1. Pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998 I declare that:
   • (a) The development applied for in planning permit application No. M/2007/443 for a proposed integrated warehouse development (with ancillary works, accessways and car parking) is not generally in accordance with the approved development plan affecting the subject land under the Development Plan Overlay of the Maroondah Planning Scheme namely, the Canterbury Road and Dorset Road Strategic Industrial Area Development Plan approved by the responsible authority on 6 March 2002.
   • (b) In these circumstances, the operation of clause 43.04-1 of the Maroondah Planning Scheme precludes the grant of a planning permit for the development applied for in planning permit application No. M/2007/443.
2. The matter is adjourned for Administrative Mention on 18 September 2008. By that date, each party must advise the Tribunal in writing:
   • whether the matter is resolved or is proceeding to a hearing;
   • whether a further directions hearing or mention is requested; or
   • whether the application for review will be withdrawn.

1. This application was made by the permit applicant under section 77 of the Planning and Environment Act 1987 seeking review of the responsible authority's refusal to grant a planning permit for the development of the subject land for an integrated warehouse development.
2. The responsible authority's grounds of refusal generally related to:
   • non-compliance with planning scheme provisions, including the Municipal Strategic Statement and Local Planning Policy;
   • the design and layout of the proposed development is contrary to the relevant approved development plan;
   • the proposed development exceeds the site coverage provided for in the Design and Development Overlay (Schedule 5).

1. Relating to the second of the responsible authority's grounds of refusal, the matter came before me as a preliminary hearing on a point of law. I was required to determine whether the permit application was "generally in accordance with" the approved development plan. This issue arose in the context of clause 43.04-1 of the Maroondah Planning Scheme (planning scheme) which provides that any permit granted must meet this requirement.
2. I consider that there are three key elements which underpin the approved development plan applying to the subject land[1]:
   • the development of a new internal road network, consisting of north-south connector roads;
   • proposed vehicular connections to the two main roads (via service lanes);
   • the general layout of the lots in three "banks"; and
   • the landscaping "theme" of treed boulevards and landscaped setbacks to the lots.
3. Acknowledging that there is some flexibility given to a proponent to resolve the details of a specific proposal so long as it is sufficiently derived from what is shown on a conceptual development plan, I find that the current application represents a significant departure from each of the key elements of the development plan. On this basis, I consider that the permit application cannot be regarded as "generally in accordance with" such plan.
4. That is not to say that the permit application would necessarily constitute a poor or inferior planning outcome for the subject land or the broader area encompassed by the development plan. However, if it is to be pursued in its current form, the permit applicant must first seek and obtain an amendment to the approved development plan. I have allowed for this to occur while keeping the application for review "on foot" by adjourning the application for an Administrative Mention in two months as requested by the permit applicant.

1. The subject land is included in the Industrial 1 Zone and is covered by the Development Plan Overlay (Schedule 1), the Design and Development Overlay (Schedule 5) and the Vegetation Protection Overlay (Schedule 1) of the planning scheme. The subject land also abuts two Road Zones - Category 1.
2. A planning permit is required under clause 33.01-4 to construct a building or to carry out works.

1. Mr Wong and Mr Carey outlined all relevant documentation and plans constituting the approved development plan in detail, being the Canterbury Road and Dorset Road Strategic Industrial Area Development Plan (Development Plan). This Development Plan extends to an area of land bounded by Dorset Road and Canterbury Road which includes the subject land and also various other parcels of land in different ownership and which are proposed to be used and developed in different formats.
2. Relevantly, Schedule 1 to the Development Plan Overlay provides that the approved Development Plan must contain details of:
   • the proposed road network, including a traffic management plan identifying the hierarchy of the internal road network, the location and types of access to the adjoining main roads;
   • indicative lot size and layout;
   • building envelopes for certain lots, such as those abutting a main road; and
   • landscape buffers and setbacks from the main roads and other areas, a vegetation survey and a landscape design and theme for the site (having regard to the desire to develop high quality industrial areas).
3. Following from this, the Development Plan approved by the responsible authority on 6 March 2002 consists of the following documents:
   • Traffic Engineering Assessment (prepared by TTM Consulting Pty Ltd;
   • Conceptual Site Development Plan (drawing No. 529014M1D, Rev. 02);
   • Landscape Guidelines;
   • Concept Landscape Plan;
   • Plan of Feature Survey;
   • Master Panning and Servicing Report; and
   • Arboricultural Inspection & Report, Terry Bourke.
4. For the purposes of determining whether this permit application is generally in accordance with the Development Plan, I regard the Conceptual Site Development Plan as the key document, with a notable contribution from the Concept Landscape Plan.
5. In so far as the subject land is concerned, the Conceptual Site Development Plan provides for relatively uniform sized lots in the order of 4,000 square metres, contained within one "bank" of lots accessed via the service lane to Dorset Road. Two other "banks" of lots are provided to the immediate west, serviced by a central collector road with dual footpaths, accessed via a service lane on Canterbury Road.
6. The Landscape Concept Plan provides a typical cross section of the road and landscaping treatment, with a "treed boulevard" concept for the main collector road running through the site on a north-south axis. It also depicts typical landscaping for each lot, which contemplates landscaping around individual warehouses or factories in addition to along road frontages.

1. The permit application seeks permission to develop the land for 25 warehouses with ancillary offices, car parking and landscaping.
2. In my opinion, the main features of the proposal are the development of five banks of attached warehouses, varying in size from approximately 2,000 square metres to 4,000 square metres. A series of proposed internal "driveways" would run east-west across the site, with 90 degree angle parking along every second of these driveways as well as along the western boundary and behind the proposed landscaped frontage to Dorset Road. Access and egress would be via five separate vehicle crossings from the service lane to Dorset Road and another crossing from Clipsal Drive, a newly constructed local road (running east-west) to the south.

1. The Tribunal has consistently regarded the principles to be applied to determine whether a development is generally in accordance with a development plan (or permit) as those identified in Canet v Brimbank City Council[2]. In summary:

(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".

Is the permit application generally in accordance with the approved Development Plan?

1. The responsible authority submitted that the application fails to meet this threshold test in three key respects:
   • The Development Plan shows the location of roads whereas the Application proposes shared driveways which have no resemblance to the road network shown on the Development Plan;
   • The layout of the development does not reflect the lot configuration and sizes shown on the Development Plan; and
   • The Application does not achieve a landscaped setting as required by the Development Plan.
2. It further submitted that:

In each of [the] key areas identified. . . the Development Plan contains a degree of particularity and precision as to what is contemplated, which correspondingly results in less flexibility on the part of the decision-maker in exercising their discretion.

1. While the Tribunal in other cases has been prepared to allow a degree of flexibility in assessing general accordance with a development plan, the discretion is not an unlimited one. I agree with Mr Wong's submission that an integrated development will usually only achieve general accordance with an approved development plan where that development incorporates the essential features of the development plan. While some Development Plans may be more in the nature of a "mud map", the current Development Plan provides for a detailed outline of an integrated "business park" as described in substantial documentation and plan form including details of internal and external road connections.
2. In my view, the current permit application seeks a degree of latitude that goes beyond the requirement that it be "generally in accordance with" the Development Plan. This is evidenced by the following aspects of the proposal:
   • There has been a complete "flip" in the orientation of both the lots and vehicle access within the estate, in that there has been a reconfiguration of internal accessways to be orientated east-west (formerly north-south), with lots to be orientated north-south (formerly east-west). The effect of this is to preclude the overall connectivity proposed across the broader area as a whole[3];
   • The central collector road providing access from Canterbury Road to approximately two-thirds of the lots has been entirely dispensed with - no access is provided via Canterbury Road in the current application. Moreover, the proposal for a central collector road has been replaced with five separate internal "driveways" of a lesser function.
   • There is no opportunity to achieve the key features of the Landscape Concept Plan, being a treed central boulevard through the site (along the collector road) or the achievement of landscaping around individual lots.

In my view, the effect of these departures is that the proposal does not bear any direct resemblance to the key features of the approved Conceptual Site Development Plan or Concept Landscape Plan in particular.

1. If the departure from the Development Plan was confined to the issue of lot numbers or lot size only, this would not have been a "sticking point". I consider that lot numbers or sizes in the Concept Plan are not a key feature of the Development Plan as distinct from the general lot layout which is a key feature, even accepting that the plan itself notes both aspects as "indicative only". The proposed lots range between 2,000 and 4,000 square metres and I consider that this is generally in the range contemplated by the Concept Plan. The more critical concern I have with the lots is their general layout over the site and the nature of their road access, as described above.

Other local departures from the approved Development Plan

1. Mr Carey submitted that the recently constructed Bunnings store to the west and four other recently constructed warehouses to the south were permitted to depart from the approved Development Plan. These departures included changes to lot sizes and layout and also the lack of incorporation of an internal connector road as proposed.
2. I can appreciate that there may be some frustration for this proponent in being confronted with this issue when it considers that similar departures from the Development Plan have been tacitly approved by the responsible authority in approving various applications for development and subdivision of other land within the Development Plan area.
3. To the extent that there may have been other departures from the key elements of the Development Plan, this may well be relevant to whether there are reasonable grounds for amending the Development Plan in the manner sought by this permit applicant. A key issue for consideration may be the extent to which the proposed internal connector road network can still be achieved, and whether it is desirable as a planning outcome. Another relevant matter may also be whether a direct connection to Canterbury Road is still be supported, having regard to what I was informed were VicRoads' concerns about the removal of native vegetation from the roadside and proposed road widening works. However, my role in this proceeding requires me to confine my assessment of the proposal against the requirements of clause 43.01-1 by comparing the Development Plan with only the current permit application.

1. The permit application proposes a site and lot layout that differs from the approved Development Plan in a number of key respects. It provides an entirely different proposal for main road access, internal road access, the orientation of all lots and the orientation of all roadways. It also fails to address the key aspects of the landscaped setting sought to be achieved. Having regard to the level of detail included in the Development Plan (reflecting the level of detail in the Schedule to the Development Plan Overlay), the permit application cannot be regarded as "generally in accordance with" the approved Development Plan.
2. The permit applicant must now decide whether to proceed with the permit application generally in the form determined by the responsible authority. If it elects to, it would need to seek and obtain considerable amendment to the approved Development Plan. Alternatively, it could lodge a fresh permit application for a development that is generally in accordance with the approved Development Plan as it stands.
3. The fact that the proposed development departs from key aspects of the approved Development Plan does not necessarily mean that the proposed development scheme is a planning outcome of lesser merit. I am not required to form a view on this at the present time but it may be that given recent development within the area encompassed by the Development Plan, the proposed modifications might be acceptable or even preferable. This is a matter to be determined by the responsible authority at first instance, following due process.

[1] As well as other land within the area delineated.

[2] [2003] VCAT 13.

[3] Acknowledging though that to some extent this has already occurred by the construction of two warehouses to the south, prematurely terminating what is otherwise identified as the collector road in the Development Plan.