North Burnside v Melton SC concerned whether a development plan under the Development Plan Overlay (DPO) should be approved with respect to a large piece of land in Burnside, west of Melbourne. The land in question contained a significant proportion of native vegetation of high and very high significance. As the developer was unable to reach agreement with the Department of Sustainability and Environment (DSE) regarding the presence of native vegetation, it decided to subdivide the land such that Precinct 1 was the portion of land free of native vegetation and Precinct 2 was the remaining portion of land containing extensive native vegetation. The developer then sought to develop Precinct 1, leaving the fate of Precinct 2 to be determined in the future.

The primary purpose of the DPO is ‘[t]o 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’ (cl. 43.04). Further, cl. 43.04-3 of the DPO requires a development plan to describe the land in question, the proposed use and development of each part of the land, as well as any other requirements specified for the plan.

The Tribunal held that the development plan forwarded by the developer should not be approved. Hence, a permit could not be granted for the subdivision of Precinct 1. The reasons for the Tribunal’s decision were that:

• The proposed development plan failed to give effect to the purpose and cl. 43.04-3 of the DPO.
• It failed to comply with the provisions of the Melton East Strategy Plan 1997.
• If this proposed plan were to be followed, it would render too many uncertainties regarding the development potential of Precinct 2.

To overcome these uncertainties, the Tribunal suggested that a comprehensive plan for the whole site would need to be prepared before any development could begin. That is to say, the land should be viewed as a whole, rather than adopting the ‘piecemeal approach’ advocated by the developer.

• The full decision is available on Austlii