Precinct Structure Plan – VCAT Appeal: City of Casey

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QUESTION OF LAW

Proposal: Subdivision of a narrow 11m wide strip of land at 345S Berwick-Cranbourne Road, Clyde North into two lots each with an area of 852.5 square metres and each with a 0.1 metre tree reserve along the frontage to the Berwick-Cranbourne Road.

Council determined to refuse the permit application.

Policy: Urban Growth Zone Schedule 2 – Cranbourne East Precinct Structure Plan (UGZ2).
Development Contributions Plan Overlay Schedule 10 – Cranbourne East Precinct Structure Plan Development Contributions Plan (DCPO10).

VCAT Hearing (On Behalf of Council):

The nature of the matter raised a jurisdictional issue / question of law regarding whether a permit can be considered for the proposed subdivision:

  • Is the proposed subdivision generally in accordance with and compliant with the requirements of the Cranbourne East Precinct Structure Plan?

Case Overview

An original planning permit allowed the subdivision (now completed) of the wider land with the endorsed plan show an 11m wide strip of land along the Berwick-Cranbourne Road frontage, identified as ’11 metre Road Widening’. That area was set aside to accommodate the future widening of Berwick-Cranbourne Road and the intersection of Berwick-Cranbourne Road / Thompsons Road.

Documentation supplied with the application outlined that an application was being to subdivide the subject land into five lots in order to initiate the acquisition process (by VicRoads) with the understanding that achieving planning approval of the proposed subdivision is highly unlikely with the application being a means for expediting the land acquisition process.

VicRoads however, did not object to the proposal, subject to condition, and the applicant then submitted revised plans for a six lot subdivision. VicRoads conditional position has been consistent for all revisions. That condition is as follows:

The plan of subdivision shall be amended to include a tree reserve width, to be vested in the City of Casey that will extend along the lots abutting Berwick-Cranbourne Road to the satisfaction of the Responsible Authority.

The principles of assessing ‘general accordance’ have been distilled from a consistent line of case law[4] and were applied in this case:

  • General accordance is a question of fact to be determined in the circumstances of each case. The term itself contemplates some flexibility of application.
  • For a proposed development to be generally in accordance with the relevant plan, it need not be identical to that described in the incorporated precinct structure plan.
  • The less detail and precision there is in the primary document, the more flexibility can be accorded to the term. The converse may also apply.
  • It is appropriate to consider the incorporated precinct structure plan as a whole when making this assessment, including its language and intent. The assessment should not involve a ‘spot the difference examination’ rather, it is question of whether the departures are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the precinct structure plan.

The Tribunal agreed with our argument and found that the subdivision would not be generally in accordance with the PSP based on the:  the site on Plan 6 categorised for the purposes as an Arterial Road and the removal of the land from the net developable building area at Table 6.

Regarding the second question argument: that the proposed subdivision does not satisfy Clause 37.07-10 of the UGZ by failing to meet requirements in the Cranbourne East PSP, the Tribunal decided not to make a determination on this matter (yet untested question of law) as they found that such considerations are somewhat secondary given my initial finding regarding the issue of general accordance.

Tribunal Decision

For the above reasons I affirm the decision of Council and a permit is not issued. The proposed subdivision of the site is not generally in accordance with the Cranbourne East PSP. Pursuant to Clause 37.07-10 of the Urban Growth Zone of the Casey Planning Scheme there is no jurisdiction to grant a permit.

Full VCAT assessment and decision available here.

 

 

Capacity: Trí Spatial Planning

Neil Cooney prepared a detailed submission and advocated at the tribunal hearing on behalf of the City of Casey Council, successfully defending their original decision.

Neil also raised a previously unheard matter in respect of ‘generally in accordance’ with the PSP, with respect to the requirements of the zone. Although the member found merit in this, he chose not to determine this further question of law as he was satisfied with the original argument put to him. This is a reasonable position considering the Tribunal Member is not a Legal Member – it still remains to be tested.

Of note, this case involved the assessment and determination of a question of law; the applicants employed the services of Ms. Louise Hicks, Barrister but were unsuccessful in persuading Council.