Legal Insights

Development Plan Overlay and Development Plans: The impact of Parklea Berwick Pty Ltd v Casey CC [2024] VCAT 287

By Terry Montebello

• 14 June 2024 • 4 min read
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The Parklea decision focuses on the implications of how a Development Plan Overlay Schedule is drafted and the form that an approved development plan should and should not take. It will form an important reference point going forward for those involved in both the planning scheme amendment process, as well as applicants and responsible authorities drafting or proposing to approve a development plan.

Background

The recent decision of the Tribunal in Parklea Berwick Pty Ltd v Casey CC [2024] VCAT 287 (Parklea) determined that a development plan approved by Casey City Council was unsatisfactory and therefore was “unapproved” by the Tribunal. Furthermore, the Tribunal determined that an alternative development plan proposed by the Applicant for Review was also unsatisfactory and, therefore, the Tribunal declined to approve it.

What does the decision mean?

The decision is essential reading for any strategic and statutory planner involved in drafting schedules to a Development Plan Overlay (DPO) or considering the approval of a development plan under a Development Plan Overlay Schedule.

While most of the Tribunal’s decisions to date regarding the Development Plan Overlay have focussed on what it means to be generally in accordance with an approved Development Plan, the Parklea decision focuses on the implications of how a Development Plan Overlay Schedule is drafted and the form that an approved development plan should and should not take.

The Parklea decision will no doubt form an important reference point going forward for those involved in both the planning scheme amendment process (involving putting a new or modified DPO Schedule in place), as well as applicants and responsible authorities drafting or proposing to approve a development plan.

Key takeaways from the Parklea decision for statutory and strategic planners

The development plan must reflect the DPO Schedule

  • Where a DPO Schedule identifies matters that a development plan must address or include, particular consideration should be given to those matters. If a high level of detail is sought, then the development plan will need to include that high level of detail – it won’t be possible to kick that can down the road to a permit application.
  • For example, where a DPO Schedule requires the development plan to include a Heritage Assessment or a Landscape Assessment, it is not sufficient to have a heritage report or a landscape report completed without at least incorporating the key elements of those reports into the development plan. This is especially the case where it is not proposed to endorse the documents as part of the actual development plan.

Requirements and guidelines should only be included in a development plan if they constitute performance measures

  • When a development plan is prepared, the overriding requirement is that a permit must be generally in accordance with a development plan. Therefore, it is not consistent with that overarching requirement for the development plan to include requirements or guidelines that must be met – except to the extent that the ‘requirements’ and ‘guidelines’ constitute performance measures to assist the responsible authority in determining if a future permit application meets the objectives relevant to a particular theme or topic.

The architecture of the development plan and of the Development Plan Overlay Schedule should be consistent

  • While it is understandable that a responsible authority would like to have standardized documents in the form of a template development plan, ultimately, the architecture of the development plan should be informed by the architecture of the Development Plan Overlay Schedule. Generally speaking headings and themes as set out in the Development Plan Overlay Schedule should be adopted in the development plan.
  • In the absence of statutory guidance as to the content of a development plan, the Planning Practice Note 23 Applying the Incorporated Plan and Development Plan Overlays provides some useful guidance as to the form of a development plan. The focus should be on objectives and performance measures or criteria along with buildings and works provisions that will be generally in accordance with what the development plan is intending to achieve.

Discretions granted by the planning scheme should not be removed

  • A development plan should not purport to remove a discretion that is granted by the planning scheme such as, for instance, the ability to seek a permit to remove native vegetation. At best, the development plan should identify the vegetation that should be retained.

In a contested case, evidence should be lead on the contested issues

  • The decision in Parklea also highlights how important it is in a contested case to lead evidence on the contested issues; submissions will only go so far.

All strategic and statutory planners should familiarise themselves with the decision as it will surely be a reference point going forward in any contested hearing either in the context of a planning panel or a VCAT hearing.

Interested in learning more about the decision?

Register for our House Call on 20 June, 10:00am - 11:30am, to hear Terry discuss the decision and its implications.

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