It is the order of the Tribunal that the Development Plan be not approved.

The decision of the Responsible Authority to refuse to subdivide part of 61 Willowbank Road into 6 lots is affirmed. No permit must be issued.

Ms. Julie Davis, Barrister, instructed by Keith Altman. She called the following witness to give evidence:

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Keith Altman on the proposal

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Deb Newmann, Town Planning

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Henry Turnbull, Traffic Engineering

Mr. Barry Green, Manager of Planning, and Ms. Lisa Gervasoni, Strategic Planner, of the Macedon Ranges Shire Council, also appeared.

1 This is an application under Sections 149 and 77 of the Planning and Environment Act 1987 against Council's refusal to approve the Development Plan and refusal to grant a permit for a six lot subdivision of part of the 61 Willowbank Road, Gisborne.

2 Leave was granted to amend the application by substituting the proposed subdivision plan as circulated on 8 February 2006.

3 The review site is located on the west side of Calder Freeway approximately 2 km south of the Gisborne Township. It is bounded by Brooking Road to the south, Willowbank Road to the north, and Brady Road to the West. It is comprised of 17 titles of various sizes, with a total of 154.9 hectares. It is not under one ownership. However, it can be ascertained that there is no objection from any of these owners to the proposal. The address of 61 Willowbank Road is one of the properties within the site.

4 The site is currently used for a range of rural activities, from farming to horse properties, and two small former quarries. There are 11 houses on the site. A seasonal creek (dry at time of inspection) runs approximately at the centre of the site. It has no formal name, but referred to as 'Central Creek' by the parties.

5 The majority of the land is relatively flat, dissected by Central Creek near the centre of the site. The land rises to the southwest corner, from where there are extensive views across the north and northeast.

6 To the north of the site are properties also in the Residential 1 Zone but subdivided into large lots. Ms. Banks advised that they are all one-acre lots. To the west of the site and west of Brady Road are properties zoned Residential 1 and Low Density Residential. The portion of land zoned Residential 1 Zone has not been developed and remains rural in outlook. A board on the site indicated that this property is on the market. The portion zoned Low Density Residential is developed, with new houses already constructed in spacious grounds. This zone has a minimum lot size of 0.4 hectare.

7 Land to the south of the site, south of Brooking Road is the foothill of Mt. Macedon and zoned Rural Living 1 Zone.

8 Several permits have been issued or under consideration for subdivision within the site: a 22-lot subdivision for No.43 Brooking Road at the south west corner (most lots are 4000 sq m, Permit P201/0571 issued on 17 April 2003 and recently extended to 2007); Permit P203-0755 to be issued at the direction of the Tribunal for 59-95 Brooking Road with lot sizes between 1,500 t0 4,000 sq m (this decision was set aside by the Supreme Court on a point of law and to be brought back to the Tribunal), and a current proposal for a 22-lot subdivision for the parcel of land at the southeast corner of Brady and Willowbank Roads.

9 The proposal seeks approval for a Development Plan that covers the entire site of 154.9 hectares, and a permit for subdivision of part of the site, that is part of one of the parcels of land known as 61 Willowbank Road, fronting Willowbank Road, into 6 lots. One of the lots is to provide a carriageway easement for a future road to provide a north-south access between Willowbank Road and Brooking Road.

10 The submitted Development Plan shows a road network of internal streets accessed from the perimeter roads of Willowbank Road, Brady Road and Brooking Road. There will be no access from the Calder Freeway. Two roundabouts are proposed for the internal road that intersect with Willowbank and Brooking Roads. It also shows 13.91 hectares of open space, 1.58 hectares of drainage reserve, 2.8 hectares of retarding basins, 2.86 hectares of neighbourhood parks, 8.75 hectares of creek reserve, and 0.2 hectares set aside for a community centre at the northwest corner of the site. A bicycle path is shown along the southern alignment of Willowbank Road.

11 The yield of lots under this development plan is 1005 lots, ranging from multi-unit sites to 4000 sq m, with the following distribution:

12 It is fair to say that the majority, that is over 60% of the lots, are 1000 sq m or under.

13 Native vegetation along Central Creek is retained, but a patch within No. 59 Brooking Road is to be removed to make way for subdivision and an open space area. The GAGIN report used as expert statement contains details of the types and qualities of these vegetation, and net gain calculations.

14 The review site is located in the Residential 1 Zone of Macedon Ranges Planning Scheme ("the Scheme"). A permit is required for the subdivision of land.

15 The site is affected by the Development Plan Overlay Schedule 1. Pursuant to Clause 43.04, a permit must not be granted to subdivide land or construct buildings or works without a development plan prepared to the satisfaction of the Responsible Authority. A permit granted for subdivision or buildings and works must be generally in accordance with the development plan and subject to any conditions or requirements specified in the schedule of the overlay.

16 This Schedule is specifically for the Gisborne/New Gisborne areas. This overlay includes a map that designated precincts as 'Development cells'. Issues have been identified to be addressed for each of the cells. The review site is in 'Cell 6'. The issues identified for this cell are:

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Encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.

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Identify landscape options to soften impact on Mt. Gisborne approach.

17 The site is affected by Clause 52.17 Native vegetation. Pursuant to the table for Clause 52.17-6, a permit is required to remove native vegetation.

18 Other relevant planning provisions and policies are Clauses 11, 12, 14, 15, 16.01, 21.07-1 (Management of Urban Growth and Development), 22.01 (Macedon Ranges and Surrounds), 22.02-2 (Townships - Gisborne), 65 and 66.

19 Parties made written and/or oral submissions. Expert witnesses, called to give evidence, were made available for cross-examination.

20 At the completion of the hearing, I indicated I would inspect the site and surrounding area.

21 Decision was reserved.

22 Having heard the submissions, evidence, inspected the site and surrounding area, I am not satisfied that the Development Plan has been prepared to the satisfaction of this Tribunal. It follows that the application to subdivide part of 61 Willowbank Road into six lots (P2146/2004) must fail, as an approved Development Plan is prerequisite to the grant of a permit.

23 The issues arising from this review is whether the proposed subdivision as expressed in the proposed Development Plan has been prepared to the satisfaction of the Responsible Authority.

24 Ms. Newmann, called by review applicant to give town planning evidence, expressed the view that there is a lack of policy guidance to assess the merits of the proposed development plan, and that the Tribunal should not rely on the proposed Outline Development Plan as a guidance. The outline development plan is the reason why Council refused to approve the proposed development plan.

25 The acceptability of the proposed development plan will ultimately rests on whether there is enough merit in it for it to become the basis for subsequent subdivision and development of the land: whether it has addressed the issues raised by the Development Plan Overlay Schedule 1, whether it provides an appropriate blue print for future subdivision and development of the site in accordance with Clauses 54, 55 and 56, and whether it can adequately address the native vegetation within the site.

26 I am not satisfied that the proposed development plan has delivered on the Development Plan Overlay and Clause 56 objectives.

27 As for the matter of native vegetation, Amendment VC 38 has been gazetted on 16 March 2006 following the hearing on 9 and 10 March 2006. As the decision of these reviews was based on the primary failure of the Development Plan to respond to the Development Plan overlay and neighbourhood character, I deemed it unnecessary to seek further submissions from the parties regarding native vegetation.

28 Council's main reason for not approving the Development Plan is its view that it does not meet the recommendations of the Gisborne/New Gisborne Outline Development Plan. Ms. Gervasoni, Council' Strategic Planner explained that Amendment C38 was a ministerial amendment to bring in the control of Development Plan Overlay Schedule 1 for the site. The Minister saw the urgency of putting in place a process for the preparation of an outline development plan for Gisborne. The Gisborne/New Gisborne Outline Development Plan has been prepared with DSE funding (Transit City program). A final report has been completed, although it has yet to be formally adopted by Council. This report, dated February 2006 will be the strategic basis for an amendment to the Scheme and has been used to assess the proposed development plan.

29 As Ms. Newmann pointed out, this study is at an early stage of becoming part of the Scheme. Assumptions and recommendations of this study are open to challenges. Little weight can be placed on this study.

30 It is, nonetheless, a significant piece of work and the basis of Council's assessment and determination.

31 The vision for Gisborne under this study is for Gisborne to be a township of lower density, respecting the topography and view lines of the area. Medium density developments are to be located around the main commercial areas. Larger lot sizes are proposed for areas that have landscape sensitivity, areas having important flora and fauna assets, and where they abut existing larger lots of rural/low density development. New residential areas are to be linked to the centre of Gisborne through linear open space. This study advanced the concept of New Gisborne becoming a transit area because of availability of train services to Melbourne.

32 This study considers a density of 1:450 sq m as higher density, and they are located around activity and neighbourhood centres, public transport links and open space. Housing choice is to be provided in three new residential areas in New Gisborne, west Gisborne and southern Gisborne, with densities ranging from 450 sq m to 4000 sq m. The sensitive landscape and environmental areas adjacent to the Freeway are subject to lower density lot sizes. The review site is in the south Gisborne new area. This study expects a yield of approximately 1880 new lots in approximately 425 ha of land in the new growth areas.

33 In terms of detailed recommendation, the review site is in Area 12 (South of Willowbank Road) and Area 16 (North of Brooking Road and Adjacent to Calder Freeway). The recommended control for Area 12 is an average lot size of 2000 sq m, with a minimum of 1500 sq m. Minimal setback of buildings from the road is 10 metres, and 4 metres from side boundaries. Maximum building height is 9 metres, and fencing must be post and wire, or similar. The recommended control for Area 16 is an average lot size of 4000 sq m, with a minimum of 3000 sq m. Minimum setback of buildings from the road is 20 metres, a 10 metres from side boundaries. Again, maximum building height is 9 metres and no more than two storeys. Fencing must also be post and wire or similar.

34 As the proposal is not consistent with this recommendation for the review site in terms of lot sizes, Council argued that a case has not been made for the proposed development plan. The development, with a proposed yield of over 1000 lots, would effectively over supply Gisborne with residential development well in excess of the projected 2030 requirement described in the outline plan.

35 Ms. Newmann correctly pointed that this Outline Development Plan is at an early stage and not yet in the Scheme. The 'final' report has not been formally adopted by Council. Weight cannot be placed on the recommendations of this document.

36 Without a valid outline development plan, her view is that Clause 14, which promotes orderly development of urban areas, and Clause 12, which is about sustainable development taking advantage of existing settlement, investment in infrastructure are the relevant policy guidance. The Macedon Ranges Planning Scheme MSS has consistently advocated the need to confine residential development within urban areas and defined townships. Gisborne is a major urban centre. The Scheme's local policy for townships, Clause 22.02-2 described Gisborne as a major urban centre with a village character with a number of heritage, environmental and diversity residential precincts. The only two outcomes sought by the Scheme are to protect the urban and landscape elements that contribute to Gisborne's image as a village in a rural landscape, and to ensure that new urban development is of a low profile and compatible with the landscape qualities of the area. There is no other effective guidance to assist the Tribunal in differentiating between the permit applicant's proposal and any alternative development plan for the site. She reminded the Tribunal that the site is in the Residential 1 Zone. The schedule to this zone contained no restriction on lot sizes.

37 She went on to consider that the land is clearly suitable for subdivision. The proposed Development Plan has been prepared in accordance with all the requirements listed in the scheme. The land is in the Residential 1 Zone and within the Gisborne Township. The land is large enough to accommodate a range of lot sizes. The land can be considered to be located in a 'gateway' location in relation to Gisborne. It is close to the Gisborne Township (3 km by road), and school (1.3 km from the Gisborne Secondary College). She does not consider a distance of 3 km from the town centre as remote. The proposed Development Plan shows lower density and larger lot sizes along Brooking Road and Calder Freeway as recommended for 'Cell 6' in the Development Plan overlay schedule. The proposed development plan and 6 lot subdivision are not out of keeping with the character of the surrounding area. The development plan also manages the issues of native vegetation and reticulated services. The proposed development plan is satisfactory pursuant to the Development Plan overlay requirements.

38 I agree with Ms. Newmann that the draft Outline Development Plan has some distance to go before it becomes part of the Scheme. It is not a document that can be relied on to accept or reject the proposal before me. However, I do not agree that there is a policy vacuum to inform the appropriate outcome for the site.

39 Clause 22.02-2 Gisborne Township gave a description of the character of the township and the intent for the township. The elements identified for Gisborne, as relevant are:

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Village character in a rural and forest setting with the majority of its development centred in a valley setting.

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................................

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Network of open space areas focusing on Jackson's Creek.

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..............................

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Significant outlook to prominent landscape features.

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Diversity of residential precincts based on residential layout, lot design and housing styles.

40 The objectives for development in the overall township are:

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To reinforce the key urban functions and role of Gisborne as a major township in the shire.

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To provide clear limits to population and physical urban growth of the township.

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To ensure that development occurs in a sequential manner allowing for efficient provision of development infrastructure.

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To recognise that population growth and changes to age and household structure creates demand for wider housing choice, urban consolidation and infill vacant serviced residential zoned land and provision of community facilities.

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To protect the urban and landscape elements that contributes to Gisborne's image as a village in a rural landscape.

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To ensure than new urban development is of low profile and compatible with the landscape qualities of the area. [Underlining my emphasis]

41 The structure plan for Gisborne of this clause designated the review site as 'Future Residential, Outline Development Plan to be prepared'.

42 Unfortunately, such an outline development plan has yet to be incorporated into the Scheme. I agree with the review applicant that development should not be held up until such a plan is in place.

43 Another guidance in the scheme can be found in the Schedule to the Development Plan Overlay. The review site is within 'Development Cell 6'. The issues to be addressed for this cell are:

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Encourage lower density lots adjacent to Brady Road, Brooking Road and the Calder Freeway.

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Identify landscape options to soften impact on Mt. Gisborne approach.

44 This means that development of the site, including subdivision, must address these two issues: the intention for lower density lots along the perimeter roads and the landscape options to soften impact on Mt. Gisborne approach.

45 The proposed development plan indeed shows 'lower' density along the perimeter roads, that the average lot sizes are larger than those located away from these roads. However, I am not satisfied that the extent of lower density lots proposed in the development has addressed the objective of maintaining a village ambience within a rural and forest setting of Gisborne.

46 The depth of 'lower density' lots is one block deep. Given the expansive character of the site and the vantage points available from within and outside the site, there is little effect in the impression that it is a lower density area, or of a village in a rural setting. It is more of a suburban subdivision.

47 As for the issue of landscape options to soften the impact on Mt. Gisborne approach, there is no evidence that this exercise has been carried out. My inspection of the site is that Mt. Gisborne forms a backdrop for the review site. It is separated from Mt. Gisborne by a band of Rural Living Zone. It is a consideration that should be addressed.

48 Another design criterion is whether the proposed development plan is an appropriate basis for future subdivision and development of the site under the guidance of Clause 56.

49 Council advised me that the DSE is currently reviewing Clause 56, with a view of introducing new provisions to create sustainable neighbourhoods. These new provisions relate to consideration for neighbourhood centres, walkable distance to services, provision of schools and community facilities, and to provide a sense of place in new residential subdivision. It would require integrated walking, cycling, public transport and motor transport modes. I understand that a draft Clause 56 is still in a consultation stage.

50 Nonetheless, the current Clause 56 still requires the consideration of neighbourhood character (Clause 56.01-2). It is this aspect that I consider the proposed development plan has not responded to the existing neighbourhood character of the area.

51 Standard C1 recommended that a subdivision layout should give an area a strong and positive identity by having regard to site characteristics, its setting, landmarks and views, and through the street and open space networks. Subdivision layout:

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Must respect the existing neighbourhood character or achieve a preferred neighbourhood character consistent with any relevant neighbourhood character objectives, policy or statement set out in the scheme.

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Must respond to and integrate with the surrounding urban environment.

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Should encourage development to front major streets, through the use of service roads or side or rear access.

52 It is clear that there is at present no stated preferred neighbourhood character. The draft Gisborne Outline Development Plan is not at a stage advanced enough to be given weight, and the other referred documents nominated in the Scheme are either not relevant or out of date[1]. The determination of whether the proposed development plan is acceptable is whether it responds to the existing neighbourhood character of the area.

53 The existing neighbourhood character of the area is either low density residential development or rural in character: low density residential to the north and west, and rural to the south. To the east is the Calder Freeway and further rural properties. The site itself is of rural appearance. With regard to the current residential development pattern of the area, Ms. Banks submitted that despite the same Residential 1 Zone that applies to her property, the area north of Willowbank Road is developed with housing lots of 1 acre. The proposed 'suburban' character is out of keeping with the semi-rural character of these one-acre allotments.

54 The low density residential area to the west is zoned Residential Low Density Zone and has a low density appearance. The area to the south of the site and south of Brooking Road is in the Rural Living Zone 1, and also of a rural character. This area can be described as the foothill of Mt. Macedon.

55 Against such an existing character of either low density or rural outlook, and against the background of recommended lower density development adjacent to perimeter roads and softening landscaping options under the Development Plan Overlay, I find the mainly suburban character of the proposal not consistent with the existing neighbourhood character, the intention of 'lower density' character of the Development Plan overlay, or the village in a rural setting character promoted by the Gisborne Township policy.

56 As the strategic blueprint for the development of this large site, I would also expect an analysis of how the proposed development plan would integrate with the development of the Gisborne Township and connectivity with Gisborne in terms of pedestrian, bicycle, public transport and open space.

57 Overall, I am not satisfied that the proposed subdivision as expressed in the Development Plan has responded to the Development Plan Overlay, the existing neighbourhood character, or demonstrated how it integrates with the overall development of Gisborne. I do not support its approval.

58 There are other issues in these reviews. One is removal of native vegetation. The review applicant relied on the statement of evidence prepared by GANGIN. The author of the report was not called to give evidence. His report included assessment of native vegetation on the site and the grading of this vegetation according to their habitat classes and retention value. That report has also made habitat hectare calculations.

59 I note that Amendment SC38 regarding native vegetation came into effect on 16 March 2006. As this review is to uphold Council's refusal to approve the Development Plan on other grounds, I do not intend to review this issue at length, suffice to say that it will probably be subject to further assessment or referrals in the future.

60 One of the concerns of Ms. Bank is the impact of the proposal on the traffic volume of nearby streets, since the development would create over 1000 lots as well as some of the lots designated for medium density development. Mr. Turnbull assured her and the Tribunal that the nearby road network has the capacity to absorb the increase. The construction of roads and upgrading of existing roads will proceed as subsequent subdivisions are approved and constructed.

61 It is laudable that a large piece of land has been 'assembled' so that development can be considered in a more strategic and co-ordinated manner. 'Assembled' in this case is not multiple parcels of land put together under one ownership, but that there has been mutual understanding of what is sought in the proposal and that there has been no objection from any of the owners of the land. The benefit of this approach is to ensure that development plan can be prepared in an integrated and strategic way rather than a fragmented way.

62 However, I am not satisfied that the proposed development plan is satisfactory as outlined in the reasons above.

63 For the above reasons, Council's refusal to approve the Development Plan is affirmed. It follows that the proposed subdivision of part of the site at 61 Willowbank Road into 6 lots must fail.

[1] Reference documents of Clause 22.02 Gisborne Township.