VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST / vcat reference No. P2080/2006
Permit Application no. 3/4885/6100/DP2
APPLICANT / D. C. Lock & Ors
responsible authority / Macedon Ranges Shire Council
SUBJECT LAND / The land bounded by Brooking, Brady and Willowbank Roads and Calder Freeway, excluding the site on the south-eastern corner of Brady and Willowbank Roads which has already received subdivision approval to create 22 new lots.
WHERE HELD / Melbourne
BEFORE / Philip Martin, Member
HEARING TYPE / Section 149 hearing
DATE OF HEARING / 19 and 20 March 2007
DATE OF ORDER / 8 June 2007
CITATION

orders

The proposal is not accepted and the refusal of the Responsible Authority to approve the draft Development Plan is affirmed.

Philip Martin
Member

APPEARANCES:

For Applicant / Ms Julie Davis of Counsel by direct brief. Ms Davis called planning evidence from Mr Peter Jewell, landscape evidence from Ms Fiona Eddlestone, plus Mr Keith Altmann (the project architect) provided an overview/explanation of the proposal.
For Responsible Authority / Ms Maria Marshall of Maddocks lawyers. She called planning evidence from Mr Rob Milner of Coomes Consulting Group.

reasons

EXECUTIVE SUMMARY

1  What is in dispute here is a draft Development Plan prepared on behalf of the Applicant, in relation to all of the land bounded by the following roads – Willowbank, Brady and Brooking Roads plus the Calder Freeway, but excluding the site on the south-eastern corner of Brady and Willowbank Roads which has already received subdivision approval to create 22 new lots (“subject land”). The subject land is about 155 hectares in size, consists of 17 titles and I understand has multiple landowners.[1]

2  The hearing of this matter took place on 19 and 20 March 2007 and I then issued further directions for additional information to be provided to me (which I have taken into account). I have also carried out an inspection of the site and locality. My overall conclusion has been that the density level of the proposal is still so intense as to be fatally inconsistent with broad “orderly planning” principles and also contrary to the key aspects of the Clause 22.02-2 local policy dealing with Gisborne. I have also found that the draft Development Plan inadequately deals with the linkages and potential synergies between the subject land and the balance of Gisborne. Hence I have made orders affirming Council’s refusal to approve the Development Plan.

Introduction

3  The applicant seeks the approval of Macedon Ranges Shire Council for a proposed Development Plan, pursuant to the Development Plan Overlay Schedule 1 (“DPO1”) which affects the subject land.

4  The proposed Development Plan was put before the Council Planning Committee on 9 August 2006, with that Committee subsequently advising the Applicant that Council does not support the draft Development Plan.

5  During the hearing it emerged that there was in fact some uncertainty regarding precisely which documents constitute the Development Plan for which approval is sought, as opposed to mere supporting documents. Hence I made directions dated 27 March 2007 giving the Applicant and Council the opportunity to have further time to seek to reach a common position on what documentation constitutes the proposed Development Plan.

6  In the final result, there was no such consensus, but Mr Altmann subsequently provided me with a bound set of documents which he confirmed (from the Applicant’s perspective) constitutes the draft Development Plan for which approval is sought. As I am satisfied with this outcome, it is this bound set of documents that I have focused on in writing up this decision. I have reproduced further below the index page at the front of these bound documents, confirming the documents relied upon.

7  In summary, the main factors relied upon by council in resolving not to support the Development Plan were as follows.

·  The Development Plan does not adequately address the concerns raised in the previous Tribunal hearing, where Member Fong in her decision dated 3 April 2006 rejected an earlier and similar development plan put forward by the same applicant;

·  The Development Plan does not comply with the requirements of the Gisborne North and Gisborne Outline Development Plan adopted by Council on 22 February 2006, as the Development Plan is inconsistent with various particular requirements of this document adopted by Council on 22 February 2006;

·  The Development Plan (if adopted) would prejudice the future proper planning of the locality, as the Development Plan does not properly provide for the co-ordinated provision of infrastructure or the provision for community facilities;

·  The adoption of the Development Plan without a Development Contribution Scheme in place would prejudice the proper future development of the area.

8  At the Tribunal hearing over 19 and 20 March 2007, I heard submissions from Ms Davis and Ms Marshall, plus I received evidence from the witnesses referred to in the “Appearances” above. As indicated, given the uncertainty about what exactly constitutes the “draft Development Plan”, I made directions after the hearing to seek to clarify this.

9  In addition, as part of the presentation by and cross-examination of the project architect Mr Altmann, there was some concern raised by Ms Marshall that Mr Altmann had in the course of his presentation provided some “population projections information” that Ms Marshall had not had a proper chance to review and potentially test through cross examination. To deal with this, my directions dated 27 March 2007 required Mr Altmann to provide Council with his relevant reference documents in relation to this contentious information, and then gave both parties the chance to comment further on this issue.

10  I have had regard to the follow up information both parties then provided to me in relation to this “population projections” issue.

11  By further directions dated 15 May 2007, I then requested the Applicant to provide me with further information to substantiate Mr Jewell’s assertion (ie as part of Mr Jewell’s evidence presented to the Tribunal) that Standard C6 in the updated Clause 56 of the Planning Scheme does not need to be assessed for this type of proposed subdivision involving over 60 lots.

12  I then received a helpful letter and attachments dated 22 May 2007 from Mr Altmann, which clarified that it is Clause 32.01-2 of the Planning Scheme which provides that this type of proposed creation of over 60 lots does not need to be assessed against Standard C6 in Clause 56 (keeping in mind that the revised version of Clause 56 only came into effect fairly recently). I also received a Maddocks letter dated 25 May 2007, which does not contest that Standard C6 is inapplicable here, but relies on the fact that Standard C5 relating to the “Built environment objective” remains applicable. This 25 May 2007 letter also emphasised the on-going applicability of the various criteria for proposed Development Plans under Schedule 1 to the Development Plan overlay including the need for a development plan to be informed by (amongst other things) “a detailed site analysis of the natural, cultural, and strategic context of the site”.

13  Again I have taken this further May correspondence into account in reaching my final decision.

14  Some time after the hearing, I carried out an inspection of the subject land and locality. This involved driving around the perimeter roads of the subject land, apart from the freeway. In addition, whilst entering and leaving Gisborne on the freeway, I took close note of the interface between the freeway and the subject land. I also spent some time driving along the local roads situated to the north of the subject land and re-acquainted myself with Gisborne’s main street and its coffee supplies.

Site and Locality

15  To avoid duplication I shall adopt here the useful description of the subject land provided by Member Fong in her previous decision dated 4 April 2006, as follows:

[3] The review site is located on the west side of Calder Freeway approximately 2km south of the Gisborne Township. It is bounded by Brooking Road to the south, Willowbank Road to the north, and Brady Road to the West. It is comprised of 17 titles of various sizes with a total of 154.9 hectares. It is not under one ownership. However, it can be ascertained that there is no objection from any of these owners to the proposal. The address of 61 Willowbank Road is one of the properties within the site.

[4] The site is currently used for a range of rural activities, from farming to horse properties, and two small former quarries. There are 11 houses on the site. A seasonal creek (dry at time of inspection) runs approximately at the centre of the site. It has no formal name, but referred to as ‘Central Creek’ by the parties.

[5] The majority of the land is relatively flat, dissected by Central Creek near the centre of the site. The land rises to the southwest corner, from where there are extensive views across the north and northeast.

[6] To the north of the site are properties also in the Residential 1 Zone but subdivided into large lots. Ms. Banks advised that they are all one-acre lots. To the west of the site and west of Brady Road are properties zoned Residential 1 Zone has not been developed and remains rural in outlook. A board on the site indicated that this property is on the market. The portion zoned Low Density Residential is developed, with new houses already constructed in spacious grounds. This zone has a minimum lot size of 0.4 hectare.

[7] Land to the south of the site, south of Brooking Road is the foothill of Mt. Macedon and zoned rural Living 1 Zone.

[8] Several permits have been issued or under consideration for subdivision within the site: a 22-lot subdivision for No. 43 Brooking Road at the south west corner (most lots are 4000 sq m, Permit P201/0571 issued on 17 April 2003 and recently extended to 2007); Permit P203-0755 to be issued at the direction of the Tribunal for 59-95 Brooking road with lot sizes between 1,500 to 4,000 sq m (this decision was set aside by the Supreme Court on a point of law and to be brought back to the Tribunal), and a current proposal for a 22-lot subdivision for the parcel of land at the southeast corner of Brady and Willowbank Roads.

16  If it not already been issued at the time of Member Fong’s decision, I can confirm that a planning permit has issued for the subdivision of the land at the south-east corner of Brady and Willowbank Roads, into 22 lots. Accordingly, this site which has already received subdivision approval for 22 lots is excluded from the land which is subject to the proposed development plan now before me.

Proposal

17  Paragraphs 23 to 30 of council’s written submission admirably summarises the proposal, as follows:

Essentially, the applicant seeks Council’s approval of a development plan which has been prepared in respect of the majority of the land bounded by Willowbank Road, Brooking Road, Brady Road and Calder Freeway.

The development plan otherwise describes:

·  Development area of 154.9 hectares

·  Subdivision of the 102.18 hectares of land into 887 lots (for residential use) at a range of densities as follows:

§  49% of lots are to be between 1000 and 4000 sqm;

§  45% of lots are to be under 1000 sqm;

§  5% of lots are to be over 4000 sqm

·  16.5 hectares of open space (excluding drainage reserves)

·  4.25 hectares of drainage reserve including retarding basins;

·  31.85 hectares of road reserves;

·  0.2 hectares dedicated to proposed community centre;

·  An internal road network;

·  A shared path running alongside the northern section of the creek and a bike path running along;

·  4 retarding basins within the open space around Central Creek (northern section), 1 retarding basin within the open space in the north-west corner of the subject land 1 retarding basis within open space adjacent to the Calder Freeway;

·  Limit of single storey or 5 metre within two building height precincts.

While there is no landscape concept plan as part of the development plan, the report accompanying the plans describes the retention of existing indigenous trees, partial removal and re-vegetation of native grasses in open space and indigenous planting along Central Creek. The report also describes street tree planting of a range of exotic and native trees.

The Development Plan lodged with Council comprised the following elements and documents:

·  Development Plan dated 14 July 2006 by Keith Altmann & Associates;

·  Building height precinct plan undated;

·  Sight lines “A” and “B” from Calder Freeway dated 14 July 2006 by Keith Altmann & Associates;

·  Traffic and Movement Plan dated 14 July 2006 by Keith Altmann & Associates;

·  Supporting report by Keith Altmann & Associates dated July 2006.

The applicant did not provide new flora and fauna reports with the application, but sought to rely upon the reports previously undertaken and supplied with the previous application.

On 14 December 2006, Council’s instructing solicitors received an amended development plan and supporting report dated 6 December 2006. The amended plan and supporting report were not accompanied by the requisite statement of changes as required pursuant to the relevant practice note. However, upon examination of the plans, the amendments are summarised on the development plan as comprising: