VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1673/2022
Permit Application no.PLP407/21 	
CATCHWORDS	
Section 79 Planning and Environment Act 1987; Development Plan Overlay; No approved development plan; Exceptions for proposals of certain types; Proposal will prejudice future development; Proposal will reduce opportunities for coordinated and master planned outcome.      	

Applicant	View Bank Homes Pty Ltd	

Responsible Authority	Mitchell Shire Council	

SUBJECT LAND	8 Eden Place
WALLAN VIC 3756	

HEARING TYPE	Hearing	

DATE OF HEARING	17, 18 & 19 May 2023	

DATE OF ORDER	14 June 2023	

CITATION	View Bank Homes Pty Ltd v Mitchell SC [2023] VCAT 662	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by adding the following as part of the proposal:
(a)	Removal of native vegetation pursuant to clause 52.17 of the Mitchell Planning Scheme.
(b)	Creation of an easement pursuant to clause 52.02 of the Mitchell Planning Scheme.
No permit granted
2	In application P1673/2022 the decision of the responsible authority is affirmed.
3	In planning permit application PLP407/21 no permit is granted.

Joel Templar
Member			

Appearances
For View Bank Homes Pty Ltd	Ms Tania Cincotta, lawyer of Best Hooper lawyers. Evidence was called from the following witnesses:
•	Ms Charmaine Dunstan, traffic engineer of Traffix Group.
•	Mr Sam D’Amico, town planner of Ratio Consultants.	
For Mitchell Shire Council	Mr Terry Montebello, lawyer of Maddocks lawyers.	

Information
Description of proposal	Construction of twenty-one dwellings on a lot, removal of native vegetation and creation of an easement.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Mitchell Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1
Development Plan Overlay Schedule 15	
Permit requirements	Clause 32.08-6 - to construct two or more dwellings on a lot. 
Clause 43.04-2 – to grant a permit where a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible Authority. 
Section 1 of Schedule 15 of clause 43.04-2 allows a permit to be granted before a development plan has been prepared provided that the Responsible Authority is satisfied that the proposal will not prejudice the future use or development of other land within the relevant infill area or reduce the opportunities for a coordinated and master planned development outcome.	
Land description	The review site is located on the north-eastern end of Eden Place which is a court bowl that runs in an east-west direction from Windham Street. It is generally a triangular shaped lot with a total site area of approximately 9060 square metres. It is currently developed with a single storey dwelling and associated outbuildings located within the front southern portion of the site. Access to the site is via a single crossover to Eden Place. There are a number of trees scattered across the site with mild slope downwards to the north.

  Reasons
What is this proceeding about?
1	This proceeding concerns the review by the permit applicant of the council’s failure to determine an application within the prescribed time. The permit application is for the construction of twenty-one dwellings on a lot, removal of native vegetation and the creation of an easement.
2	On the face of it, the application as described above sounds straight-forward enough, but it belies the complexity of this case. 
3	The review site is wholly affected by the Development Plan Overlay Schedule 15 (DPO15) which ordinarily requires a development plan to be approved for this entire precinct, prior to the granting of any permits. There are exceptions to this and, given there is no approved development plan for the precinct, it is these exceptions that the applicant relies upon in order to pursue the granting of a permit.
4	The applicant said it satisfies these exceptions and, on this basis, a permit can be granted. It also said that on the merits of the proposal, a permit should be granted.
5	The council disagreed. It said that the exceptions are not met and a permit is unable to be granted. It also said that if the Tribunal disagreed, that the proposal fails on its merits too.
6	Whilst the review site is in an area that is suitable for medium density development, there are other preceding factors that need to be considered in this case in addition to the usual type of considerations in a medium density proposal.
7	A previous application was determined by the Tribunal for this site in 2021 when the DPO15 also affected the land. That proposal was for the construction of 31 dwellings. No permit was granted but not because of the existence of the DPO15. At that same time, a permit existed for a multi-dwelling development at 9 Eden Place. That permit was not acted upon and has since expired.
8	I have found that the exceptions in the DPO15 are not met in this case and therefore no permit can be granted. I explore reasons for this below.
the development plan overlay schedule 15
9	The review site is wholly affected by the DPO15, which applies to two separate precincts in Wallan. The western most is that which affects the review site. The other is further to the east and both are separately recognised in the DPO15.

Figure 1: the extent of DPO15 covering two precincts. Review site identified in blue.
10	The DPO head provision has the following objectives most central in this proceeding:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.
11	It also contains the following requirement:
A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.
This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority.
A permit granted must:
•	Be generally in accordance with the development plan.
•	Include any conditions or requirements specified in a schedule to this overlay.
12	The DPO15 says the following:
This schedule aims to ensure the coordinated development of two residential infill locations within the Wallan Township. Each infill location is south of Watson Street and connects to existing residential neighbourhoods.
The western infill area is bound by Windham Street (west) and Duke Street (south) and existing development to the north and east. The eastern infill area adjoins the Hume Freeway reservation and is accessed from McCarthy Court and Butler Court.
13	 Clause 1.0 of the DPO15 states the following:
The responsible authority may grant a permit to use or subdivide land, construct a building or construct or carry out works before a development plan has been prepared to the satisfaction of the responsible authority, provided that the responsible authority is satisfied that the proposal will not prejudice the future use or development of other land within the relevant infill area or reduce the opportunities for a coordinated and master planned development outcome.
These are the ‘exceptions’ as referred to earlier.
14	Clause 4.0 of the DPO15 has the following decision guidelines:
•	How the development plan has addressed the Key Directions and Strategies of the Wallan Structure Plan, December 2015.
•	How the development plan provides for a coordinated development outcome for the entire relevant residential infill area.
•	In the case of a proposal that is lodged prior to a development plan being approved, that the proposal will not prejudice a coordinated development outcome for the entire residential infill area (either eastern or western portions).
•	The views of Yarra Valley Water, VicRoads, Melbourne Water, Country Fire Authority and other relevant State Government departments/authorities, as determined by the responsible authority.
•	Impact of the development on the external road network and (including but not limited to works identified in the transport impact assessment report) and any related developer contributions.
•	Arrangements for the provision and contribution for any necessary physical and social infrastructure as a result of development.
15	The parties agreed, as did Mr D’Amico, that there are two exceptions in clause 1.0 of DPO15. They are:
•	provided that the responsible authority is satisfied that the proposal will not prejudice the future use or development of other land within the relevant infill area; or 
•	reduce the opportunities for a coordinated and master planned development outcome.
16	The parties also agreed that the word ‘or’ in between the two exceptions is to be read as ‘and’ in this case, meaning that both exceptions must be satisfied in order for a permit to be granted. That means that if one of the exceptions is not satisfied, then a permit cannot be granted.
other applications in eden place
Repeat appeal
17	The Tribunal has previously determined an application on the review site, as cited earlier. In that case, the Tribunal found that the built form and intensity on the site was too great to warrant the grant of a permit. It also said the following with respect to the DPO15, which was in place at the time of that decision:
6	As to the issue of the DPO15, the absence of an approved development plan for the site or the DPO area would not have prevented the granting of a planning permit if I considered the form of development appropriate. My reasons for this refusal follow.
…
22	I have refused the proposal primarily on the grounds that the proposed development fails to respect neighbourhood character. I have also stated that the absence of a master plan would not have prevented the grant of a planning permit, given a form that I considered acceptable. I therefore make no further comment regarding this matter of the DPO as my key reason for refusal is neighbourhood character.
18	As can be seen from the above extracts, which are the only parts of the reasons in that decision that make reference to the DPO15, the Tribunal focussed on the merits of the proposal before it. Whilst it is clear that the Tribunal would have had no issue granting a permit prior to the approval of a development plan under the DPO15, the reasons why that were the case are not set out.
19	The notion of repeat appeals principles is well known and often quoted to this Tribunal. The principles are drawn from a number of Tribunal and Court decisions. As they are well known and often quoted, and were referenced in the submissions in this case, I will not recite them here.
20	The parties agreed that this was essentially a ‘correcting’ repeat appeal. That is, the applicant has genuinely attempted to address the concerns raised by the Tribunal in the previous decision and proposed something different.
21	There was no dispute that the previous decision is not binding on me in determining the proposal now before me. It is a relevant matter to consider,  but ultimately, the weight to be given to that previous decision is a matter for me, as set out in Rozen.
22	Given there was no dispute between the parties that this is a ‘correcting’ repeat appeal, the focus in this case is the Tribunal’s previous decision and reasons on why it would have granted a permit notwithstanding the existence of DPO15 and the absence of an approved development plan.
23	One of the principles still relied upon and referred to is whether there have been any changes in the circumstances of the land and its surrounds. The applicant said that the absence of a valid permit on any of the land in the western precinct was a change in circumstances and is relevant but would not have impacted the findings in the previous decision because not all permits are acted upon. 
24	The council said that in the context of a repeat appeal, it is a risky exercise to presume to know the inner workings of the Tribunal’s mind. This is particularly the case when reasons are limited.
25	Given the limited written reasons on this point, I find that limited weight should be placed on that decision insofar as the DPO15 is concerned. It is also relevant to my consideration that at the time of that previous decision, a planning permit for a multi dwelling development at 9 Eden Place was approved and valid. 
26	That is no longer the case and I was advised at the hearing that there are no valid planning permits for any development in the western precinct of the DPO15 at the present time.
Permit for 9 Eden Place
27	A planning permit was issued for the development of six dwellings at 9 Eden Place on 14 January 2019. It was issued also whilst the DPO15 affected the land and at the direction of the Tribunal.
28	That permit for 9 Eden Place has since expired and there was no dispute that there are currently no valid permits for development of any land within this precinct of DPO15.
29	At the hearing, I was advised that the decision of the Tribunal in that case was apparently delivered ex tempore and there are no written reasons. This was not disputed and there was no material filed to the contrary.
30	I accept that this permit was issued at the direction of the Tribunal and that it is relevant to my consideration. However, similar to the previous decision on the review site, I find it difficult to give much weight to it, as it is unclear what the reasons were as to why a permit was granted when the DPO15 affected the land and where no approved development plan existed.
Conclusion on previous applications
31	Whilst the facts are that the Tribunal has previous directed the granted of  permits in this precinct of DPO15 without an approved development plan in place and also found that the absence of such would not have prevented the granting of a permit but for other reasons, it is unclear to me what the rationale behind those decisions was as it relates to the DPO15. It is also unclear to me what, if any, submissions were made to the Tribunal in those cases with respect to the DPO15.
32	In the proceeding now before me, the absence of an approved development plan and the pursuit by the applicant to obtain a permit in those circumstances, and relying on the exceptions within the DPO15 to do so, are the central issue that I must decide. That was the thrust of the applicant’s submissions and the focus of Mr D’Amico’s evidence, based on the council’s focus was also centrally on the DPO15. That appears to be quite different to the previous two proceedings.
33	In any event, I must decide the application that is now before me on its merits. Whilst previous decisions are relevant to my considerations, they are not the only considerations and do not necessarily outweigh other relevant matters.
development Plan Overlay 15
34	The absence of any valid permits in this precinct of DPO15 is relevant to my consideration. In the previous case for the review site a permit existed for the development of the land at 9 Eden Place and this may well have created a difficult situation whereby a coordinated approach to the development of the remainder of the land in the western precinct could be undertaken. It is unclear whether that was a factor in the mind of the Tribunal in the previous case.
35	That is no longer the case.
36	The council impressed upon me that this was significant and presented an opportunity to ensure that the precinct was developed in a coordinated manner, through the development plan approval process under the DPO15. 
37	It said that the proposal before me would stifle the opportunity for a coordinated approach and prevent the outcomes seen on the land on the north side of Eden Place that are outside the DPO15 and developed with relatively intense medium density development.  
38	It also said that the proposal would remove a large area from the potential development plan and would leave the land adjacent to the west as an area that will also lack any integration with this precinct. On these bases, the proposal would fail both limbs of the exceptions at clause 1.0 of the DPO15.
39	The applicant said that the land on the southern side of Eden Place is different to the northern portion and in particular the review site for the following reasons:
•	To the east the residential land is not included within the DPO area; 
•	The land at both 4 and 6 Eden Place has already been developed for medium density development and in particular the land at 6 Eden Place which abuts the subject site in its northern section has no vehicular connections and contains common property roads over which the Applicant has no legal right of access over; 
•	To the immediate south there is a public walkway that is located within the Public Park and Recreation Zone; 
•	There would be little planning benefit in having vehicular access between the two sites at 7 and 8 Eden Place; and 
•	Council has already previously approved a permit at 9 Eden Place for medium density development in the absence of an approved development plan. 
40	Mr D’Amico said the DPO15 has provided the opportunity for a permit to be granted prior to the approval of a development plan and that this was something the council had elected to include in the DPO15.
41	He said that the review site, along with 7 Eden Place, sits somewhat separate from the remaining land in the western precinct of the DPO15. He said that its location in the north-eastern corner, as well as the strip of PPRZ land that provides access between Eden Place provide a degree of separation that distinguish them from other lots in this precinct. 
42	Mr D’Amico also said that it was unlikely pedestrians would seek to utilise the site’s frontage to Watsons Road which abuts the northern boundary of the review site, given the town centre is to the west, except for accessing a bus stop close to the site’s frontage along Watsons Road. He also saw no need for a road connection to go into the review site or 7 Eden Place, but could see the potential need for a pedestrian pathway through 3 Eden Place to Watsons Road, further to the west. Further, Mr D’Amico also said that there was no potential for a road connection from the site south to Duke Street.
43	I find that the proposal will prejudice the future development of other land within this precinct of the DPO15 and reduce the opportunity for a coordinated and master planned development outcome and therefore fails the exceptions under clause 1.0 of the DPO15. I therefore find that a permit cannot be granted in this case. In addition, and for other reasons, I find that a permit should not be granted either.
44	My reasons for this are:
a.	The review site occupies a significant proportion of the western precinct when compared with other lots. Whilst it equates to around 10% of the land, which is far from a majority, it is nonetheless a large proportion of the DPO15 area.
b.	The review site is not isolated, either individually or along with other land such that it could be said to be an ‘island’ from the remainder of this precinct.
c.	The development of the land as proposed would likely impact connectivity throughout the precinct. Whilst there may be other land in this precinct that may be more critical from a connectivity perspective, this does not mean the review site is not important or that the test is one of relativity. No material or evidence was produced assessing traffic, transport and access matters that satisfied me that the proposal would not reduce a coordinated outcome.
d.	The proposal is to develop the land, almost entirely in isolation of other land in the precinct. The exception to this is the provision of the accessway and footpath which both terminate at the boundary with 7 Eden Place. However, the proposal is otherwise insular and incognisant of other land, which is directly at odds with the DPO15.
e.	There is no approved development contributions plan.
f.	There is no traffic impact assessment on a precinct wide basis.
g.	There is no understanding of infrastructure requirements, such as drainage, roads and footpaths.
h.	The proposal would isolate public access to Watsons Road from this eastern end of the precinct.
45	Further, the development of the land as proposed would likely impact connectivity throughout the precinct. Whilst there may be other land in this precinct that may be more critical from a connectivity perspective, this does not mean the review site is not important or that the test is one of relativity. 
46	No material or evidence was produced assessing traffic, transport and access matters that satisfied me that the proposal would not reduce a coordinated outcome. Whilst Ms Dunstan’s evidence sought to justify why the review site would be unlikely to be utilised for any type of connection roads or accessways, I am not persuaded that the site may not be required for this purpose. 
47	I accept her evidence that the lots on the southern side of Eden Place which have frontage to Duke Street might provide obvious opportunities for connectivity, the size of the review site means that some for of road access may be required. The length of the review site and the fact that the proposal before me has a lengthy accessway for the proposed dwellings gives an indication that it is too large to merely accommodate lots or dwellings without some form of connectivity. The DPO15 specifically seeks coordinated access outcomes and I find that this proposal will reduce the opportunities for coordinated connectivity, as sought by the DPO15.
48	I find that the proposal will prejudice the future development of other land within this precinct of the DPO15. In particular, the proposal will prejudice the development of the adjoining land to the west at 7 Eden Place, as it would effectively isolate this land, given that land is currently bordered on its northern and western boundaries by land that is not within the DPO15. 
49	The proposal would effectively render this land as an ‘island’ incapable of being integrated with the broader precinct, as its only remaining boundary would be its frontage to Eden Place.
Are there any other issues?
50	As I have found that the proposal would prejudice the development of other land within the precinct and will reduce the opportunities for a coordinated and master planned outcome, it fails the exceptions under clause 1.0 of the DPO15 and therefore a permit cannot be granted and should not be granted.
51	On this basis I have not made any assessment of the acceptability of the proposed development of 21 dwellings on the land.
Conclusion
52	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Joel Templar
Member