1. Pursuant to s 149A of the Planning and Environment Act 1987, the following declarations are made in relation to the proposed developments on the subject land:
   • (a) The works relating to the re-surfacing of the School's north ground oval, comprised in an application for a planning permit dated

28 October 2008 no longer require a planning permit having regard to Clause 62.02 of the Banyule Planning Scheme, as amended by Amendment VC50 on 15 December 2008; * (b) The works relating to the re-surfacing of the School's north ground oval are generally in accordance with the Development Plan D777/0 approved by the Responsible Authority for the land on

1 February 2000 (as amended on 10 March 2006). * (c) The works relating the erection of three sets of gates adjacent to Russell Street and Scotts Parade (Gate 1), Fairy Street (Gate 18) and Elphin Street (Gate 19): * require a planning permit under Clause 43.01 of the Banyule Planning Scheme (Heritage Overlay HO-69) as the gates comprise part of a "fence" that specifically requires a planning permit under that clause. The works are therefore not exempt under Clause 62.02 of the Banyule Planning Scheme; * are generally in accordance with the Development Plan D777/0 approved by the Responsible Authority for the land on

Mr Egils Stokans, Solicitor, of Russell Kennedy Lawyers.

1. The Ivanhoe Grammar School has sought separate planning permits for two sets of works at its Ridgeway Campus in Ivanhoe, namely:
   • works relating to the re-surfacing of the School's north ground oval, comprised in an application for a planning permit dated

28 October 2008 (the 'north oval works'); and * works relating the erection of three sets of gates adjacent to Russell Street and Scotts Parade (Gate 1), Fairy Street (Gate 18) and Elphin Street (Gate 19) (the 'fence works'). These fence works have already been undertaken, and the school seeks retrospective approval. 2. The school's Ridgeway Campus is in a Residential 1 Zone. An Environment Significance Overlay, Vegetation Protection Overlay, Significant Landscape Overlay, Heritage Overlay, and Development Plan Overlay all apply to the school land. Subject to any exemptions under the Banyule Planning Scheme, it is common ground that: * a planning permit would be required for the north oval works under the Residential 1 Zone, the Significant Landscape Overlay, and the Heritage Overlay; and * a planning permit would be required for the fence works only under the Heritage Overlay. 3. Although the Development Plan Overlay (DPO) does not create a separate planning permit 'trigger', the DPO provides[1] that: * A permit must not be granted until a development plan has been prepared to the satisfaction of the responsible authority; * A permit granted must be generally in accordance with the development plan; and * An application for a planning permit under any provision of the scheme that is generally in accordance with the development plan is exempt from third party notice and review. 4. The responsible authority approved development Plan D777/0 for the school land on 1 February 2000. The plan was amended on 10 March 2006. 5. The responsible authority has however advised that it considers neither works are 'generally in accordance' with the development plan. The responsible authority has also purported to require and amendment to the development plan and/or third party notice of the permit applications. The school has therefore sought declarations under s 149A of the Planning and Environment Act 1987 that the works are generally in accordance with the existing development plan. 6. A prompt final hearing was held to enable a decision on the north oval works to be made quickly, as the school desires to implement these works during the summer recess. 7. Shortly before the prompt final hearing, on 15 December 2008, the Minister approved Amendment VC50 to all planning schemes, including the Banyule Planning Scheme applying to the school land. VC50 amended clause 62.02 to exempt certain works associated with an education centre from the requirement for a planning permit. 8. A preliminary question thus arises as to whether either works now fall within this new exemption and no longer require a planning permit. The responsible authority initially sought to have this issue deferred so that it could consider the implications of Amendment VC50. However, I am obliged to consider and apply the planning scheme as in force at the time of my decision. Given the need to have the planning status of the north oval works resolved quickly, the responsible authority ultimately conceded that the VC50 issue should be resolved within the prompt final hearing process and made submissions accordingly. 9. After hearing from the parties at the prompt final hearing, I expressed a view that the north oval works were now exempt from the requirement for a planning permit. I made an immediate oral declaration to that effect, and indicated reasons would follow. I reserved my decision in relation to the fence works.

1. Amendment VC50 amended clause 62.02 of the Banyule Planning Scheme to exempt certain works associated with an education centre from the requirement for a planning permit. The Ivanhoe Grammar School is clearly an 'education centre' for planning scheme purposes.
2. Amongst other things, the new exemptions in clause 62.02-2 include:

Buildings and works normally associated with an education centre including, but not limited to, outdoor furniture, playground equipment, art works, drinking fountains, rubbish bins and landscaping.

1. This exemption applies unless a planning permit is specifically required for the works under another provision of the planning scheme. It is common ground that, prior to Amendment VC50, the north oval works had only been caught under a general permit requirement for 'buildings and works' under the Residential 1 Zone, the Significant Landscape Overlay, and the Heritage Overlay, but that no specific requirement arises. Accordingly, if the north oval works fit within the wording of the new exemption, a planning permit for the works is no longer required.
2. The new 'education centre' exemption in clause 62.02-2 is curiously worded. On one reading, the initial words "Buildings and works normally associated with an education centre including, but not limited to ..." could be construed as creating an exemption, in a non-exhaustive fashion, to all buildings and works normally associated with an education centre - including even major school buildings, classrooms and the like. This is surely not what was intended. I consider that the use of words such as 'associated with' in the exemption, combined with the examples of exempt works such "outdoor furniture, playground equipment, art works, drinking fountains, rubbish bins and landscaping" creates a narrower genus, or type of works, to which the exemption is intended to apply. Mr Stokans for the school agreed that such an approach was appropriate.
3. Further support for this interpretation of the exemption arises from the supporting material that accompanied Amendment VC50. The Explanatory Report provides that the amendment changes the planning scheme by:

Making certain minor buildings and works associated with an Education centre exempt from the requirement for a planning permit in clause 62.02, including: temporary portable classrooms, paving, seating, tables, shelters, rubbish bins, playground equipment, art work, shade sails, drinking fountains and facilities for the disabled.

The notice of approval of Amendment VC50 published in the Victorian Government Gazette on 15 December 2008 contains a similar form of wording to the Explanatory Report. The word 'minor' is not however present in the actual exemption introduced into clause 62.02-2, and the new clause also expressly exempts 'landscaping' whereas the Explanatory Report and Gazette use other examples such as 'paving' and 'shade sails'. The reference to 'temporary portable classrooms' and 'facilities for the disabled' in the Explanatory Report and Gazette are reflected in separate amendments to clause 62.02, and thus have little bearing on a characterisation of the genus or type of works under the new exemption that I must consider.

1. The north oval works are described in the planning application as the re-surfacing of the North Ground oval from natural grass to synthetic grass. A stated aim is to drought-proof the oval. The synthetic surface will be permeable and laid over a crushed rock surface, and line marked for a variety of sports. The drainage and stormwater regimes are unaffected.
2. Given the wording of the new 'education centre' exemption in clause 62.02-2 is expressed in non-exhaustive terms, I do not need to consider whether the proposed north oval works constitutes one of the particular works expressly referred to in the clause such as, for example, 'landscaping'. I need only be satisfied that the north oval works are of the same broad genus or type that the exemption contemplates.
3. Having regard to the description of the works proposed, I am satisfied that the north oval works are of the same broad genus or type of works that includes 'landscaping' (in clause 62.02-2 itself) and 'paving' (an example in the Explanatory Report), or even 'playground equipment' or 'outdoor furniture'. The works do not form part of the main school buildings. They are for a recreational and sporting use external to the main school buildings, and relatively minor in nature having regard to the development and use of the school land as a whole. There are no apparent off-site amenity impacts. The works do not change the topography of the land or its drainage or stormwater regime, nor involve extensive earthworks or retaining walls. The crushed rock base for the synthetic surface is no different to a base that would be utilised for paving, and the surface will be largely permeable. I agree with Mr Stokans that whether the works involve re-sowing the grass lawns rather than re-surfacing with artificial grass makes no material difference for town planning purposes. Whilst not perhaps 'landscaping' in the strict sense that term is commonly understood, the works are of an equivalent nature and scale, and landscaping can in any event encompass hard surface areas and paving as well as gardens and planting.
4. It follows that I consider that the north oval works fall within the new exemption in clause 62.02-2. As such, as from 15 December 2008, the north oval works no longer require a planning permit.

Are the north oval works 'generally in accordance with' the Development Plan?

1. Given my finding above, it is perhaps unnecessary to decide whether the north oval works are 'generally in accordance' with the Development Plan for the school land although the school still sought a declaration to this effect.
2. Mr Cunningham, the responsible authority's town planner, indicated that he had been in email communication with officers at the Department of Planning and Community Development and believed that there was some prospect that the 'education centre' exemption introduced by Amendment VC50 might be further 'clarified' if there was confusion or ambiguity about its scope or application in practice. Accordingly, lest there be a further change to clause 62.02-2 that leads to a different interpretation of the exemption in relation to the north oval works (and/or the possible re-introduction of a permit requirement) before those works are completed, I consider it appropriate to still deal with this issue.
3. In the present case, the approved Development Plan is virtually silent in relation to the North Ground oval. The oval is shown on the existing conditions plan. The school also referred me to an oblique reference to the oval at page 7-3 of the Development Plan where the plan mentions a thick screen of elm trees that conceal the oval from residences in Russell Street adjacent to the eastern boundary.
4. I do not agree with the responsible authority's view that the absence of any reference to the north oval works in the approved Development Plan means that the works are not 'generally in accordance with' the plan.
5. In interpreting the expression 'generally in accordance with' in the context of a development plan, the Tribunal has in the past applied the following principles[2]:
   • 'general accordance' is a question of fact to be judged on the facts and circumstances of each case; and
   • 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".

1. I also agree with Mr Stokans that applying this principle leads to a conclusion that the north ground works are generally in accordance with the Development Plan. There is nothing apparent from an overall reading of the Development Plan that necessarily implies that the plan was intended to control all possible future use and development of the school land, including relatively minor or subsidiary works, nor that the plan was intended to specifically control or regulate the re-surfacing or use of North Ground oval. Moreover, the north oval works are not in conflict with any specific provision of the Development Plan, and do not in any way prevent or undermine the achievement of the Development Plan.
2. The Development Plan purports to deal with proposed use and development for the period 1999/2000 and 2001/2007 - a period that has now passed. It is also in many instances a statement of preference and intent, rather than a clearly binding control document. For example, at page 7-5, the Development Plan simply outlines that the school generally agree with landscaping suggestions from a working group that will provide a 'reference point' and 'input to its ongoing maintenance and enhancement of the open space areas of the campus'. The Development Plan does not purport to exhaustively set out or control the future development that might be encompassed by that maintenance and enhancement of the school's open space areas.
3. The lack of precision and detail in the Development Plan, insofar as it applies to the area of the North Ground oval, is such that it cannot be reasonably construed that the north oval works are contrary to the plan. Moreover, the works are relatively minor in nature, and the Development Plan was first approved some 8 years ago - well before the re-surfacing of the oval was contemplated. These factors, in combination, cannot in my view reasonably lead to a view that the absence of a reference to the north oval works in the Development Plan evidences an intention by the plan to now effectively prohibit those works[3]. Such a level of control or prohibition, if it existed, should be clearly apparent or capable of being necessarily implied from the Development Plan. That is not the case here. As I have indicated, the north oval works do not in any way prevent or undermine the achievement of the Development Plan.
4. It follows that, in my view, adopting a flexible and common sense reading of the Development Plan, the north oval works are generally in accordance with the plan.

1. As indicated earlier, the 'education centre' exemption only applies unless a planning permit is specifically required for the works under another provision of the planning scheme. This is made clear by the last sentence in clause 62.02-2.
2. It is common ground that, for planning purposes, the three gates forming part of the fence works ought to be characterised as a fence. It is also common ground that, prior to Amendment VC50, the fence works were caught by a specific permit requirement for 'fence' under the Heritage Overlay. Clause 43.01-1 of the planning scheme (Heritage Overlay) expressly requires a planning permit for a fence.
3. It follows that, even if a fence falls within the genus or type of works covered by the new 'education centre' exemption introduced by Amendment VC50, that exemption does not apply (and is effectively reversed) by the specific permit requirement in clause 43.01-1.
4. Accordingly, the fence works still require a planning permit by reason of the Heritage Overlay.
5. It is perhaps important to the following discussion to note that the Heritage Overlay schedule applying to the school land is HO-69. That schedule identifies the relevant 'heritage place' as 'Sherwood House' formerly 'Ivanhoe House', Ivanhoe Boys' Grammar School, The Ridgeway, Ivanhoe'. Sherwood House however occupies only a very small part of the school land, and the three gates comprising the fence works are all several hundred metres from Sherwood House.
6. The decision guidelines relevant to deciding on the permit application, contained in clause 43.01-4 of the planning scheme, all relate essentially to whether the proposed works will adversely affect the significance, character or appearance of the heritage place - i.e. in this case, Sherwood House and its associated land. In ultimately deciding on the application for the fence works, and in considering matters of possible detriment to others in a town planning context, the responsible authority is effectively constrained by these limited heritage considerations. The responsible authority cannot exercise its discretion for an ulterior or non-related purpose.

Are the fence works 'generally in accordance with' the Development Plan?

1. As indicated earlier, under the Development Plan Overlay (clause 43.04-1), any permit granted must be generally in accordance with the development plan. This means that works that are not generally in accordance with the Development Plan cannot be permitted, and are thus essentially prohibited unless or until the Development Plan is amended.
2. As also indicated earlier, in interpreting the expression 'generally in accordance with' in the context of a development plan, this is a question of fact to be judged on the facts and circumstances of each case, and more flexibility will be given to the phrase where there is little detail and precision in the primary document.
3. Insofar as the fence works are concerned, there are two competing considerations:
   • Under the heading 'Pedestrian Facilities' in Clause 6.5 of the Development Plan, the following paragraph appears:

The school intends to retain existing opportunities for public pedestrian access through the School, subject to its public liability obligations. There are no proposals in this Development Plan to restrict public pedestrian access to or through the Campus.

The three sets of new gates comprised in the fence works will have the effect of restricting public pedestrian access through the school land - at least for the periods when the gates are closed.

• The fence works only require a planning permit by reason of the Heritage Overlay (clause 43.01-1). Under the specific heading 'Heritage Overlay (HO-69)' in Clause 8.3 of the Development Plan, there are a number of paragraphs dealing with the purpose of the overlay control, and its specific reference to Sherwood House. There is no reference in this section at all to the fences or gates some distance away, nor to pedestrian access.

1. In attempting to resolve the ambiguity created by these two competing considerations, I have ultimately come to the conclusion that the fence works are still 'generally in accordance' with the Development Plan, and capable of being authorised by a planning permit. I have come to this conclusion primarily for the following reasons:
   • Although Clause 6.5 of the Development Plan purports to deal with pedestrian access, in my view it lacks the detail or precision necessary to give it the status of an effective planning control on the fence works, particularly as there is no 'general' planning control (i.e. apart from the Heritage Overlay control) that creates a permit trigger for the gates. The reference to retaining opportunities for public pedestrian access, in Clause 6.5 of the Development Plan, is made in broad aspirational terms;
   • The reference to retaining pedestrian access, in Clause 6.5 of the Development Plan, is also conditional. It is expressly subject to the school's public liability obligations. I accept the submission by Mr Stokans that public liability issues for the community generally, and schools in particular, have increased considerably over the nearly 10 years since the Development Plan was first approved. I also accept at face value Mr Stokans' submission (not contested by Mr Cunningham) that the proposal to lock the gates at night and at weekends "is in direct response to the public liability insurer's concerns" and therefore comes squarely within what is contemplated by the Development Plan;
   • I agree with Mr Stokans that the Development Plan should not be applied in a way that abrogates the school's private property rights, or extends the role of the Development Plan beyond its limited planning function under the planning scheme and Development Plan Overlay. An aspirational and qualified reference to retaining existing opportunities for public pedestrian access is not, in my view, sufficiently precise to completely fetter the school's ability to control access over its private land, particular in response to a permit application arising only under the Heritage Overlay. If the responsible authority considers there to be an implied or 'long user' easement of way over the school land, that is a matter for another forum;
   • The Development Plan Overlay creates no separate permit trigger for the fence works. In considering the Development Plan in the context of a planning permit application arising under another control in the planning scheme, the purpose and intent of that other planning control becomes a relevant factor in determining whether the works proposed in the application are generally in accordance with the Development Plan. Here, it is only the Heritage Overlay that creates a permit trigger, and thus calls up the Development Plan for consideration. The specific provisions of the Development Plan dealing with the specific Heritage Overlay schedule in question (i.e. HO-69 relating to Sherwood House some distance away) are silent on the issue of the fence works or pedestrian access, and Mr Cunningham conceded that there were no heritage issues arising from the fence works. The lack of any clear heritage reference means that the Development Plan should be given a more flexible interpretation in relation to the fence works, and the specific heritage provisions should not be 'read down' by general references to pedestrian access elsewhere in the Development Plan;
   • As indicated earlier, the Development Plan purports to deal with proposed use and development for the period 1999/2000 and 2001/2007 - a period that has now passed. The Development Plan does not purport to exhaustively set out or control all future development and use of the school land for all time, including relatively minor works such as fences and gates that do not ordinarily attract a planning control.
2. Having found that the fence works are 'generally in accordance' with the Development Plan, it follows that the planning permit application for the fence works is exempt from third party notice and review rights.
3. The responsible authority should therefore determine the planning permit application for the fence works by reference to the decision guidelines under the Heritage Overlay relevant to the application.

[1] Clauses 43.04-1 and 43.04-2 of the Banyule Planning Scheme

[2] Jocelyn Meadow Pty Ltd v Casey City Council [2004] VCAT 2627 at para [61] per Gibson DP, following Canet v Brimbank City Council [2003] VCAT 13

[3] As indicated earlier, clause 43.04-1 of the planning scheme (the Development Plan Overlay) requires that a permit granted must be generally in accordance with the development plan. A finding that the works are not generally in accordance with the development plan therefore leads to an effective prohibition on the works unless or until the development plan is amended.