1. The Development Plan is a document containing both text and plans.
2. The Development Plan designates the majority of the review site as an industrial/commercial area with an area shown for a waterway/drainage reserve.
3. The Development Plan sets out the physical and policy context of the review site as it stood in 2018. This includes a description of both industrial land use policy and transport policy applying to the review site at that time.
4. Bisecting the review site is an area labelled as 'Epping North Transport Corridor'. This is shown in the following plan (where the second image is an enlargement of the ENTC).[10]

Figure 7 - Enlargement of text in Development Plan page 16

1. Below we extract parts of the text of the Development Plan that relate to the ENTC.
2. The Development Plan includes commentary at page 12 that:

Clause 21.11 includes Council's Integrated Transport Plan which shows the future Wollert rail line extension from the current South Morang line from the Epping principal activity centre which will continue north to the future Wollert activity centre within the Lyndarum North residential estate. The Wollert rail line is identified to extend through the subject land in the southern portion of the site continuing to the north-west through the adjoining Connect North business park.

1. The Development Plan includes the following statement about land use:[11]

The site will support the creation of a new drainage reserve, anticipated to be a little over 4 hectares in size, positioned to the south-east as required through the Melbourne Water Edgars Road DSS. Designation of the future Wollert train line extension is incorporated in the development plan transecting the land through the south and west property boundary.

1. Section 6.3 (at pages 20 and page 21) of the Development Plan also includes the following statements about access and mobility:[12]

A local street is applied to the northern side of the rail line reserve to achieve an active interface and visual connection. The development plan adopts a balanced response to the rail line reserve with development adjoining the reserve to the south.

...

The development plan supports provision of a 30 metre wide strip of land for the purpose of a future public transport reserve. The future reserve land is located to integrate with land previously set aside for this purpose on adjoining land. A 5 metre wide tree reserve is provided between the public transport reserve and industrial land to support a vegetated interface and improved land use outcome.

Land required for the Public Transport Corridor is to be transferred to the relevant authority prior to the issue of the statement of compliance for the stage within which the public transport land is contained or at an alternate time as agreed by Council. The transfer of the land will be at no cost to Council.

1. On 16 May 2023, the applicant lodged the DP Amendment Application with the council.
2. The DP Amendment Application includes the following plan:

1. As can be seen, the plan removes the ENTC designation from the review site and replaces it with 'industrial/commercial area' in that same lot alignment.
2. In other parts of the DP Amendment Application, all text referring to the ENTC is removed. The changes sought in the DP Amendment Application are discussed in more detail later in this decision.

1. A 'Subdivision Concept Layout Plan' was endorsed under the Permit on 29 September 2022 and shows the following layout:

Figure 9 - Subdivision Concept Layout plan endorsed 29/9/2022

1. The Subdivision Concept Layout Plan identifies an area labelled as 'Epping North Transport Corridor', as can be seen from the following extract:

Figure 10 - Extract of Subdivision Concept Layout plan endorsed 29/9/2022

1. This corresponds with the text and graphics of the Development Plan.
2. Various stages of the review site have completed construction and individual titles have been issued. Based on information provided by the council during the hearing, we understand that:[13]
   1. Stage 1 was registered on 19 September 2023;
   2. Stage 1 - statement of compliance ('SOC') issued 1/9/2023 - Titles issued 12/9/2023;
   3. Stage 2 - SOC issued 3/5/2024 - Titles not yet issued;
   4. Stage 3 - SOC issued 14/12/2022 - Titles issued 27/1/2023;
   5. Stage 4A - SOC issued 8/5/2024 - Titles not yet issued;
   6. Stage 4B - SOC issued 8/5/2024 - Titles not yet issued; and
   7. Stage 4C - SOC not yet issued.
3. The ENTC forms Lot F on registered plan of subdivision 838542P, as shown below:

Figure 11 - Certified Plan of Subdivision creating Lot F that is the land subject of the ENTC marked on the Development Plan.

1. Lot F was excised from Lot C, with Lot C then being developed as Stage 3 with titles issued for the individual lots within Lot C.
2. We understand from submissions that Lot F is not in a stage of the Subdivision Concept Layout Plan and has not been issued with a title.
3. We understand from submissions that the proposed Dillop Drive Retarding Basin was transferred to Melbourne Water Corporation as part of a separately approved drainage scheme for the area, in order to accommodate drainage associated with the Epping Drain that traverses the review site.

1. On 2 May 2022, the applicant lodged the Permit Amendment Application with the council.
2. In the covering letter for the Permit Amendment Application,[14] the applicant explains the purpose of the Permit Amendment Application, being in effect to trigger planning compensation under the Act. The letter states:

... This application proposes amendments to the currently endorsed plan as detailed on BPD plan reference 7478_UD_ODP04-V2 dated 19th April 2022. The proposed amendments are sought to facilitate the fair and reasonable compensation of that part of the site identified on the current endorsed plan as supporting the Epping North Transport Corridor through proposing subdivision of this land. Upon referral of the application to the Department of Transport we anticipate the Department to issue a notice of objection to the proposed amendments.

1. An extract of the proposed subdivision to create Stage 3A, that is the subject of the Permit Amendment Application,[15] is below.

Figure 12 - Extract of Permit Amendment Application

1. As can be seen, in place of the ENTC are eight lots of varying size and with no reference to the ENTC.
2. On 24 February 2023, the council refused the Permit Amendment Application for the following reason:

The Head, Transport for Victoria has considered this application and objects to the grant of a permit on the following grounds:

1. The proposed subdivision is not in accordance with the North Growth Corridor Plan and approved Development Plan for the area.

PROCEDURAL ORDERS: DP AMENDMENT APPLICATION AND PERMIT AMENDMENT APPLICATION

1. On 14 July 2023, a combined practice day hearing was held for P526/2023 and P852/2023. The purposes of this practice day hearing included to consider matters of future conduct and procedure, as well as:
   1. In application P526/2023, to consider whether the HTV is a referral authority for the application under the Scheme and, if it is not, to consider the status of the correspondence from the HTV dated 12 January 2023 and the relevance of the council's grounds for refusing the Permit Amendment Application; and
   2. In application P852/2023, to consider whether the HTV has an interest and should be served with a copy of the application for review.
2. The Tribunal determined that the two proceedings should remain as separate proceedings but be heard and determined together at a hearing in December 2023.
3. The Tribunal also ordered in relation to P526/2023 that:
   1. HTV is not a referral authority under the Scheme in relation to the Permit Amendment Application; and
   2. HTV is allowed to make submissions at the scheduled hearing as a non-party in accordance with section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), subject to it lodging a statement of grounds.
4. In relation to P852/2023, the Tribunal ordered that HTV is identified as a body that has a relevant interest in the outcome of the application, and is allowed to make submissions at the scheduled hearing as a non-party in accordance with section 98(1)(c) of the VCAT Act, subject to it lodging a statement of grounds.
5. The Tribunal provided remarks explaining its determination that HTV was not a referral authority.
6. In the remarks, the Tribunal referred to the submissions by the council and HTV that HTV was a determining referral authority in accordance with clause 66.02-11 of the Scheme because the application for subdivision included 'alteration or development of public transport infrastructure or stops'.[16]
7. The Tribunal disagreed with this submission, stating that:

[9] I am not persuaded by the Council's submission that the transport corridor earmarked for the review site and surrounding land comprises public transport infrastructure. While the transport corridor has already been set aside in the approved DP, as well as the endorsed plan to the planning permit for subdivision, I am not persuaded, having regard to the Macquarie Dictionary definition, that the public transport infrastructure in such a corridor could comprise the vacant land, absent of any equipment or installations installed or constructed upon that land. This is particularly the case where the land that comprises the transport corridor is not a separate parcel of land, is not owned by the HTV or another related authority, is not covered by a Public Acquisition Overlay or a Transport Zone, and has not, to my knowledge, been declared as required for a public purpose. While none of these matters may on their own turn this vacant land into public transport infrastructure, their collective absence is a further reason to support my finding. > > [10] It therefore follows that HTV is not a determining referral authority for the planning permit application. Further, given the third party exemptions that apply to this land under the Development Plan Overlay, they should also not be joined as a party to proceeding P526/2023. > > [11] However, I find that it is appropriate to allow HTV to participate as a non-party in the hearing of both proceedings. I form this view as the decision that is before the Tribunal in these proceedings, which is essentially whether a transport corridor for a future rail line should be provided through the review site, is best made after hearing from the parties to the proceeding, as well as the HTV. The views of the HTV appear to be essential for the Tribunal to hear and understand in this proceeding, in order for the Tribunal to be properly informed in its decision making task. As such, regardless of the status of the HTV in terms of not being a referral authority, their participation as a non-party in this proceeding is at this stage considered appropriate and indeed, necessary.

8. On 18 August 2023, the council filed an updated statement of grounds in each proceeding.
9. In P526/2023, the council's statement of grounds now provides:
   1. The permit amendment application is not generally in accordance with the approved development plan.
   2. The permit amendment application is fundamentally inconsistent with the Whittlesea Planning Scheme including the Planning Policy Framework, the Municipal Planning Strategy, including at clause 02.03-8, the Epping North Strategic Plan, the Epping North Structure Plan and the existing 100B Yale Drive and 75 O'Herns Road, Epping North Development Plan (2018).
   3. The permit amendment application is inconsistent with the principles of orderly planning.
10. In P852/2023, the council's statement of grounds now provides:
    1. The proposed amendment is fundamentally inconsistent with the Whittlesea Planning Scheme including the Planning Policy Framework, the Municipal Planning Strategy including at clause 02.03-8, the Epping North Strategic Plan the Epping North Structure Plan and existing 100B Yale Drive and 75 O'Herns Road, Epping North Development Plan (2018).
    2. Providing for an amendment which was so inconsistent with the policy framework would be inconsistent with the principles of orderly planning.
11. At the commencement of the hearing in December 2023, the Tribunal[17] adjourned the hearing of the proceeding to enable the circulation of proposed questions of law and for the Tribunal to be reconstituted to include a legal member.
12. At a subsequent practice day hearing,[18] no party opposed the Tribunal making orders to join HTV as a party to the proceedings.
13. Arising from this practice day hearing, orders were made to join HTV as a party and, among other things, the circulation of submissions on the questions of law.
14. As stated earlier, following the exchange of submissions on the questions of law, it is now apparent that all parties agree on the answers to those questions. Accordingly, the parties submit there is no longer a need for the Tribunal to determine those questions of law. We address these questions of law briefly, below.

Q1 If the DP Amendment Application is not granted, can the Tribunal refuse to grant the Permit Amendment Application on the basis that the land is or will be needed for a public purpose, or does the jurisdictional fact of the Approved Development Plan coupled with the prohibition in the control at clause 43.04-2 of the Whittlesea Planning Scheme deny the Tribunal jurisdiction? > > Q2. Assuming that the DP Amendment Application is not granted, can the Tribunal refuse to grant the Permit Amendment Application on the basis that the land is or may be needed for a public purpose or does the jurisdictional fact of the Approved Development Plan and the prohibition in the control at clause 43.04-2 of the Whittlesea Planning Scheme deny the Tribunal jurisdiction?

a) Does the Tribunal have jurisdiction to amend Planning Permit 718021 if it disallows the Development Plan Review? (First Question); and > > b) If the Tribunal upholds the decision of the Whittlesea City Council (Responsible Authority) to refuse to amend the Permit, is it open to the Tribunal to do so on the ground that the Subject Land "is or will be needed for a public purpose" within the meaning of section 98(2) of the Planning and Environment Act 1987 (Vic) (Planning Act)? (Second Question)

3. The applicant considers the questions can be clarified as follows:

a) First, if the Tribunal refuses to amend the Development Plan, can it amend the Permit as proposed? > > b) Second, can the Tribunal refuse to amend the Development Plan (and Permit) on the basis that the corridor land is or will be needed for a public purpose (for purposes of sections 98(2) and 99(d) of the P&E Act)?

1. The applicant submits that as HTV and the council have not raised any questions of law about which there is any dispute, the Tribunal does not need to consider or determine any questions of law. Therefore 'the Applications fall to be considered on their merits'.
2. This position was agreed by all parties in reply submissions and reiterated at the commencement of the May 2024 hearing.
3. Notwithstanding, these questions remain before us and so, for completeness, we briefly address the key aspects of each party's submissions on the questions of law and then provide our answer to each question.

1. In summary, HTV submits that it opposes the DP Amendment Application because its removal of all references to the ENTC is contrary to the strategic planning undertaken with respect to the ENTC and with those provisions in the Scheme that call for the protection of planned and potential transport infrastructure from incompatible land use and development.[19] HTV also contends that the DP Amendment Application is inconsistent with principles of orderly planning.[20]
2. As to HTV's second question, HTV submits that there is not a proper basis upon which the Tribunal could conclude that the review site 'is or will be needed for a public purpose' within the meaning of section 98(2) of the Act.[21]
3. HTV submits that:[22]

[26] In order to make an order of the type sought by the Applicant, the Court would need to find, as a matter of fact, that the Corridor Land "is or will be needed for a public purpose". More particularly, as Ashley J observed in Fitzwood Pty Ltd v Mayor, Councillors & Citizens of the Whittlesea City Council, such a finding would be warranted in circumstances where a responsible authority holds the "very definite belief" that the land is or will be required for that purpose, which belief must not be "subject to qualification". > > [27] In this case, as HTV has previously indicated, the ultimate planning for the Corridor has not yet been resolved. A decision has not yet been made in respect of the mode of transport to be delivered within the Corridor, the ultimate land requirements in respect of the Corridor have not been fixed, and funding for the delivery of a transport project has not been allocated. > > [28] This being the case, HTV cannot, without qualification, state that the Corridor "is or will be required" in the sense contemplated by s 98(2). There are steps that need to be taken before its future as a public transport corridor can be confirmed. > > [29] It does not follow, however, that the Corridor Land will not ultimately be required for this purpose. The potential for the Corridor to be utilised for this purpose in the future should not be disregarded by the Tribunal in determining the Development Plan Review and the Permit Review. As the Scheme explicitly contemplates, planning should protect planned and potential transport infrastructure from incompatible land use and development. As addressed in HTV's Hearing Submissions, the strategic planning undertaken in respect of the Corridor unambiguously establishes the Corridor as having this potential, and provides a proper basis to refuse the proposed amendment to the Development Plan (and, in turn, the permit amendment application). > > [30] The Tribunal has previously determined that, if an application for a planning permit is refused on the basis that certain land "may be needed for a public purpose", that is not sufficient to satisfy section 98(2) of the Planning Act. The Court in Fitzwood reached the same conclusion, noting in particular the distinction drawn under the Planning Act between s 99(a), which specifically operates where a permit is refused on the basis that "land is or may be required for a public purpose" (emphasis added), and s 98(2), which operates under the more limited circumstances where a permit "is or will be needed for a public purpose" (emphasis added). > > [31] Accordingly, even if the Tribunal considers that it had the power to determine the Permit Review, there is not a proper basis upon which to make the orders sought by the Applicant. > > [footnotes and bolding omitted]

4. HTV relies on section 98(2A) of the Act, submitting that the Scheme prohibits or otherwise prevents the Permit Amendment Application from being approved, due to its inconsistency with the Development Plan. As such, in the absence of approving the DP Amendment Application, the Permit Amendment Application cannot be approved.

1. The council submits that the Permit Amendment Application is not generally in accordance with the Development Plan.
2. As such, if the DP Amendment Application is not approved, the Permit Amendment Application must be refused on the basis that it is not generally in accordance with the Development Plan, and not on some other ground such as that part of the review site is or may be needed for a public purpose.[23]
3. The council submits that, put another way, in order for the Tribunal to refuse the Permit Amendment Application on the basis that the review site is or will be, or is or may be, required for a public purpose, the Tribunal must first form the view that it would have granted the Permit Amendment Application but for the public purpose, and then the Tribunal must refuse the Permit Amendment Application.[24] However, the council contends that the Tribunal cannot form that view because of the jurisdictional fact of the Permit Amendment Application not being generally in accordance with the Development Plan.[25]
4. The council concludes:[26]

[46] As submitted earlier, to proceed to a consideration of whether the land is or will be (and is or may be, for that matter) required for a public purpose assumes that there is an ability to consider the merits of the matter. Absent jurisdiction, there is no such ability. > > [47] It would be different in a case which did not have a higher level document such as a development plan or a precinct structure plan in place, where the jurisdiction of the decision maker under the relevant planning control was expressly limited to whether there was general accordance or otherwise. In that event, without such a prohibition in place, the Tribunal would be able to consider the questions. But not in this case.

1. The applicant submits that its position has been, and remains, that the Tribunal cannot approve the Permit Amendment Application unless it first approves the DP Amendment Application.[27]
2. Further, the applicant submits that due to HTV's submissions regarding the need for the public transport corridor, the Tribunal does not need to consider section 98(2) of the Act at all:[28]

1. On the question of whether the Tribunal can or needs to consider whether the corridor land "is or will be needed for a public purpose" for purposes of sections 98(2) and 99(d) of the P&E Act, the Applicant expressly stated that the question would only arise for consideration by the Tribunal where HTV (or Council) provided factual confirmation that the corridor land would be so needed. In its submissions, HTV has, for the first time, admitted that it cannot give unqualified confirmation that the corridor land is or will be needed for the Public Transport Corridor, as the necessary planning has not been undertaken; to put that admission another way, at the present time there is only a hypothetical potential that the corridor land will be needed, and it is equally likely that it will not. This is the confirmation that the Applicant has been seeking since November 2023. The effect of that admission is that, as noted by the Applicant in the December Submissions, the Tribunal does not need to consider section 98(2) (and related matters) at all.

3. The applicant's submissions[29] included the following comments:[30]

[13] The relevance of the second question to the Tribunal's consideration of the Applications was wholly dependent on whether or not HTV asserted (and satisfied the Tribunal) as a matter of fact that the corridor land is or would be needed for the Public Transport Corridor. The Applicant has always approached the relevance of sections 98(2) and 99(d) of the P&E Act to the Applications on this conditional basis.

[17] While, given the admission made by HTV, the Tribunal does not need to decide the point, the Applicant notes that HTV does not appear to take issue with the principle that the Tribunal is empowered to refuse an application on the ground that the relevant land "is or will be needed for a public purpose", such as to enliven a compensation right under section 99(d) of the P&E Act.

[footnotes omitted]

1. The applicant refers to HTV's acknowledgement that it cannot confirm that the land will be needed for a public purpose. With this admission of HTV, the applicant concurs that there is no dispute that the factual basis necessary for the second question to be considered by the Tribunal does not arise and that this disposes of the second question.

1. Notwithstanding the parties' agreement that there are no longer any questions of law in contention or requiring answers from the Tribunal, it is appropriate for us to briefly address the key matters raised by those questions.
2. In relation to question a) as referred to by the Applicant and HTV (and in effect, question 2 of the council) we agree that if we refuse the DP Amendment Application, we cannot approve the Permit Amendment Application.
3. This is because clause 43.04 of the Scheme requires that a permit must be generally in accordance with an approved development plan. The proposed changes to the Permit sought through the Permit Amendment Application can only occur if the Development Plan is amended through the DP Amendment Application. This is because the changes sought to the Permit through the Permit Amendment Application result in the Permit not being generally in accordance with the Development Plan.
4. That the Permit Amendment Application is not generally in accordance with the Development Plan is common ground between the parties. As such, our consideration of the merits of the applications must first turn to the acceptability of the DP Amendment Application.
5. It is only if we approve the DP Amendment Application that we would consider the merits of the Permit Amendment Application.
6. If we refuse the DP Amendment Application, we must, by logical extension, refuse the Permit Amendment Application. This is due to the operation of the DPO9.
7. Again, based on the material before us, the parties agree that this is the correct course of action.
8. We observe that the council refused the DP Amendment Application on the basis that the changes are inconsistent with the Scheme's Municipal Planning Statement ('MPS') and Planning Policy Framework ('PPF').
9. For reasons of merit we explain below, we find that the changes proposed in the DP Amendment Application are not consistent with the DPO9 requirements for the Development Plan to be consistent with policies of Scheme and integration with future development on adjoining properties. The DP Amendment Application, therefore, does not constitute orderly planning as required by the objectives of the Act.
10. It is therefore not necessary to explore if the Permit Amendment Application is unacceptable for any other reason, because it is unacceptable on the basis that it is not generally in accordance with the Development Plan.
11. For this reason, in these factual circumstances, the question of whether the part of the review site that is shown in the Development Plan and the Permit as being for the ENTC is or will be, or is or may be, required for a public purpose, does not arise. We say this because:
    1. If we approve the DP Amendment Application, then this will result in removal of the references to the ENTC that are in the Development Plan. If the Permit Amendment Application is then either approved or refused, logically this will not involve consideration of the ENTC because that will no longer be referred to in the Development Plan; and
    2. If we refuse the DP Amendment Application, then we must refuse the Permit Amendment Application on the basis that the Permit Amendment Application is not generally in accordance with the Development Plan. That is, the Permit Amendment Application will be refused on the basis of the absence of a jurisdictional fact, and the question of whether part of the review site is or will be, or is or may be, required for a public purpose, will not be the reason for refusal.
12. Accordingly, for the reasons explained above, it is unnecessary in the circumstances to say more about question b) as put by the applicant and HTV (being question 1 posed by the council).
13. For the foregoing reasons, in summary the Tribunal's answers to the questions are as follows:
    1. Question

If the DP Amendment Application is not granted, can the Tribunal refuse to grant the Permit Amendment Application on the basis that the land is or will be needed for a public purpose, or does the jurisdictional fact of the Approved Development Plan coupled with the prohibition in the control at clause 43.04-2 of the Whittlesea Planning Scheme deny the Tribunal jurisdiction?

The Permit Amendment Application is not generally accordance with the Development Plan. If the DP Amendment Application is refused, the jurisdictional fact of the Development Plan, coupled with the prohibition in the control at clause 43.04-2 of the Scheme, denies the Tribunal jurisdiction to assess the merits of the Permit Amendment Application or refuse it on any other basis.

Assuming that the DP Amendment Application is not granted, can the Tribunal refuse to grant the Permit Amendment Application on the basis that the land is or may be needed for a public purpose or does the jurisdictional fact of the Approved Development Plan and the prohibition in the control at clause 43.04-2 of the Whittlesea Planning Scheme deny the Tribunal jurisdiction?

The Permit Amendment Application is not generally accordance with the Development Plan. If the DP Amendment Application is refused, the jurisdictional fact of the Development Plan, coupled with the prohibition in the control at clause 43.04-2 of the Scheme, denies the Tribunal jurisdiction to assess the merits of the Permit Amendment Application or refuse it on any other basis.

Does the Tribunal have jurisdiction to amend Planning Permit 718021 if it disallows the Development Plan Review?

In the circumstances of VCAT Application P526/2023 and VCAT Application P852/2023, no.

If the Tribunal upholds the decision of the Whittlesea City Council (Responsible Authority) to refuse to amend the Permit, is it open to the Tribunal to do so on the ground that the Subject Land "is or will be needed for a public purpose" within the meaning of section 98(2) of the Planning and Environment Act 1987 (Vic) (Planning Act)?

In the circumstances of VCAT Application P526/2023 and VCAT Application P852/2023, no.

First, if the Tribunal refuses to amend the Development Plan, can it amend the Permit as proposed?

In the circumstances of VCAT Application P526/2023 and VCAT Application P852/2023, no.

Second, can the Tribunal refuse to amend the Development Plan (and Permit) on the basis that the corridor land is or will be needed for a public purpose (for purposes of sections 98(2) and 99(d) of the P&E Act)?

In the circumstances of VCAT Application P526/2023 and VCAT Application P852/2023, no.

SHOULD THE DP AMENDMENT APPLICATION BE APPROVED?

1. We have not allowed the DP Amendment Application because we find that the changes sought through the DP Amendment Application are not acceptable. In summary, we say this for the following reasons:

1. The DPO9 requires a development plan to be consistent with local and State policy. It also requires development to integrate with future development on adjoining properties. 2. We find that the combined effect of the State and local planning policy is an intention that a document such as the DP Amendment Application should both: 1. acknowledge that Lot F is the location of the ENTC, being identified potential transport infrastructure; and 2. seek to ensure that use and development of the review site is planned so as not to prevent the presence of or make it impossible for the ENTC to potentially or possibly be developed in the future.

1. The proposed removal of all references to the ENTC in the DP Amendment Application is not consistent with the directions of the DPO9 for a development plan to be consistent with planning policies.

1. The DP Amendment Application does not sufficiently demonstrate how the amended Development Plan would integrate with future (and existing) development of the adjoining sites as is necessary to implement the requirements of DPO9.
2. Having made this finding, we do not need to examine the merits of the Permit Amendment Application.
3. Our reasons follow.

What is the statutory context for assessing the DP Amendment Application?

1. The DP Amendment Application is to be assessed in the context of what is required by DPO9, which includes consideration of the general decision guidelines of the Scheme at clause 65.01, as appropriate. This includes:
   1. the MPS and PPF;
   2. the objectives of the Act, including, the orderly planning of the area.
2. Clause 43.04-4 of the Scheme specifies that a development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages. It sets out that a development plan must describe:
   1. The land to which the plan applies.
   2. The proposed use and development of each part of the land.
   3. Any other requirements specified for the plan in a schedule to this overlay.
3. This same clause also sets out that a development plan may be amended to the satisfaction of the responsible authority.
4. Requirements for a development plan set out in DPO9 state:

Clause 4.0 'Requirements for development plan' of Schedule 9 to the DPO states that a development plan must show[31]:

• The overall pattern of use and development
• Consistency with Local Planning Policies.
• A road system capable of servicing the needs of the area.
• Accommodation of a mix of industrial uses, with a description of the types of uses that are preferred and having regard to servicing issues, employment generation and buffering requirements.
• Access to the existing road network and provision for future access to adjoining properties.
• Integration with future development on adjoining properties.
• Staging to ensure appropriate physical infrastructure to serve the needs of each stage in the subdivision.
• Provision for the siting of buildings, car parking, landscaping and building materials and form.
• Adequate provision for the protection and enhancement of natural features such as waterways and trees.

What changes are sought through the DP Amendment Application?

1. The applicant seeks to make a number of changes to the Development Plan. In its submissions, it sets out that these include:

a) Section 3.1: Updating the description of the subject land to reflect changes since 2018. > > b) Updating plans and aerial images. > > c) Section 3.2: Updating the description of the surrounding land use context to reflect changes since 2018. > > d) Section 4.0: Updating references to planning policy and strategic documents, to reflect changes since 2018. > > e) Section 6.0: Updating plan to remove annotation of transport corridor. > > f) Section 6.2: > > 1. Updating land-use plan to remove annotation of transport corridor. > 2. Minor adjustments to the accompanying text. > 3. Deletion of a paragraph that previously stated: "Designation of the future Wollert train line extension is incorporated in the development plan transecting the land through the south and west property boundary." > > g) Section 6.3: > > i) Updating plan to remove annotation of transport corridor. > > ii) Minor adjustments and additions to accompanying text. > > iii) Deletion of three paragraphs from section 6.3.

2. The three paragraphs proposed to be deleted from section 6.3 are the three paragraphs we have set out in paragraph 48 of our reasons above.
3. Minor adjustments to text in section 6.4 are also proposed. No 'tracked changes' version between the two documents was provided but from our review of the existing and proposed documents, the changes proposed to section 6.4 appear to be inconsequential and not of relevance to the issues in dispute.
4. The proposed changes to policy assessment partly go to updating other policy references to reflect changes to the Scheme since the Development Plan was prepared and approved. This includes changes that convert what was the Municipal Strategic Statement ('MSS') and associated Local Planning Policies at clauses 21 and 22 that existed in 2018 to what is now referred to as the MPS at clause 02, with local policies transferring to corresponding State policies of a broader PPF at clauses 11-19 of the Scheme.
5. The key policy wording change sought is to delete any reference to current transport policy of the Scheme in the Development Plan and any requirement to address transport policy.
6. In addition to the text changes, changes are also made to some diagrams. These include updating some of the policy context diagrams. The key diagram change is to change what is currently identified as the ENTC in the Development Plan to become designated 'industrial / commercial area' as set out in Figure 7 of our reasons (see earlier section of our reasons).

1. It is common ground between the parties that there is no Public Acquisition Overlay ('PAO') or similar planning mechanism applying to the review site that requires the ENTC to be reserved on the review site.
2. The council and the HTV also acknowledge that there is no ability to force the transfer of land for the ENTC at no cost, or require acquisition of the ENTC as, absent the application of the PAO to the review site, there is no provision in the Scheme to do so.
3. It is also common ground that in assessing the DP Amendment Application, the requirements for a development plan as contained in the DPO9 are particularly relevant.

1. The applicant's submissions draw a clear contrast between the absence of reference to the ENTC in the DPO9 and other DPOs in the Scheme, such as the DPO14 that applies to the adjoining land to the west, that specifically refer to it. The DPO14 includes a requirement that a development plan must include a plan or set of plans which show or include, amongst other things:

A Public Transport Corridor of a width of at least 27 metres, in accordance with the alignment for the Epping North Public Transport Corridor as prepared by the Department of Infrastructure.

1. The applicant submits that given HTV has acknowledged that the ENTC cannot be identified as being needed for a public purpose, there is no planning reason to refuse the DP Amendment Application. That is, there is no planning reason why it is unacceptable for the ENTC area to be changed to an industrial/commercial area, consistent with its IN1Z zoning, and then subdivided into the proposed eight industrial/commercial lots.
2. The applicant submits that the content of the local policy of the Scheme is insufficient to direct the specific requirements set out on page 20 and 21 of the Development Plan. This is particularly given the 'relevant authority' is not defined in either the Development Plan or the DPO9 and again that there is no acquiring authority or mechanism in place for the land to be acquired.
3. The applicant also submits that while there is strategic direction at clause 02.03‑8 to set aside land for public transport, the council and the State government has had 20 years to do this since the concept of the ENTC was first mooted via the Epping North Structure Plan in 2001, yet no acquisition overlay or similar mechanism has occurred.
4. The applicant relies on the evidence of Mr Negri. His evidence is that in the absence of any statutory planning mechanism that requires the reservation of the ENTC, the changes sought through the DP Amendment Application are appropriate.
5. Mr Negri's evidence is that:
   1. Strategic planning documents have been prepared for the City of Whittlesea and show the ENTC traversing the south-west corner of the review site but his review of the Scheme is that it does not include any statutory provisions to implement the project on the review site;
   2. Schedule 9 to the DPO does not include a requirement that the 'transport corridor' be set aside. Nor is there any other specific direction in the Scheme that requires the ENTC to be shown on a development plan;
   3. In response to questions put to him, he acknowledges that 'setting aside' in the context of the policy framework can be a strategic setting aside of the land, rather than a reservation of the land. Further that a strategic setting aside of land could be achieved through different ways, although the preferrable way is to apply a PAO;
   4. The application to remove the ENTC from the review site supports the council's aims to plan for employment growth as it nominates additional land for industrial/employment activity. His evidence is that this is consistent with clause 02.03-7 of the MPS regarding economic development and local polices at clauses 17.02 and 17.03;
   5. He acknowledges there is strategy at clause 18.02-3L to establish the ENTC but reiterates that there is no reservation in place for the ENTC;
   6. The proposed changes in the DP Amendment Application provide a road layout that does not interrupt the possibility of the ENTC and can provide vehicle access to the industrial estate with or without the ENTC;
   7. The changes arrange lots to back onto the part of the land that has been identified for the ENTC so therefore does not jeopardise the future possible acquisition of the ENTC over the review site.
6. The applicant also submits that the existing wording of pages 20 and 21 of the Development Plan was not proposed by the applicant, but rather was required to be added as a condition of the Development Plan being approved at the council meeting on 3 July 2018. A copy of relevant pages of the Council agenda and recommendation were provided to support this proposition.
7. In terms of the criticism levelled by the council (and HTV) that the DP Amendment Application is contrary to orderly planning, the applicant submits as follows:[32]
   1. As detailed above, the Panels in C12 and C130 were highly critical of the absence of a PAO to secure the Public Transport Corridor, on the basis that it was contrary to the principles of orderly planning simply to nominate land apparently required for a public purpose at an indeterminate stage in the future, without securing it via that mechanism.
   2. Yet here the principles of orderly planning are invoked in support of the ongoing sterilisation of the corridor land without any evident intention to take on the burden of funding the acquisition and maintenance of that land.
   3. To reserve land by stealth, without either compensation or the ability to use and develop that land before it is actually required, is an inappropriate and unacceptable approach to strategic and statutory planning. It is also an approach that is grossly unfair to the affected landowner, who would be required to bear the burden of maintaining and securing land ultimately for a public purpose, in circumstances where there is no manifest intention of any relevant authority to acquire that land. That approach improperly transfers what is a public obligation to a private landowner. It is an approach that should be squarely and expressly rejected by the Tribunal.

1. The HTV strongly opposes the DP Amendment Application. This is on the basis that the removal of the ENTC designation on the review site from the Development Plan is inconsistent with:
   1. The North Growth Corridor Plan 2012 ('NGC Plan') and the strategic planning context; and
   2. Transport related planning policy.[33]
2. The NGC Plan is a reference document in the Scheme. It is part of a suite of plans that set the strategic direction for future urban development in the growth corridors over 30-40 years.
3. The NGC Plan contains an intention to extend the northern region's public transport networks into the north growth corridor to enable future residents and workers to enjoy a similar level of accessibility to those persons living and working in established parts of the north.[34]
4. The following is an extract of a plan from the NGC Plan taken from HTV's submission, where the review site is identified with a red arrow.

1. As can be seen from this extract, the review site contains both the 'Principal Public Transport Network' and the 'High Capacity Public Transport' designation in the location of the ENTC.
2. HTV submits that:[35]

...the opportunity to provide a transport corridor to the northern growth area will be lost, or at the very least impeded, if the Approved DP is amended to delete the Transport Corridor.

1. The HTV refers to a variety of strategic planning documents that apply to land proximate to the review site, that address or provide for the ENTC in some way.
2. Having regard to the content of these other documents, the HTV submits that it would be contrary to proper and orderly planning to allow the DP Amendment Application because it removes the ENTC designation from the review site.
3. Further, the HTV submits:[36]

Needless to say, the absence of a current commitment in respect of the form of transport mode and transport project delivery is not reason to amend the Approved DP such that the land nominated for future transport infrastructure is removed. To do so without a broader strategic review would be poor planning.

1. In short, the HTV submits that the DP Amendment Application is not consistent with transport related planning policy in the Scheme, specifically:
   1. Clause 02.03-8 'Transport' that aims to support an integrated transport system by, among other things, setting aside land in the early stages of development to accommodate the extension of existing heavy and light rail services, whereas the DP Amendment Application will remove connectivity between suburbs and the opportunity to service Wollert using the ENTC;
   2. Clause 02.04-1 'Municipal framework plan' and clause 02.04-7 'Integrated transport plan', which show the ENTC as the 'E6 transport corridor';
   3. Clause 11.03-2S 'Growth areas', which seeks to implement the growth area framework plans whilst the DP Amendment Application seeks to replace the ENTC designation with 'industrial/commercial area';
   4. Clause 18.01-1S 'Land use and transport integration', as the changes sought do not protect identified potential transport infrastructure from being precluded from land use and development;
   5. Clause 18.01-2S 'Transport system', which seeks to facilitate and develop an integrated and efficient transport system;
   6. Clause 18.01-3S 'Sustainable and safe transport' as it impedes the transport system efficiently using land, where the DP Amendment Application removes the ENTC designation and replaces it with 'industrial/commercial area';
   7. Clause 18.02-3L 'Public transport' as it frustrates facilitating the reservation of the ENTC between Lalor and Wollert.
2. HTV made submissions regarding the meaning of various terms used in the policy in the Scheme upon which it relies.
3. Finally, HTV submits that any policy support that is enjoyed by the DP Amendment Application by virtue of its allocation of land for industrial purposes is outweighed by the policy in favour of retaining the ENTC designation on the review site.

1. The council relies on a number of plans and strategies that apply to the areas surrounding the review site and submits that:[37]

...it is abundantly clear that the provision of a public transport corridor from Epping through to Wollert has been the purview of strategic planning at State, regional and local levels for some time as is normally the case with such projects.

1. As such, the council submits that it is 'difficult to conceive of a more clear and consistent strategy in a growth area'.[38]
2. The council submits that the significant growth which has occurred in the wider area has been planned, not only so as not to encroach upon the ENTC, but to facilitate it. In support, the council prepared the following plan that shows the location of surrounding strategic plans.[39]

By its very nature, the functionality of a public transport corridor is reliant upon its contingent parts. Any failure to plan for a portion of the infrastructure, whether great or small, renders the overall strategy questionable.

1. The council also highlights that, in its view, the ENTC is largely reflected on the ground, when one considers aerial photography of the land along the length of the ENTC.
2. As did the HTV, the council also relies upon clauses 02.03-8, 02.04-1 and 18.01-1S.
3. In addition, the council relies upon:
   1. Clause 02.03-1 'Settlement' in terms of the aspiration for the council to provide opportunities for mixed use and employment centres that are aligned with public transport, and, to avoid compromising longer‑term strategic approaches to allocation of land uses through incremental decision-making;
   2. Clause 18.01-1L 'Land use and transport planning' for the additional strategies that it identifies in respect of transport planning; and
   3. Clause 65.02 'Approval of an application to subdivide land' that points to consideration of the possible future development of the land and nearby land, and, the impact that development will have on the current and future development and operation of the transport system.
4. The council also made submissions regarding the meaning of various terms used in the policy in the Scheme upon which it relies.
5. In context of the Scheme and the policies that use the term 'set aside', the council submits that:

It is of some note that the policy does not speak of the reserving of land but rather the setting aside of the land. The Council is not responsible for acquisition of land for the transport corridor and cannot commit the State to that. But consistent with policy it can plan by setting aside land for that purpose by clearly showing it in relevant plans and explaining the strategy in relevant policy. Council has done all of this. [41]

1. As to the absence of the PAO over the review site, the council submits that this is a matter for the relevant planning authority.
2. The council submits that a development plan is an appropriate document in which to identify strategic documents for reasons including that this aligns with the first purpose of the DPO9, being to implement the MPS and PPF.

Do the changes meet the requirements of the DPO9?

1. The key question for us to determine is whether the changes sought through the DP Amendment Application meet the requirements of the DPO9 and are, therefore, acceptable.
2. The DPO9 sets out a number of requirements, as we have already set out. Two limbs of the requirements set out are in contention between the parties. These are whether the DP Amendment Application shows:
   1. Consistency with Local Planning Policies; and
   2. Integration with future development on adjoining properties.
3. We agree that these are the two key elements for a development plan under the DPO9 that require detailed examination in this proceeding.
4. Therefore, below we examine the DP Amendment Application, and specifically the changes sought to section 6.0 of the Development Plan, in terms of both of the DPO9 requirements in context of the broader policy and MPS context.
5. We undertake this assessment of the DP Amendment Application in the context of the following observations:
   1. There is no PAO on the review site;
   2. There is no voluntary agreement entered into with an acquiring authority with respect to the review site; and
   3. The fact that the Development Plan exists in its current terms is not a reason that it cannot be changed.
6. We briefly expand on each of these observations below, before discussing the two identified limbs of the DPO9 requirements.

1. The purposes of a PAO include the identification and reservation of land that is proposed to be acquired for a specified purpose and the designation of an acquiring authority for that acquisition.
2. The imposition of a PAO occurs through an amendment to the Scheme. That process provides affected persons with the ability to make submissions with respect to the intended imposition. It also provides transparency of an acquiring authority's intent, for the benefit of current and prospective landowners.
3. The inclusion of land in a PAO has potential financial consequences for an affected landowner and the acquiring authority.
4. As there is no PAO over the review site, the review site cannot be forcibly acquired using that mechanism.
5. Given the PAO exists in the Scheme as a mechanism to facilitate the forced acquisition of land under the Scheme, it is relevant to interpret references in Scheme policy to reserving or setting aside of land mindful of the role of the PAO. That is not to say that 'reserving' or 'setting aside' of land can only occur via the imposition of a PAO, just that those terms must be understood in the context of a Scheme that contains the PAO mechanism. We discuss these terms, below.

There is no agreement entered into with an acquiring authority

1. We agree with submissions made by the council that the PAO is not the only way in which land can be given over to an authority.
2. Another way in which this can occur is by voluntary agreement between a landowner and an authority.
3. During the hearing we were informed by HTV that while previously there had been some discussions between the applicant and HTV regarding a potential transfer of the ENTC area to HTV, no formal offer or agreement was reached between the parties.
4. Further, we were informed that HTV did not participate in the discussions that resulted in the council requiring the current wording regarding the ENTC to be included in the Development Plan, as discussed earlier.
5. In the absence of an agreement having been entered into between the applicant and HTV, or even with the council (as an intermediary), there is no voluntary agreement by the applicant to transfer the ENTC area of the review site.

The fact that the Development Plan exists in its current terms is not a reason that it cannot be changed

1. Our role is not to confirm or make a judgment on the correctness of the existing Development Plan. What is before us is whether the DP Amendment Application is appropriate based on the provisions and policies of the Scheme as they stand today.
2. In saying this, we give very little weight to the applicant's submission that the council sought changes to the Development Plan in order to gain its approval in 2018. There would have been opportunity at that time for the applicant to seek a review of the council's decision to approve the Development Plan on those terms. The applicant did not seek such review.[42] It is not for us to determine if the council's decision in 2018 to only approve the Development Plan on those terms was correct.
3. As such, the existence of the Development Plan is just one of the facts that is before us for consideration.

Does the DP Amendment Application show consistency with Local Planning Policies?

1. The DPO9 requires that a development plan must show consistency with Local Planning Policies. But in the context of the current provisions of the Scheme, what does this mean?
2. All parties referred us to a number of policies in the current Scheme, as we have discussed above. The most detailed submission related to the consideration of transport policies, as well as economic development policy. We agree that these two themes of policy are the most relevant to the issues before us.
3. In examining these Local Planning Policies we do so in context that Schedule 9 to the DPO was established prior to the introduction of the current Scheme[43].
4. In 1999, 'Local Planning Polices' was a term of the Scheme referring to local policies set out at what was then clause 22 of the Scheme. These were to be read in conjunction with the MSS that was at clause 21 of the Scheme.
5. On 31 July 2018, through Amendment VC148, the Victorian Planning Provisions were amended to restructure the format of planning schemes across Victoria to include an MPS at clause 02 and create schedules to state policy at clauses 11 to 19, to incorporate local policy into a broader PPF.
6. Amendment C239wsea was then gazetted on 27 May 2019 changing some of the schedules to the Scheme to accord with changes in the PPF through Amendment VC148. The explanatory report to Amendment C239wsea acknowledged that the amendment 'does not rectify inaccuracies and inconsistencies in local schedules that require extensive research and public consultation to determine the outcome or suitably of the change to the schedule. Therefore, there still may be parts of schedules that are non‑compliant with the Ministerial Direction on the Form and Content of Planning Schemes'.
7. On 18 December 2020, Amendment C250wsea updated the Scheme to re-locate local policy previously in clauses 21 and 22, to the MPS at clause 02 and PPF at clauses 11 to 19, in accordance with the updated Victorian Planning Provisions from Amendment VC148.
8. Presently, clause 71.01-1 of the Scheme states that 'a responsible authority must take into account and give effect to the Municipal Planning Strategy when it makes a decision under this planning scheme'. Clause 71.02-2 then sets out that 'a responsible authority must take into account and give effect to the Planning Policy Framework when it makes a decision under this planning scheme. This does not apply to policy guidelines and policy documents.'
9. Consistent with the principles of statutory interpretation, we find that the DPO9 reference that a development plan be consistent with 'Local Planning Policies' can be interpreted as policies previously at clause 22 and now located as local policies within the PPF, at clauses 11 to 19.
10. In addition, the head clause of the DPO9 also has as its purpose that a development plan is to implement the MPS and PPF. We therefore find that a development plan prepared pursuant to the DPO9 must be consistent with both the MPS and the PPF, with particular reference to the local policy elements of the PPF, given these derive from the Local Planning Polices previously in clause 22 of the Scheme.
11. Further, given this directive in the head clause for a development plan to implement the MPS and PPF, it is clear that a development plan prepared pursuant to the DPO9 must also implement State and regional policies, to the extent relevant.
12. Accordingly, in assessing the DP Amendment Application we have turned our mind to relevant planning policy that is both at a local level and also at a State and regional level.

1. Clause 02.03-8 'Transport' of the MPS sets out that:

Council supports the development of communities where people and businesses are connected within the municipality and with the rest of Melbourne to access jobs, services and business opportunities. The need for integrated transportation systems is heightened within the municipality where there is currently a lack of north-south road capacity beyond the municipal boundaries and few options for uninterrupted east-west travel.

Council aims to support an integrated transport system by:

• Setting aside land in the early stages of development to provide for long term roads and public transport to be established.
• Providing a high level of connectivity within and between subdivisions to enhance the effectiveness of transportation networks.
• Servicing the higher order activity centres of Epping, Plenty Valley (South Morang), University Hill, and in the future Mernda, Wollert and Donnybrook by high capacity rail and by good access to the arterial road network.
• Locating smaller neighbourhood centres so they are served by local public transport.
• Facilitating sustainable modes of transport.

Planning for the extension of the existing heavy and light rail services remains essential to the ultimate successful integrated development of the City.

Council aims to facilitate this by setting aside land to:

• Accommodate the extension of the existing heavy and light rail services while planning for beneficial land uses close to interchanges and routes.
• Introduce a public transport corridor to Wollert, together with road infrastructure that supports trunk bus services.

1. Transport local policy at clause 18.02-3L includes strategies to:
   • Facilitate the reservation of a public transport corridor between Lalor and Wollert.
   • Integrate development with the future heavy rail corridor between Mernda and Whittlesea Township and between Lalor and Wollert in a way that does not prejudice their viability.
   • Design railway corridor so that it enhances movement, linkages across and along the rail corridor.
2. We summarise these policies as directing:
   1. Land should be 'set aside' in the early stages of development to provide for long term roads and public transport to be established;
   2. Sustainable modes of transport are to be facilitated;
   3. Planning of the extension of the existing heavy rail services is essential to the ultimate successful integrated development across the municipality;
   4. There is an aim to 'facilitate' heavy rail through a public transport corridor to Wollert, with local policy at clause 18.02-3L being to 'facilitate the reservation of a public transport corridor between Lalor and Wollert';
   5. Development should 'integrate' with the future heavy rail corridor between Lalor and Wollert in a way that does not prejudice its viability.

1. Land use and transport integration policy at clause 18.01-1S includes strategies to:

• Protect existing transport infrastructure from encroachment or detriment that would impact on the current or future function of the asset.
• Protect transport infrastructure that is in delivery from encroachment or detriment that would impact on the construction or future function of the asset.
• Protect planned transport infrastructure from encroachment or detriment that would impact deliverability or future operation.
• Protect identified potential transport infrastructure from being precluded by land use and development.

Plan land use and development to allow for the ongoing improvement and development of the State Transport System in the short and long term.

...

Plan improvements to public transport, walking and cycling networks to coordinate with the ongoing development and redevelopment of urban areas.

Plan the use of land adjacent to the transport system having regard to the current and future development and operation of the transport system.

Reserve land for strategic transport infrastructure to ensure the transport system can be developed efficiently to meet changing transport demands.

1. Public transport State policy at clause 18.02-3S includes strategies to:

• Integrate with land use and development in outer suburban and growth areas.

Support development that facilitates the delivery and operation of public transport services.

1. There is economic development policy at clauses 02.03-7 and 17.01-1L with an economic development framework plan at clause 02.04-6. We agree with the evidence of Mr Negri that the Development Plan also needs to align with these policies.
2. Strategic direction at clause 02.03-7 includes that:

Council aims to plan for employment growth in the municipality by:

• Providing a greater balance between housing supply and employment opportunities.
• Supporting economic activity that is responsive to the investment and employment needs of the community, has respect for the environment and is resilient to changes in the economic climate.
• Increasing the choice and location of land available for employment generating activities particularly in locations with easy access to residential areas or in and around activity centres.
• Achieving a high level of self-containment by identifying employment land in precinct structure planning and development plans.

1. The following extract of the Economic development plan contained in clause 02.04-6 of the MPS refers to 'future rail line' with an asterisk and a note 'Future project dependent on State Government'. The same description and notation is present in the Municipal framework plan at clause 02.04-1 and the Integrated transport plan at clause 02.04-7 of the Scheme.

1. The Economic development plan aligns with the transport policy directions of clause 02.03 and clause 18.02-3L and the Integrated transport plan at clause 02.04-7.
2. Diversified economy policy at clause 17.01-1L affirms 'support the allocation of employment growth in Thomastown, Epping, Bundoora and South Morang.' The site is also within the Cooper Street Employment Area where employment generating industries 'with an emphasis on the food industry, freight, logistics, office, research and development, high technology, manufacturing and industrial uses' is supported.
3. The amendments sought through the DP Amendment Application do not seek to remove reference to economic development policy.

1. In order to determine whether the DP Amendment Application meets the requirements of the DPO9, we need to understand what the Scheme's policies seek with regards to the ENTC.
2. At a State policy level, what is sought by clause 18.01-1S in terms of planning land use and development depends on where the ENTC falls in the hierarchy of transport infrastructure.
3. The council submits that the ENTC is 'in delivery' and so the appropriate strategy is to plan land use and development to:
   • Protect transport infrastructure that is in delivery from encroachment or detriment that would impact on the construction or future function of the asset.
4. By contrast, HTV submits that the last tier of the hierarchy applies to the ENTC, that being to plan land use and development to:
   • Protect identified potential transport infrastructure from being precluded by land use and development.
5. We expect HTV will ultimately be responsible for the ENTC. We therefore give considerable weight to its view about the appropriate designation of the ENTC in the State policy hierarchy. As HTV acknowledged, ultimate planning for the ENTC has not yet been resolved. The State government has not yet made a decision in respect of the mode of transport to be delivered within the ENTC and the ultimate land requirements for the ENTC have not been fixed. Funding for the delivery of the ENTC as a transport project has also not been allocated.
6. We therefore agree that the ENTC is not a project that is 'in delivery'. We find the ENTC is a project that constitutes 'identified potential transport infrastructure'.
7. We regard this broad classification of the ENTC as 'identified potential transport infrastructure' to be important because it indicates the level of certainty that is to be given to the project: the ENTC is 'identified' in the Scheme but with the qualifier of it being 'potential' transport infrastructure.
8. The ordinary meaning of 'potential'[44] includes:

adjective 1. possible as opposed to actual.

2. capable of being or becoming; latent.

1. Hence, according to HTV, the ENTC is identified as possible transport infrastructure, as opposed to transport infrastructure that is existing, in delivery or even 'planned' (being the third level of the hierarchy in clause 18.01-1S).
2. As such, we find that, in this respect, clause 18.01-1S seeks for the use and development of the review site to be planned to protect identified potential transport infrastructure (including the ENTC) from being precluded by land use and development.
3. As to what is meant by 'precluded', this takes its ordinary meaning, given it is not defined in the Scheme or the Act.[45]
4. The Macquarie Dictionary[46] defines 'preclude' as follows:

verb (t) (precluded, precluding)

1. to shut out or exclude; prevent the presence, existence, or occurrence of; make impossible.

2. to shut out, debar, or prevent (a person, etc.) from something.

1. Given the above, we find that the policy objective to protect the ENTC from being 'precluded' by use and development on the review site means that any proposed use and development of the review site should not exclude, prevent the presence of or make it impossible for the ENTC to be developed in the future.
2. In summary, we find that the State policy in clause 18.01-1S seeks to ensure that the use and development of the review site is planned so as not to prevent the presence of or make it impossible for the ENTC to potentially or possibly be developed in the future: to protect the possibility that it might be developed in the future.
3. At a local policy level, clause 02.03-8 refers to the council aiming to support an integrated transport system by 'setting aside' land in the early stages of development to provide for public transport to be established.
4. Clearly, this policy is directed at the council and not an individual landowner.
5. However, the DPO9 seeks for a development plan to be consistent with local policy. To this end, the DP Amendment Application should support the 'setting aside' of land in the early stages of development to provide for public transport to be established, in order for the development and use of component parts of the ENTC to be consistent with the council's aims pursuant to clause 02.03-8.
6. It is common ground between the parties that neither the Scheme nor the Act defines what it means to 'set aside' land.
7. The Macquarie Dictionary[47] defines 'set aside' as a form of the word 'set', as follows:

99. set aside,

a. to put to one side.

b. to discard from use.

c. to dismiss from the mind.

d. to annul or quash: to set aside a verdict.

1. Having regard to the ordinary meaning of the term 'set aside', in the context of the policy in the Scheme we find that this term means that when the review site is being developed, the land for the ENTC should be 'put to one side'.
2. We find that this means that development of the review site should occur mindful of the ENTC, which exists as an identified possibility in the Scheme and in reference documents but is neither planned nor an actuality.
3. In practice, we find that this means that in the early stages of development - for instance, in a development plan prepared under the DPO9 - the ENTC area should be shown as the identified potential transport infrastructure that HTV says it is.
4. This makes sense because there is then transparency at the outset as to there being a planning intention, as expressed in the Scheme and in reference documents, for the ENTC, if it is constructed, to be located in this area.
5. Caution needs to be exercised in how the ENTC is described in any document, given the qualified way in which it is described in the Scheme as being a future project dependent on the State government.
6. We acknowledge that another ordinary meaning of the term 'set aside' is 'to discard from use'. However, we do not think that this meaning is applicable in the context of the Scheme. We say this because if the ENTC area is discarded from use (or development), this would be even more restrictive than the area being reserved through a PAO, given some use, development and subdivision can still be permitted under a PAO.[48]
7. In any event, we do not think that 'set aside' can even mean reservation in the same way as reservation occurs through a PAO, otherwise the operation of this policy would undermine the role and the application of the PAO to land. As the PAO is the mechanism in the Scheme by which that form of land reservation is to occur, it would not be appropriate for a reference to 'setting aside' of land or even to the strategy to 'reserve land for strategic transport infrastructure'[49] to be akin to reservation through a PAO. If that was the case, it would bypass the mechanism contained in the Scheme for that purpose and, as contended by the applicant, would in effect amount to reservation by stealth.
8. The local policy in clause 18.02-3L seeks to facilitate the reservation of the ENTC.
9. Given this strategy is about 'facilitating' the reservation of the ENTC, this policy is about assisting the progress of the reservation, having regard to the ordinary meaning of the term 'facilitate':[50]

verb (t) (facilitated, facilitating)

1. to make easier or less difficult; help forward (an action, a process, etc.).

2. to assist the progress of (a person): to facilitate the customer to find the right product.

1. Conceivably, facilitating or assisting in the progress of the reservation of the ENTC might involve ensuring that the ENTC is referred to in the Scheme and in reference documents, which might then be used to justify the eventual reservation of the required land. It might also refer to the approach of the council and the acquiring authority in applying the PAO to the required land.
2. In summary, we find that the local policy in clause 02.03-8 seeks to ensure that development of the review site should occur with the ENTC area being 'put to one side', in the sense that there is an acknowledgment that Lot F is the location of this identified potential transport infrastructure.
3. We find that the combined effect of the State and local planning policy is an intention that a document such as the DP Amendment Application should both:
   1. acknowledge that Lot F is the location of the ENTC, being identified potential transport infrastructure; and
   2. seek to ensure that use and development of the review site is planned so as not to prevent the presence of or make it impossible for the ENTC to potentially or possibly be developed in the future.
4. This begs the question as to how to describe the ENTC in the DP Amendment Application and any associated planning permit application.
5. Beyond making our findings as to what we say is the meaning of the words in the relevant policies, it is not our role to 'fix' the DP Amendment Application to accord with what is contained in the Scheme.
6. What we do say, however, is both that a development plan can be a powerful tool, and, the DP Amendment Application does not adequately address the Scheme's policy.
7. As to the first matter, we observe that identifying an item of infrastructure such as a railway corridor in a development plan may have consequences for future land use and development. This is because, depending on other content in the development plan, the area designated for that infrastructure might not be able to be used or developed for anything other than that infrastructure, lest the use or development not be 'generally in accordance with' the development plan, having regard to the provisions of the DPO.
8. For this reason, the words used in a development plan should be chosen carefully, with a mind as to what is sought by the Scheme and to the future operation of the document along with any flexibility that might be appropriate and desired.
9. As to the second matter, the DP Amendment Application is not consistent with and does not reflect the policies in the Scheme because it removes all reference to the ENTC.
10. As we have already set out, the applicant's submission states that changes sought through the DP Amendment Application include 'Section 4.0 updating references to planning policy and strategic documents, to reflect changes since 2018.'
11. The changes we identify to section 4.0 do more than this. Most notably the changes to section 4.0 include removing all references to transport policy.
12. During the hearing, we questioned both Mr Negri and the applicant as to why all transport policy references of the Scheme relating to transport were removed in the DP Amendment Application.
13. Both the applicant and Mr Negri's response was that they were 'agnostic' on this issue. Their view was that they were not opposed to us finding that the transport policy references in the Scheme should be included.
14. Given that the DPO9 requires the development plan to be consistent with local policy, we find it important for all relevant policy that applies to the review site as at the date of the DP Amendment Application to be included.
15. For the DP Amendment Application to be consistent with local policy, the MPS and the broader PPF, we also find that the policy needs to be implemented through the DP Amendment Application. Therefore we find it is insufficient to list the relevant policies as background in the DP Amendment Application. Rather, the DP Amendment Application directions need to reflect and be consistent with the relevant policies of the Scheme.
16. A development plan can, and should, direct the preferred location of uses and development consistent with the requirements of the DPO schedule, which in this case requires consistency with local policies. The relevant polices identify the ENTC and an intention to set aside land for the ENTC.
17. We therefore find that the proposed changes to remove all of the words from pages 20 and 21 relating to the ENTC, and all references to transport policy, is not consistent with the directions of the DPO9 for the DP Amendment Application to be consistent with local planning policies.
18. Any changes sought through the DP Amendment Application should retain consistency with, and implement the policies of the Scheme, notably the relevant sections of clauses 02.03-8 and 18.02-3L as well as clause 18.01‑1S.
19. In short, the DP Amendment Application should not completely disregard or ignore the ENTC. But we also observe that it is important to properly describe what the Scheme seeks and proposes in terms of the ENTC in any development plan prepared under the DPO9.

Does the DP Amendment Application reflect the DPO9 requirement for integration with future development on adjoining properties?

1. The second limb of the DPO9 schedule that was the subject of detailed submission is how the proposed changes through the DP Amendment Application would enable the Development Plan to continue to integrate with future development on adjoining properties.
2. A number of adjoining properties are subject to plans and provisions that accommodate or 'set aside' land for the ENTC.
3. The council took us to extensive material explaining different mechanisms that have been used to give effect to policy and provisions on other sites to establish the ENTC since 2002. This is when the concept of the corridor was first inserted into the Scheme through the Epping North Structure Plan for land north of O'Herns Road.
4. The DP Amendment Application does not fully update the existing surrounding context of the review site. For example, land to the west of the review site is described as being undeveloped in the pages relating to current context. However, this land is now developed as industrial land with a 30 metre wide area that appears to have been set aside for possible future transport purposes. We were advised this land is held in council ownership and marked as a reserve.
5. Similarly land to the south of the review site is now in the ACZ1. We understand from submissions and reading the ACZ1 provisions that this land includes different management techniques to set aside land for the ENTC. By example, we were referred to a permit for subdivision of land within the ACZ1, near the review site that has limited development on lots to create building envelopes outside of the ENTC area. This has been undertaken with the separate and specific provisions of the ACZ1. This current context of adjoining land needs to be identified in any amended Development Plan.
6. As with the consideration of policy, any amendment to the Development Plan needs to not simply acknowledge that changes have occurred to surrounding land but demonstrate how the amended Development Plan could integrate with future development and development already occurring on the adjoining sites.
7. The DP Amendment Application marks the ENTC on the adjoining land in diagrams (see Figure 8 above). However, it does not identify how the DP Amendment Application integrates with this ENTC designation on adjoining land.
8. The applicant responded to our questions on this issue by commenting that the diagram, as we have depicted in Figure 8, maintains consideration of the ENTC by maintaining a black line on the plan in the form of the alignment of the ENTC.
9. We find this is insufficient consideration to the issue of integration.
10. This is because there is no reference in the DP Amendment Application as to what the black line is and no words in the DP Amendment Application to identify that this curved line is to represent the future ENTC. Nor is there any text to direct how land within the black line is to be managed or treated so that it can integrate with other land reserved to the west, and set aside to the south, for the ENTC.

Conclusions on changes sought through the DP Amendment Application

1. We find that any development plan prepared under the DPO9 must reflect and implement the policy directions of the Scheme to 'set aside' land for the ENTC and to integrate with future development, and the existing development, already occurring on adjoining land to the west and south.
2. For the reasons expressed above, we find that the DP Amendment Application does not meet these requirements of the DPO9.
3. On this basis, we find the changes sought through the DP Amendment Application do not constitute orderly planning and therefore the DP Amendment Application is not allowed.

1. We acknowledge that the consequence of our refusal of the DP Amendment Application is that the Development Plan remains in its current, approved form.
2. Based on our above findings, we acknowledge that there might be another attempt to amend the Development Plan. In this context, we provide the following observations:

1. It is unclear to us how the applicant is to implement the existing paragraph at page 21of the Development Plan that requires a specific width of land 'to be transferred to the relevant authority'. No relevant authority is identified and there are also no clear terms or conditions on which that transfer would occur. We note that HTV and the council acknowledge in submissions that neither can direct the transfer of the land at no cost. Nor does either body clearly articulate that it seeks the land to be transferred to them. 2. In the absence of an identified acquiring authority and a clear mechanism for transfer of the land, any amended Development Plan should consider an alternative means of implementing the DPO9 requirements, including: * 'setting aside' land for the ENTC, as directed by clause 02.03-8; * Integrating development with the future heavy rail corridor in a way that does not prejudice the viability of the corridor, as directed by clause 18.02-3L; * Protecting this 'identified potential transport infrastructure' from being precluded by land use and development, as directed by clause 18.01-1S; and * Ensuring that planning for the extension of existing heavy rail is integrated into development of the land.

1. Any amendment sought to the Development Plan needs to explain how these policies to set aside land and integrate development with the future heavy rail corridor are achieved through the amendment.

SHOULD THE PERMIT AMENDMENT APPLICATION BE APPROVED?

1. Given our finding that the DP Amendment Application should not be approved, the Development Plan remains in its current form.
2. It then follows that because we have refused the DP Amendment Application, we must also refuse the Permit Amendment Application.
3. For reasons discussed earlier, this is because the Permit Amendment Application is not generally in accordance with the Development Plan.

1. For the reasons given above, the decisions of the responsible authority in relation to applications P526/2023 and P852/2023 are both affirmed.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] We note that the plan is stamped by the council as the '75 O'Herns Road and 100B Yale Drive, Epping Development Plan'.

[3] Tribunal Book ('TB') page 2419. Noting PAO is a planning scheme term for Public Acquisition Overlay.

[5] As required by regulation 54 of the Planning and Environment Regulations 2015 (Vic).

[6] Before then Member Glynn, sitting alone.

[8] Being Lot A on PS838546F, Lot B on PS 825838P, Lot C on PS838542P, Lot D on PS825838P and Lot F on PS838542P.

[9] Unless a schedule to the DPO specifically states that a permit can be granted before a development plan is prepared to the satisfaction of the responsible authority.

[10] Development Plan, section 6.0.

[13] Tabled by the council via email on 16 May 2024 at our request.

[14] Letter from Breese Pitt Dixon to Council dated 2 May 2022, TB 322.

[15] Overall Development Plan by Breese Pitt Dixon lodged with application dated 2 May 2022.

[16] Tribunal order 14 July 2023, before Member Deidun. Decision unreported.

[17] At that time constituted by then Member Glynn.

[18] Held on 2 February 2024 and constituted by then Member Glynn and Member Whitney.

[19] Outline of submissions on behalf of Head, Transport for Victoria Re: Questions of Law, 12 April 2024, [9(a)].

[23] Outline of submissions on Questions of Law on behalf of the Responsible Authority, 12 April 2024, [7]-[38].

[27] Submissions of the Applicant in reply to submissions on Questions of Law, 26 April 2024, [4(a)(i)].

[32] Submissions on behalf of the applicant, 4 December 2023, [132]-[134].

[33] Submissions on behalf of the Head, Transport for Victoria, [56].

[35] Submissions on behalf of the Head, Transport for Victoria, [58].

[37] Submission on behalf of the Responsible Authority, [143].

[41] Paragraph 146 of the council submission at TB544.

[42] i.e. no review application was brought to the Tribunal to review the decision of the council at that time.

[43] The current scheme commenced on 8 July1999.

[45] Or in the Interpretation of Legislation Act 1984 (Vic).

[46] Macquarie Dictionary, online edition, Pan MacMillan Australia 2024.

[50] Macquarie Dictionary, online edition, Pan MacMillan Australia 2024.