1. The applicant submits:
   • The Council's approval of the DP is a 'misuse [of] the development plan process to punish the applicant for what it [the Council] believes to be inappropriate native vegetation removal'.[39]
   • It was unfair of the Council to accept the larger tree reserve on nearby land that was offered in compensation for not including the disputed tree reserve as well as including the disputed tree reserve.
   • There is no relationship in value between the loss of developable land in the reserve and the value of the removed vegetation measured in required offsets.
2. The applicant's submissions are unpersuasive.
3. The chronology I have set out does not support a contention that the Council in approving the DP with the inclusion of the tree reserve punishes the applicant for removing the vegetation in the area of that reserve. Simply put, the Council sought amendments to the consortium's draft DP to include the tree reserve before the applicant removed the trees in the area of that reserve.
4. There is no formal link between the Council's foreshadowed enforcement action for removing trees outside the tree reserve and the Council's view that the reserve should be provided.
5. As I have stated, relevant considerations in the preparation of a development include, in addition to the MSP, relevant policies in the planning scheme and purposes and decision guidelines under the relevant zone, overlay or other provisions.
6. The tree reserve is supported by a VPO decision guideline in considering proposals to remove vegetation about whether 'provision is made or is to be made to establish and maintain vegetation elsewhere on the land'.[40] It is also supported by general decision guidelines on whether native vegetation is to be planted or allowed to regenerate.
7. Policy includes supporting the incorporation of juvenile River Red Gums into subdivision designs, encouraging the planting of large canopy trees in developments, and planting indigenous vegetation to support biodiversity.[41]
8. There is also a strategic planning reason for including the tree reserve. The drainage reserve will include a linear park that will connect the tree reserve with another tree reserve on land to the north. In providing a pathway for pedestrians and cyclists between the tree reserves, there is improved connectivity for residents throughout the DP area.
9. The Council also referred to the strategic planning reason of the reserve being well located for an estate entry or gateway function. There is no evidence of that function in the MSP or DP and was not referred to by the Council in its grounds for the proceeding. It has no merit and was procedurally unfair for the Council to rely on it. I have given this reason no weight.
10. At the hearing, the applicant submitted that if I found the tree reserve should be retained, I should vary the DP to reduce the area of the tree reserve on nearby land at 815 & 821 Bridge Inn Road to the extent shown on the consortium's final draft version of the DP. This variation was not included in the Application and no notice of it was given to the Council. I will not therefore further consider it..

1. The applicants told the Council that engineering reasons did not support the tree reserve.
2. Those 'engineering reasons' may be summarised as engineering advice the consortium obtained in 2022 and 2023 that sewerage and drainage works would be needed in the easement in part of the tree reserve along the northern and western boundaries of the land and no trees should be permitted in the easement to minimise construction and maintenance costs to the community.[42]
3. The applicant relies on the evidence of Mr Barker whose opinion is the reserve is illogical because easements and services would still be required in the reserve, the services would need to be in an easement about 4.5 metres wide (opposite existing housing to the west) and it is Council policy to not include easements and services in tree reserves.
4. It is also his opinion that maintenance costs for services will be unreasonably high for ratepayers if trees are retained or planted in services easements.
5. Mr Barker's evidence is unpersuasive. The land is about 52 metres wide. Less the drainage reserve of about 15 metres width, the tree reserve would be about 37 metres wide. Less the 4.5 metres wide services easement on the western boundary, the available revegetation area in the tree reserve would be about 33 metres wide and about an average of 40 metres deep.
6. There is no evidence that a relatively square-shaped revegetation area of about 1,200 square metres with an adjoining 15 metres wide open space area having an overflow drainage function that connects with a nearby tree reserve should be characterised as either illogical or unable to succeed.

1. I will not make the variations sought to the DP in this Application.

1. I relation to the proceeding overall, I will not make any of the variations to the DP sought in the Applications. I will therefore affirm the Council's decision to approve the DP.

[1] The submissions and evidence of the parties, the documents relied on the parties that were filed with the Tribunal and the filed statements of grounds have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 82(1)(b).

[4] The consortium comprised the owners of 811, 815, 821, 875 & 881 Bridge Inn Road, 945 Yan Yean Road, 214 & 220 Cookes Road. It will be observed that two of these lots are lots owned by applicants in this proceeding. 220 Cookes Road is owned by Mr Galileos, a respondent in Application P875/2024.

[5] Written submissions on behalf of the Council, [48].

[6] DP section 4.7 p 12.

[7] Planning scheme cl 43.04 sch 5 cl 4.0

[8] Ibid dot point 1. The MSP '(amended December 2016)' is an incorporated document under cl 1.0 of the schedule to cl 72.04 of the planning scheme.

[12] They included Whittlesea 2040: A Place for All; Greening Whittlesea - City Forest Strategy 2020-2040; Sustainable Environment Action Plan 2024-2026 & City of Whittlesea Community Action Plan 2021-2025.

[13] PE Act s 148, 'specified person' paragraph (a).

[15] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 51.

[16] See eg ID-FLK Gisborne Pty Ltd v Macedon Ranges SC [2019] VCAT 1336, [55].

[17] [2004] VCAT 2627.

[19] DP 'Resident Development' Plan p 10.

[24] The applicant's proposed plan of subdivision includes a strip two metres wide as road widening along Cookes Road and a three metres wide 'paper road' between the lots and the tree reserve, primarily to provide pedestrian access to the lots. The Council opposed these measures for reasons that are unnecessary to refer to.

[25] Planning scheme cl 53.01 schedule, provision for Precinct 2A under the MSP.

[26] Although the Precinct Plan (figure 6) shows this land for residential development at 'low density' the applicants do not oppose the different form of residential development in the DP.

[27] Another River Red Gum (tree 700) is outside the tree reserve and is to be retained.

[28] Treelogic Pty Ltd, Aboricultural Assessment and Report: Bridge Inn Cooke Road, Doreen (18 March 2020).

[31] For example, one mechanism could be the acquisition of easements of way under section 36 of the Subdivision Act 1988 (Vic).

[35] Written submissions on behalf of the applicants [127].

[36] Written submissions on behalf of the applicant [20].

[37] The arborist's assessment of these trees had therefore changed between 2020 and 2023.

[38] The reference to these trees is unclear, but the intent was to increase the area of the tree reserve on nearby land at 815 & 821 Bridge Inn Road in exchange for not including the tree reserve on the land. The applicant states the nearby tree reserve had an area of 0.196 hectares in its early version of the DP but this was increased to 0.286 hectares in the final version in 2024.

[39] Written submissions on behalf of the applicant [83].

[40] Planning scheme cl 42.02-5 dot point 11.

[41] Ibid cls 12.01-1L, 15.02-1L & 15.01-2L.

[42] It should be added that the consortium did not oppose the drainage reserve adjoining the tree reserve as the consortium included it in the final draft version of the DP.