1

This matter is set down for a three hour hearing on Friday March 4 at 2.15 pm. The purpose of the hearing is to provide the parties with the opportunity to make further submissions on;

(a)

The appropriateness of condition numbers 24 and 25 of the without prejudice conditions circulated by the responsible authority prior to the hearing on 20 December, 2004, and

(b)

The question of law identified in paragraph 10 of the attached Reasons

2. The Tribunal will be reconstituted to include a legal member for the purposes of determining the question of law.

Mr Norton called Mr A Rodda, town planner of Contour Consultants Pty Ltd.

1

This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the subdivision of land at 384 Gordons Road, South Morang. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

1. The proposal fails to comply with the objectives and directions of State and Local Planning Policy Frameworks;

2. The proposal is not consistent with Gordons Road South Morang Development Outline Plan and constitutes an overdevelopment of the site.

3. The proposal fails to comply with some of the key objectives and directions of Clause 56 of the Whittlesea Planning Scheme.

2

Prior to the hearing the Council had circulated "without prejudice" conditions which it sought to have imposed in the event that a permit was issued. At the conclusion of the hearing I received submissions from Mr Singh and Mr Naughton with respect to the imposition of appropriate conditions.

3

Condition 24 of the Council's without prejudice conditions states;

Prior to the Issue of the Statement of Compliance, the applicant/owner must provide to an amount of $25,430.00 for a contribution to the cost of construction of Gordons Road to the Responsible Authority. This amount of contribution is based on the area of the land being subdivided on a per hectare basis. All costs associated with the preparation and execution of the Agreement must be borne by the permit/holder/owner.

Development contributions of 42,566.00 /hectare shall be paid to the Responsible Authority in accordance with the approved South Morang Local Structure Plan prior to the issue of the Statement of Compliance.

5

With respect to condition 25, Mr Singh agreed with Mr Naughton's submission that the Gordons Road Outline Development Plan states that the contribution of $42,566.00/hectare is not applicable. Mr Singh however was not able to respond to Mr Naughton's submission that there is no basis for the imposition of condition 24 because the contribution required is not referenced in either the South Morang Local Structure Plan or the Gordons Road Outline Development Plan, and because there is no Development Contributions Plan enabling the Council to require such a payment.

6

I granted leave for Mr Singh to provide a further written submission in response to Mr Naughton's submission concerning condition 24. I also granted leave for Mr Naughton to respond to that submission

7

I subsequently received a submission from the Council which, in effect, sought to retract Mr Singh's concession made at the hearing with respect to the applicability of condition 25. Reference was also made to the basis upon which condition 24 is sought to be imposed.

8

Mr Naughton subsequently responded to the Council's submission in the following terms;

1. The Council response should have been limited to Condition 24

2. At no time was it suggested by anyone that condition 25 related to open space contributions.

3. Gordons Road has been built and paid for. This is true also of Lamour Avenue, and would have been paid for by the developer of an earlier subdivision. We say this despite part of our client's land being given over as road reserve.

4. The LSP does not, in the absence of a Development Contributions Overlay, enable a development contribution as contemplated by condition 25. The LSP (page 36) references Council having put in place a 1995 funding policy. Clearly, in the absence of a Development Contributions Overlay, this policy position has no legal standing.

In the circumstances, and consistent with conditions put at the hearing, Conditions 24 and 25 are not sustainable.

9

Having regard to the nature of the issues raised by the submissions made following the hearing (in accordance with the leave granted by the Tribunal) it is in my view preferable to reconvene the hearing to enable both parties to put further submissions to the Tribunal regarding the appropriateness of conditions 24 and 25.

10

A question of law also arises out of these submissions, namely whether or not the conditions requiring development contributions to be paid have legal standing in the absence of a Development Contributions Plan Overlay or the existence of an agreement made under Section 173 of the Planning and Environment Act 1987.

11

At the reconvened hearing therefore, it is proposed to reconstitute the Tribunal to include a legal member to determine the question of law.

12

Notwithstanding the issues relating to the permit conditions outlined above, I am in a position to proceed to make findings on the merits of the Application. For the reasons I elaborate on below, I am satisfied that the proposed subdivision is generally in accordance with the relevant development plan, meets the requirements of Clause 56 and achieves an acceptable outcome having regard to the zone provisions and applicable policy framework.

13

In the absence of the unresolved issues concerning the permit conditions which remain in dispute, I would have directed the issue of permit for the subdivision of the land.

14

It is proposed to subdivide the land into 34 lots. The subdivision layout comprises a single internal road with four (two semi) circle court bowls and a single connection to the wider street network via Belinda Court to the south. The distribution of lot sizes is as follows;

•

7 lots between 350m2 and 450 m2.

•

19 lots between 500 m2 and 600 m2.

•

5 lots between 600 m2 and 700 m2.

•

3 lots between 700 m2 and 800 m2.

15

Building envelopes are provided on each of the lots less than 500 m2.

16

The review site forms part of a wider, developing residential subdivision located on the northern fringe of metropolitan Melbourne. The site has an area of 2.33 ha and is vacant except for a dwelling which is to be demolished, located on the western section of the site. The site is bordered on three sides by developed or developing residential subdivisions. Land immediately to the west is known as the Quarry Hills and provides a rural backdrop to the developing subdivisions. This land is zoned Rural Conservation.

17

The wider, developing residential area within which the review site is located has been and is continuing to be planned in accordance with the South Morang Local Structure Plan. The review site and land immediately to the south and the east forms part of the Gordons Road Outline Development Plan area. This document establishes a network of roads and intended subdivision patterns for land at the interface of the Mill Park Lakes Estate to the south and a further subdivision to the north of Gordons Road.

18

The review site is zoned Residential 1, the relevant purpose of which is to provide for residential development at a range of densities. A permit is required to subdivide land in accordance with Clause 32.01-2. A subdivision must meet the requirements of Clause 56.

19

A Development Plan Overlay (DPO6) also applies to the land. The purpose of the Overlay is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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.

20

Under the provisions of the Overlay, 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. Any permit granted must be generally in accordance with the development plan and include any conditions or requirements specified in the schedule to the overlay.

21

The Schedule to the Overlay specifies that the Responsible Authority may grant a permit for subdivision, use or development prior to approval of a development plan provided that the Responsible Authority is satisfied that the subdivision, use or development will not prejudice the future use or development of the land for the purpose of the zone or any other aspect of the Municipal Strategic Statement.

22

The Schedule also specifies that the Development Plan must include sufficient area to demonstrate that development of the area to be subdivided is so far as practicable integrated with the immediately surrounding area, and must show:

•

General consistency with the South Morang Local Structure Plan.

•

The local road, pedestrian and bicycle network, including links to adjoining land and networks and provision for access to proposed public transport routes.

•

Concept design of the proposed subdivision including proposed landscape treatments.

•

Location and layout of non-residential uses, including activity centres and open space.

•

Relevant topographical and landscape details, including identification of significant environmental and cultural features and measures to preserve and enhance those features.

•

Opportunities for a diverse range of allotment sizes and dwelling types.

23

The Gordons Road Outline Development Plan was adopted by the Council in July 2000.

24

The site is also affected y a Vegetation Protection Overlay (VPO1). A permit is required to remove, destroy or lop any vegetation specified in the schedule to the Overlay. The current subdivision application does not involve the removal of any vegetation.

25

I was provided with a detailed summary of the applicable policy framework by Mr Singh and Mr Rodda, and it is not necessary for me to repeat that material here. In broad terms however, the review site is located within the Urban Growth Boundary and forms part of a designated residential growth area. The policy framework encourages the preparation of structure plans to guide the growth and development of these areas, and also encourages site responsive and sustainable subdivision design, incorporating features such as varying lot sizes and densities.

26

Clause 22.04 is a Subdivision Design Policy and Clause 22.11 is a Development Contributions Plan Policy. I will return to an assessment of this proposal against these policies specifically, subsequently in this decision.

27

General decision guidelines are at Clause 65 and decision guidelines specific to the consideration of applications to subdivide land are at Clause 65.02.

28

The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

29

Mr Rodda presented a written report and gave oral evidence, and was made available for cross examination.

30

I agree with Mr Naughton that the threshold issue in this matter is whether or not the proposed subdivision is generally in accordance with the development plan applying to the area.

31

Mr Naughton set out the relevant principles which have been adopted by the Tribunal in a number of cases when determining whether or not a proposal is generally in accordance with a development plan, master plan or other similar document. Mr Naughton referred to the decision of Deputy President Horsfall in Canet v Brimbank CC (P2370/2002) in which Mr Horsfall concluded that:

(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".

32

These principles have subsequently received support from Morris J in Melbourne City Council v Becton Corporation & Ors (P3160/2002).

33

Senior Member Byard made the following observations in Lowther Hall Anglican Grammar School v Moonee Valley CC (2000/22963);

I did not say, because I thought it obvious and it had been assumed throughout the discussion in the course of the hearing, that "generally in accordance" does not mean exactly or precisely in accordance with the Master Plan...........

A proposal only has to be in general accordance with something which, of its self, is only a general indication. On this basis something quite different in design, size or location is called for if it is to be outside the concept of general accordance.

34

I have adopted and applied those principles in the consideration of this matter.

35

Reference to the relevant development plan indicates that the review site forms part of the western boundary of the area affected by the development plan. The development plan includes a subdivision layout for the site which I can only describe as conceptual in nature. The plan shows the site accessed from a single road to the south extending into the site with a right angle bend at about mid block, and then extending in an easterly direction and truncated on the eastern boundary of the site. The western portion of the site contains single, large lot, apparently intended to accommodate the existing dwelling on the land. The balance of the site is subdivided into 21 lots.

36

Mr Rodda conveniently summarised the difference between the subdivision layout reflected in the development plan and the proposed subdivision;

•

The existing dwelling is not proposed to be retained, but subdivided into lots of similar size to those found in the surrounding area.

•

A two headed court is to be created east and west of the access from Belinda Court.

•

A pedestrian/cycle path connection is proposed to Gordons Road from the new court.

•

Lot sizes are below 451 square metres in the case of seven lots and three lots are above 650 square metres in size.

•

The number of lots is greater than contemplated in the concept plan as a result of the availability of the land occupied by the existing dwelling.

37

I agree with Mr Rodda that these changes are largely inconsequential in terms of ensuring that the purpose of the development plan is met and in particular in ensuring that the form and conditions of future use and development of the land is resolved prior to the grant of a permit for subdivision.

38

I note that the dwelling on the land which is now intended to be demolished and the surrounding grounds incorporated into the subdivision, is not affected by a heritage overlay and no permit is required for its demolition

39

In effect, it was Mr Singh's submission that the proposed subdivision does not sufficiently replicate the subdivision layout contained within the development plan and as a consequence a permit ought not be granted. The Council's position on this matter reflects a misunderstanding of the respective roles of the development plan and the subsequent permit process in the planning for the development of these areas. The requirements for a development plan for this area are succinctly set out in the schedule to the overlay and these requirements emphasise the role of the development plan in coordinating the subdivision, use and development of separate parcels of land. I have quoted those requirements in full previously in these Reasons.

40

It is clear that the development plan is intended to ensure that development achieves "general consistency with the South Morang Local Structure Plan", coordination with road, pedestrian and cycle linkages and conceptual design of subdivisions. The development plan is not intended to provide for the detailed subdivision layout of each individual land parcel within the development plan area.

41

There is nothing in the proposed subdivision which would compromise the achievement of any of the outcomes sought by the Gordons Road Development Plan.

42

Having regard to my findings above, I am satisfied that a permit is capable of being issued for the proposed subdivision having regard to the requirements of the Development Plan Overlay.

43

With respect to the detailed design of the subdivision and its acceptability having regard to the requirements of Clause 56, the decision guidelines of Clause 65, the zone provisions and the applicable policy framework, I am satisfied that the subdivision achieves an acceptable outcome. Mr Rodda provided a detailed assessment of the proposal against each of these provisions and concluded as follows;

•

The proposed subdivision is a practical and reasonable development of the review site having regard to relevant policies, the zoning of the land and the urban design outcomes contemplated by the Whittlesea Planning Scheme.

•

The proposal integrates with the existing subdivision pattern on adjoining land and provides adequate connectivity to the balance of the residential estate which is being developed along the Gordons Road area of South Morang

•

A mix of lot sizes will be provided with each lot capable of siting a new dwelling in a manner which takes general account of solar orientation principles.

•

There are no physical constraints which restrict the proposed subdivision.

•

The proposal is an appropriate response to Clause 56 of the Whittlesea Planning Scheme, the relevant development plan which applies to the land and the Council's subdivision guidelines.

•

Existing vegetation on the land makes minimal contribution to the amenity of the locality and is impractical to retain for the proposed layout.

•

A net community benefit is achieved through optimising the development of the land having regard to the population aims of Melbourne 2030.

44

I accept Mr Rodda's evidence with respect to these matters.

45

The proposal is generally in accordance with the relevant development plan and a permit is capable of being issued for the subdivision of the land having regard to the requirements of the Development Plan Overlay. The proposed subdivision achieves acceptable outcomes having regard to the relevant requirements of the planning scheme.

46

Having regard to the issues I have alluded to previously concerning the appropriate conditions to be imposed on the permit, I intend to provide the parties with the opportunity to make further submissions on this matter and to make submissions with respect to the question of law which arises out of it.

47

In the absence of the unresolved issues concerning the permit conditions which remain in dispute, I would have directed the issue of permit for the subdivision of the land.