary to support a quality, affordable lifestyle.
   • [Providing] developers, investors and local communities with certainty about future development.
3. The future Urban Structure Plan forms Plan 5 of the PSP and is essentially replicated in Schedule 1 to the Urban Growth Zone. It identifies proposed uses of both the subject land and the property to the south as State Primary School (Prep to Year 9) for the western portion, and as Non-Government Education Facility "(subject to permit)" for the eastern portion of both land parcels.
4. Land to the immediate south is identified for unencumbered active open space, with a proposed community facilities hub to the south west.
5. Aside from a few 'pocket parks' and other areas of open space, the remainder of the mapped area is identified for future residential development.
6. There are a number of correlating written provisions of the PSP and DCP that are relevant to the issue at hand and I have had regard to these primary documents with the benefit of detailed submissions from all parties.
7. More specific objectives for community infrastructure are set out in section 5.4, one of which is to "provide good connectivity between the community hub and the education precinct in Taylors Hill". Specific guidelines are provided in respect of the "two schools".
8. One of the references to the non-government education facility is in the DCP land table which identifies 2.75 hectares of the subject land for this use, with 2.56 on the adjoining land.[10]
9. The debate in this proceeding centred around whether the replacement of the identified "Non-Government Education Facility (subject to permit)" on the subject land with a conventional residential subdivision would be generally in accordance with the PSP.
10. Mr Wood's evidence can be conveniently summarised as follows[11]:

I do not believe it is the intention of the PSP to specify only one possible use and development of the subject site, particularly where the underlying zone allows flexibility subject to permit. While the subject site is identified in the PSP as an appropriate location for a "non-government education facility" (subject to permit) I do not consider that this is intended to prevent another equally or more appropriate development of the land, such as for a residential subdivision. The use in the plan of the phrase "subject to permit", in my view is intended to introduce an element of discretion and flexibility. This is especially so when there is no other text or description of how such a development should or could be provided or treated.

My involvement with the preparation of the PSP leads me to conclude that it was not intended that the PSP would operate as a form of prohibition of otherwise appropriate land uses. Rather, it would identify opportunities, while not excluding other suitable forms of use and development.

In particular, I understand that it was never intended that the subject land would be sterilised from residential use and preserved only for the use and development of a Non-Government Education Facility.

1. Much of the latter part of Mr Wood's evidence focuses on whether it would be a reasonable strategic planning outcome to permit a residential subdivision of the land in place of a potential non-government education facility.
2. This line of evidence may be useful if an amendment was proposed to the PSP in line with the applicant's current intentions. To my mind, is not particularly helpful in guiding my decision making as to whether the application is generally in accordance with the PSP as it stands, which comprises the task before me.

Case law interpretation and application of the PSP to the current proposal

1. The parties summarised key principles emerging from case law including Canet v Brimbank CC[12]. That is, general accordance is a question of fact to be judged on the relevant facts and circumstances. In general, the less detail or precision in the primary documents, the more flexibility can be afforded.
2. There was general agreement about the approach to be taken, although the parties were diametrically opposed as to the appropriate outcome to be reached on the facts.
3. Mr Tweedie on behalf of the permit applicant submitted that "the PSP merely specifies the intended location for a significant anticipated use, without excluding other potential appropriate uses of the land". He emphasised the wording "subject to permit" which is consistently used in connection with the designation of education facility as key qualifying words.
4. While this submission was initially convincing, on reflection, I do not consider that this is the preferable interpretation of the PSP read as a whole.
5. I find that the proposed replacement of part of the land expressly designated in the PSP as a non-government education facility with residential lots could not reasonably be said to be generally in accordance with this PSP.
6. I accept the legitimacy of the original designation of the land for both a government school and a non-government education facility as a starting point.[13] In this regard, the VPP Practice Note relating to Incorporated Documents provides that:

The decision-maker or VCAT is entitled to presume that the strategic basis for the document was considered at the time of its incorporation into the planning scheme and to give it due weight.

1. At the same time, in principle, I accept the notion that PSPs (especially those intended to operate over extended timeframes) should incorporate flexibility in terms of future land use and development where appropriate and to the extent the particular document reasonably allows. The question is whether this particular PSP actually provides the requisite degree of flexibility in respect of the subject land that the permit applicant claims it does.
2. In general, I regard the situation where a particular facility is expressly designated as a key facility on a plan within the PSP and accounted for as part of the overall facilities that will be provided for the relevant area as different from the situation where a community facility is proposed within an area earmarked, say, for general residential development in a PSP.
3. In the former scenario, it tends to be more difficult to satisfy a decision maker that the substitution of the expressly designated facility with general residential development would be generally in accordance with the approved plan. This is especially the case where the plan does not expressly provide for an alternative land use and the facility is not proposed to be relocated elsewhere within the PSP area.
4. In respect of the latter scenario, in Java Sands Pty Ltd & Anor v Frankston CC[14] Deputy President Gibson found that a proposal to locate a commercial child care centre in a residential area on an Outline Development Plan was generally in accordance with the plan provided that there were no specific locations otherwise shown for the location of such facilities [my emphasis].[15] She held that child care centres are part and parcel of residential areas, meeting a community need directly related to residential use.
5. The facts before me involve the former scenario. Namely, the non-government facility has been expressly identified for this particular site as part of what I regard as a detailed PSP supplemented by a DCP. In Mr Tweedie's own words, this facility is a "significant anticipated use" within the PSP. The treatment of this site in the document as a whole descends into a level of detail that is even more specific than for the 'local centre' and 'community facilities' identified in the mapping and dealt with in the written document.
6. I cannot accept the permit applicant's submission that the identification of the non-government education facility in the PSP is undertaken in a purely provisional way.[16] Rather, I regard the qualification 'subject to permit' as used in conjunction with references to the non-government education facility as simply highlighting that additional permission would be required before the use could take effect, by comparison with the government school which would likely have the benefit of an exemption. I accept Mr Montebello's submission on behalf of the responsible authority on this point.[17] It is also reasonable to include the qualification as a highlighted pre-requisite because a private education facility can take on many different forms.[18]
7. In my opinion, the fact that the land has 'applied' Residential 1 zoning is insufficient of itself to overcome the relative prescriptiveness of the treatment of this site in the PSP itself. In a situation where there is less prescription in the PSP, these provisions may become more influential.[19]
8. I accept that Mr Wood has given evidence of his truthful recollection about the processes and discussions that lead to the PSP being formulated and later incorporated into the planning scheme. His observations are also inherently plausible especially in light of the fact that the then-landowner was in the business of developing education facilities.[20]
9. As I see it, the insurmountable hurdle for the permit applicant in this case is that while there may have been an understanding between stakeholders at the time the PSP was drafted that the land could revert to residential use on certain occurrences, in my opinion this was not reflected in the wording or structure of the PSP itself. That is, there was no express 'residential fallback' position provided for by the PSP in the case of the subject land even if this had been intended. [21]
10. Taking a purposive approach, while it may be possible to revert to extraneous documents to assist in an interpretation of the PSP none were ultimately identified by the parties. Even so, I would find it difficult to read in a expanded and consequential meaning into the PSP based on any extraneous documents or supporting evidence that were less than compelling.
11. Mr Wood emphasised that the complementary Development Contributions Plan levied the proposed non-government education facility as if it was residential development[22] but it was not included in the calculation of residential lot yield in the PSP. The proposed public school is not subject to this levy.
12. I am not persuaded that the differential treatment in the DCP in terms of levying the proposed non-government education facility as opposed to the proposed public school would weigh against the broader findings I have reached above. It does not support a general conclusion that the non-government education facility could be readily dispensed with and replaced. Rather, it is a reflection of what was regarded as an appropriate way of accounting for a non-public facility in terms of its monetary contributions.
13. Likewise, I am not persuaded that any complications in identifying a 'land swap' between DEECD and the private education facility provider in the Implementation section (referred to by the GAA) are to be given overriding weight. This is more in the nature of identifying the mechanics involved in making the facilities on the plan operative on the ground having regard to then current landholdings.

1. In this proceeding, my role has not encompassed consideration of the strategic planning merit of substituting residential lots in place of a potential non-government education facility. This is an analysis that should properly be undertaken as part of any proposal to amend the PSP in this manner.
2. One potential alternative may be to consider amending the designation of the relevant part of the subject land, to:

Non-government school[23] to revert to residential

If there is no purchaser or provider for the non-government school at the time of subdivision, the residential designation within the PSP and zone provisions will apply. [24]

Plans 5 and 8 would also be amended to identify the land as:

Non-government school (subject to permit, otherwise residential)

1. It appears likely that the Growth Areas Authority would support this amendment based on its representations to the Tribunal in the current proceeding.[25]
2. Having made the principal finding that the proposal is not generally in accordance with the PSP, I understand that the applicant now intends to approach the Minister for Planning to request amendments to the Incorporated Document/s to facilitate the proposal.[26] To date, the Minister declined to entertain the amendment while the issue was before the Tribunal.
3. I am careful to refrain from making any comments that might unduly influence the Minister's decision. I note, however, that if the PSP was amended, I would not have any inherent concerns with the appropriateness of the proposed residential subdivision in terms of layout or design.
4. A potential advantage of this alternative process (i.e. seeking to amend the relevant aspects of the PSP) is to permit direct consideration of the strategic issue at the heart of this application. That is, whether there is a realistic imperative for part of the land to continue to be set aside for a private education facility or whether the use and development of the land for conventional residential purposes would represent an acceptable alternative land use at this point in time.

1. As the PSP stands in its current form, I am unable to find that a proposal to substitute residential lots in place of a designated education facility would be generally in accordance with this strategic planning document. Therefore, the current application must fail.
2. It is now open to the permit applicant to take steps through other strategic planning processes to amend the PSP if it wishes to progress the application.

[1] Including the giving of evidence about his involvement in the preparation of the PSP.

[3] Under section 77 of the Planning and Environment Act 1987.

[4] although its position lent in favour of the permit applicant.

[5] With the land to be acquired by the DEECD.

[6] Although this is land in different ownership but treated by the PSP in the same way as the subject land.

[7] The proposed road reserve alongside the proposed school site would have a width of 21 metres.

[8] In addition to the implementation of planning policy.

[9] It is dated May 2010 and was amended in August 2011.

[10] Generally similar figures are provided for each of the two lots in respect of the proposed government school.

[11] Extracted from his expert report to the Tribunal at page 2 onwards.

[12] [2003] VCAT 13.

[13] Even though there may be issues about their achievability in practise given the land areas nominated.

[14] [2006] VCAT 2168. I have also had regard to her reasoning in Amber Vision Pty Ltd v Wyndham CC [2007] VCAT 1297

[16] Referred to in oral submission as "a hope, an expectation."

[17] I further accept his explanation as to why the Special Use Zone would not have been an appropriate tool to 'lock in' the schools as suggested by Mr Wood and Mr Tweedie This course is simply not consistent with current approaches to strategic planning.

[18] E.g. a private school, kindergarten, training or higher education facility etc.

[19] Such as in the cases determined by Deputy President Gibson referred to elsewhere in these reasons.

[20] They are also generally consistent with the recorded comments of Council's officer who was involved in the preparation of the PSP at the time, although these are somewhat incomplete.

[21] As distinct from the underlying zone provisions which are of far greater generality.

[22] By comparison, new DCPs are not permitted to levy non-government schools under the current Ministerial Direction of 2 July 2011.

[23] Should technically be education facility, which is a broader land use.

[24] as proposed by the current Section 20(4) amendment (held in abeyance).

[25] This appears likely since it was the authority seeking an amendment to the PSP under section 20(4) of the Planning and Environment Act 1987 to allow what it regarded as a "minor correction to the PSP to include wording that was inadvertently omitted". It also indicated that at the date of the hearing, an alternative provider for the public facility had not been found.