1 Before the development commences and the Plan of Subdivision is certified under the Subdivision Act 1988, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) The provision of building envelopes for lots 15 to 18 (inclusive) and 30 to 36 inclusive showing that the first floor level to any dwelling must be located within the front half of these lots.

2 The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) must not be altered or modified unless agreed to by the Responsible Authority.

3 This permit will expire if the Plan of Subdivision is not certified, pursuant to the provisions of the Subdivision Act 1988, within two (2) years of the date of issue.

4 Prior to the issue of a Statement of Compliance, a payment equivalent to 5% of the value of the land as determined by the Responsible Authority must be made to the Responsible Authority being payment of cash-in-lieu of the Public Open Space requirement.

5 Before the plan of subdivision is certified under the Subdivision Act 1988, the owner must enter into an agreement with the responsible authority made pursuant to section 173 of the Planning and Environment Act 1987, and make application to the Registrar of Titles to have the agreement registered on the title to the land under section 181 of the Act, which provides that:

(a)

Not more than one dwelling is to be constructed on Lots 2 to 36 inclusive;

(b)

The construction of a dwelling on lots 15 to 18 inclusive and 30 to 36 inclusive must only occur in accordance with the requirements of any building envelopes for those lots as shown on the endorsed plans.

(c)

The building envelopes cannot be varied except with the consent of the responsible authority.

(d)

The owner must pay the reasonable costs of the preparation, execution and registration of the section 173 agreement.

6 Prior to a Statement of Compliance being issued, a payment of $100 per lot must be made to the Responsible Authority being payment for provision of street trees.

7 The developer must provide boundary fences along the southern boundary of lots 32-36 inclusive at his cost, to the satisfaction of the Responsible Authority.

8 Prior to the certification of the Plan of Subdivision, any new street names shown on the plan are to be approved by the Responsible Authority.

9 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

10 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

11 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

12 Prior to the Certification of the Plan of Subdivision for stage 1, an amended plan substantially in accordance with the plans submitted must be submitted for approval to the satisfaction of the Responsible Authority showing:

•

Increased road reserve width for the first 30 metres of the road reserve from the property boundary with Hoddle Street to 17 metres.

When approved the plan(s) will be endorsed to form part of this permit.

13 Prior to the certification of the Plan of Subdivision for the appropriate stage, any new street names shown on the plan are to be approved by the Responsible Authority.

14 Prior to certifying the Plan of Subdivision for stage 2, a drainage easement of sufficient width to provide for a 1 in 100 year storm flow with a minimum width of 4 metres is to be shown on the plan over the existing overland flow path on the subject site to the satisfaction of the Responsible Authority.

15 Prior to a Statement of Compliance being issued for stage 1, the intersection between the internal road leading to Hoddle Street and Hoddle Street must be constructed to the satisfaction of the Responsible Authority. Vehicle crossovers for lots 1-6 must be constructed in Hoddle Street to the satisfaction of the Responsible Authority. Any electricity poles affected by these intersection works must be relocated to the satisfaction of the Responsible Authority.

16 Prior to a Statement of Compliance being issued for the appropriate stage, the subdivision roads must be fully constructed, including drainage, and kerb and channel to a width of 7.3 metres between the backs of kerbs, to the satisfaction of the Responsible Authority. A modified T traffic calming treatment, favouring the southern leg of the internal intersection, must also be constructed as part of the road construction,

17 Prior to a Statement of Compliance being issued for the appropriate stage, a concrete vehicle crossing must be constructed for each lot, to the satisfaction of the Responsible Authority.

18 Prior to a Statement of Compliance being issued for the appropriate stage, a concrete footpath 1.4 metres wide must be constructed on one side of each subdivision road, and the western side of Noddle Street across the property frontage to the satisfaction of the Responsible Authority.

19 Prior to a Statement of Compliance being issued for the appropriate stage, piped drainage must be constructed to drain all lots and the external catchment to the satisfaction of the Responsible Authority.

20 Prior to a Statement of Compliance being issued for stage 2, piped outfall drainage from the subdivision to the existing Council drain at 5 Birrarrung Rise, allowing for development of downstream catchments, must be constructed to the satisfaction of the Responsible Authority.

21 Prior to the commencement of road and/or drainage works for the appropriate stage as required by this permit, civil engineering construction plans an estimate for the works shown on these plans must be submitted together with a checking fee to the value of 0.75% of the estimated cost of these works, for formal approval.

22 Prior to a Statement of Compliance being issued for the appropriate stage, an inspection/surveillance fee to the value of 2.5% of the cost of the road and/or drainage works must be paid to the Responsible Authority to the satisfaction of the Responsible Authority.

23 Prior to a Statement of Compliance being issued for the appropriate stage, a maintenance bond to the value of 5% of the cost of the road and/or drainage works or $1000.00, whichever is greater, must be submitted to the Responsible Authority.

24 Prior to a Statement of Compliance being issued for stage 1, advice must be received from the relevant Electricity Supply Authority that the developer has agreed to fund the installation of street lighting at the intersection of the subdivisional road and Noddle Street to the satisfaction of the Responsible Authority.

25 Prior to the approval of engineering construction plans, a plan of creation of easement 4.0 metres wide over the outfall drainage through the lots on CP168887P and PS519976 will be lodged and approved by the Titles Office, to the satisfaction of the Responsible Authority.

26 Prior to the approval of any civil engineering construction plans, a drainage strategy must be submitted to the Responsible Authority for approval. The drainage strategy must show how all drainage runoff is to be controlled and must include catchments within and external to the subdivision where these catchments are deemed to be affected by or to have an effect on the subdivision.

27 Prior to the commencement of road and/or drainage works as required by this permit a Traffic Management Plan must be submitted to the Responsible Authority showing the proposed provision for traffic management and signing for the duration of the works at least 21 days prior to the commencement of the works. The Traffic Management Plan shall meet the requirements of the AS. 1742.3-2002 "Traffic Control Devices for Works on Roads".

28 Prior to the issue of a Statement of Compliance, the owner shall enter into and comply with an agreement with Melbourne Water Corporation, under section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system.

29 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

30 Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

31 The owner of the subject land must enter an agreement with Yarra Valley Water for the provision of water supply.

32 The owner of the subject land must enter an agreement with Yarra Valley Water for the provision of sewerage.

33 Operable hydrants must be provided above or below ground, and must be identified to the satisfaction of the CFA.

34 The maximum distance between a hydrant and the rear of a building envelope (or in the absence of a building envelope, the rear of a lot) must be 120 metres and hydrants must be no more than 200 metres apart.

35 Constructed roads must be either 7.3 metres or greater, or 54 metres in trafficable width. Roads must be constructed so that they are trafficable in all weather conditions and capable of accommodating a vehicle of 15 tonnes for the trafficable width.

36 The average grade of roads must be no more than 1 in 7 (14.4%) (8.1 degrees) with a maximum of no more than 1 in 5 (20%) (11.3 degrees) for no more than 50 metres and dips in roads have no more than 1 in 8 (12.5%) (7.1 degrees) entry and exit angle.

37 Constructed roads of more than 60 metres in length from the nearest intersection must have a turning circle with a minimum radius of 8 metres (including roll over kerbs if provided) or other turning solutions using T or Y heads of specified dimensions to the satisfaction of the CFA.

38 Prior to a Statement of Compliance being issued by the Responsible Authority, the owner shall provide to the satisfaction of Telstra all works for provision of telecommunications services to each lot created in the subdivision.

39 Where any extension or alterations to Telstra's network or plant are necessitated by the proposed subdivision, the cost of such works shall be met by the owner prior to the Statement of Compliance being issued.

40 The plan submitted for certification must show details of easements and/or RCM/RIM sites which may be required by Telstra. The owner will be advised of the details of easements and/or RCM/RIM sites which may be required by Telstra, following an application to Telstra for provision of cable reticulation.

41 The Plan of Subdivision submitted for certification must be referred to Telstra in accordance with Section 8 of the Subdivision Act 1988.

•

Enter into an agreement with SPI Electricity Pty Ltd for supply of electricity to each lot on the endorsed plan.

•

Enter into an agreement with SPI Electricity Pty Ltd for the rearrangement of the existing electricity supply system.

•

Enter into an agreement with SPI Electricity Pty Ltd for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by SPI Electricity Pty Ltd.

•

Provide easements satisfactory to SPI Electricity Pty Ltd for the purpose of "Power Line" in the favour of "Electricity Corporation" pursuant to Section 44 and Schedule 2 of the Electricity Industry Act 1993, where easements have not otherwise been provided, for all existing SPI Electricity power lines and for any new power lines required to service the lots on the endorsed plan and/or abutting land.

•

Obtain for the use of SPI Pty Ltd any other easements required to service the lots.

•

Adjust the position of any existing SPI Electricity Pty Ltd easement to accord with the position of the electricity line(s) as determined by survey.

•

Set aside on the Plan of Subdivision reserves for the use of SP/ Electricity Pty Ltd for electric substations.

•

Provide survey plans for any electric substations required by SPI Electricity Pty Ltd and for associated power lines and cables and execute leases for a period of 30 years, at a nominal rental with a right to extend the lease for a further 30 years. SPI Electricity Pty Ltd requires that such leases are to be noted on the title by way of a caveat or a notification under Section 88 (2) of the Transfer of Land Act prior to the registration of the Plan of Subdivision.

•

Provide to SPI Electricity Pty Ltd a copy of the Plan of Subdivision submitted for certification that shows any amendments that have been required.

The responsible authority is directed to issue a permit in accordance with this order.

Mr F Bertagno, Ms C Townsend and Ms J McDonald appeared in person.

Ms Townsend and Ms McDonald also appeared on behalf of W W Steart, V Gielen, M Stewart, and J and F Gielen.

1 This was an application under Section 79 of the Planning and Environment Act 1987 against the Yarra ranges Shire Council's decision to refuse the grant of a permit with respect to planning permit application no. YR-2004/2109. The permit application seeks permission for the subdivision of land known as 36-38 Hoddle Street Yarra Junction into 36 residential lots.

2 The permit application was lodged with the council in December 2004. The council required notice of the permit application to be given and in response it received 9 objections. The grounds of objection, as set out in the officer's report to the council on 24 May 2005, expressed concerns about the size of the proposed lots; impact on character; traffic; loss of vegetation; drainage and adverse impacts on amenity.

3 The council also referred the permit application to various external authorities[1]. These authorities advised the council that they would not oppose the grant of a permit although some required conditions to be imposed on any permit issued.

4 After the application for review was lodged, the council decided that it would grant a permit subject to conditions set out in the officer's report attached to the council's letter to the registrar dated 20 June 2005.

5 The subject site is located on the west side of Hoddle Street, about 600 metres south of the Warburton Hwy, Yarra Junction. The site comprises 2 adjoining lots. When combined, the 2 lots create a site with a frontage of about 150 metres, a depth of 278 metres with an overall area of about 4.2 hectares.

6 Each lot comprising the site is occupied by a single storey dwelling and associated outbuildings. Both lots are largely cleared of vegetation; however, there are stands of Monterey Pines adjacent to the west boundary and running through the centre of the site; various exotic and indigenous trees scattered near the dwellings as well as more dense vegetation toward the southwest corner. The site has an undulating topography, with the steepest slope toward the west boundary. A natural drainage line cuts through the site in a north-south direction.

7 Contextually the site is located on the southern edge of the Yarra Junction township. Properties to the north and east are primarily used and designated for residential use; some of which have been subdivided in relatively recent times with for residential use with minimum lot size of 1000 square metres. Properties to the south and west are more typically described as being used for rural living purposes. I also note that the Adanac Holiday Lodge Camp is located opposite the site in Hoddle Street.

8 The proposal involves the subdivision of the site into 36 lots. Lot sizes range from 656 square metres to 4001 square metres with the majority of lots being between 700-800 square metres. This gives an average lot size of 988 square metres. The lots are to be accessed via one main road extending from Hoddle Street that ends in a court design towards the western end of the site. There is also a second road that extends from the first that also ends in a court design. Roads are to be fully constructed and lots fully serviced by underground infrastructure.

9 The proposed works also include the removal of vegetation.[2] The vegetation to be removed includes trees regarded by the council as environmental weeds as well as those within the proposed road reserves. It is also proposed to remove indigenous and exotic plants that have been assessed as being of low retention value.[3]

10 Under the planning scheme, the site is located within the Residential 1 zone the provisions for which are found at clause 32.01. The site is not affected by overlay controls. I note that the site is within the Urban Growth Boundary [UGB] that extends around the site's western and southern boundaries.

11 A permit is required under clause 32.01-2 for the subdivision of land within this zone. The decision guidelines require that consideration be given to the planning scheme's policy frameworks as well as the provisions of clause 56. Other decision guidelines are at clause 65.

12 There is a raft of planning policies that are in some relevant to the consideration of the proposal. These include the policy at clause 16.01 [Residential development of single dwellings]; Clause 21.03-3, 21.04 and 21.05-3 of the MSS as well as the policy for Residential Areas - Subdivision at clause 22.01-4. Melbourne 2030 and the Regional Strategy, which is referred to in clause 53, is also relevant

13 The parties also drew specific attention to the Yarra Junction Urban Design Framework Plan, 2002 [UDF], prepared by consultants Green and Dale. I will discuss the relevance of this document later in these reasons.

14 After having considered the submissions, the details of the proposal and the relevant matters under the planning scheme and legislation, it seems to me that the key issues in this matter are firstly, whether the proposed density of lots is supported by the planning scheme's policies; and, secondly, whether the proposed subdivision and the use and development of each lot for a dwelling would have unreasonable impacts on the amenity of the area.

15 Whilst I consider these to be the key issues, it is relevant that make the following observations about matters that are relevant to the consideration of the proposal as a whole.

16 First, there was essentially no dispute that the site presents itself as a suitable candidate for an appropriately designed subdivision and for residential use and development. In this regard I note that the site is relatively large and free of significant constraints. For example, it is not affected by overlay controls; it is largely cleared of vegetation; the slope over most of the site is manageable; there are no awkward easements to contend with; all infrastructure services are available and it is in reasonable proximity to Yarra Junction's commercial centre. All of these factors contribute to the site's suitability for subdivision.

17 Second, there was no dispute that the proposed subdivision has been designed to meet the requirements of clause 56. In this regard, I note that there was nothing on the objectors' submissions to show that there has been a failure to comply with any of the objectives in this clause. The council accepts that the objectives are met.

18 Essentially, it seems to me that the objectors' primary concern with the proposal is that many of the lots proposed are less than 1000 square metres in area. In particular, the objectors submitted that the provision of lots less than 1000 square metres would be inconsistent with the UDF which specifies that lots in this part of the Yarra Junction should be between 1000 and 3000 square metres. The objectors argued that I should give weight to the UDF given that the council has adopted the principles set out in this document and it has been used in the assessment of other proposals like this.

19 Mr Patterson submitted that whilst the council considers the principles set out in the UDF, nonetheless, it has not been adopted as a policy nor has the formal amendment process to include it as either an Incorporated or Reference document in the planning scheme commenced. Further, Mr Marsden produced a letter from the council's Manager Planning Services[4] which commented on the status of the Structure Plan and the UDF in the following terms:

It is important to note the status of these plans. In presenting the plans to Council, it was acknowledged that both plans had gaps and limitations, and that neither could be adopted in complete form as a set guidelines to which the Council would be committed.

20 Mr Patterson and Mr Marsden submitted that I should give greater weight to the planning scheme's policies as they stand and that the proposal is essentially consistent with them.

21 Whilst I appreciate that the UDF was prepared in consultation with the local community, at this point in time, I am unable to give it great weight given that the council considers that the study has "gaps and limitations", it has not been formally adopted as policy and there does not seem to be any intention, at least in the short term, to have it referred to in the scheme. Applying the principles set out in the former Planning Appeals Board decision in Lyndale and Black [5], it would be inappropriate to give this document any great weight at this point in time.

22 Turning to the policies that are actually in the planning scheme, it seems to me that, in general terms, they encourage and support outcomes that achieve the consolidation of areas identified for urban use and development; contain development within the boundaries of designated townships; make effective and efficient use of infrastructure and facilitate the provision of a range of housing types to meet the needs of a diverse range of household types. Further, I note that the policy at clause 22.01-4 states the following with respect to lot size:

•

In a Residential 1 zone within Foothills Residential Areas or Rural Townships[6], the average size of lots in any new subdivision not be less than 1000 square metres, except if the proposal complies with the policies for medium density housing.

23 There are 2 points to be made about the above policy provision.

24 The first is that the policy does not require lots to have a minimum area of 1000 square metres; rather it calls for an average of 1000 square metres which allows for lots that are both less than and greater than 1000 square metres to be provided. I consider this to be the appropriate interpretation of the policy as it facilitates the provision of lots of varying size and at a range of densities. Indeed, to only provide lots of 1000 square metres or more would mean that the needs of those requiring smaller lots would not be accommodated within rural townships. I think this would be contrary to the thrust of policy which encourages diversity.

25 Second, the proposal provides lots at an average of 988 square metres. Whilst this is marginally below the 1000 square metres average, I consider that the extent to which it is not met is of a marginal nature. Further, I do not accept Ms McDonald's argument that the larger lots should be excluded from the calculation of the average as it would seem to me to be somewhat artificial to pick and chose what should be left in or left out of the calculation.

26 A further point to make is that the site is zoned Residential 1. It is an urban zone. Its purpose includes to implement planning policy and, specifically:

To provide for residential development at a range of densities with a variety of dwellings to met the housing needs of all households.

27 In my view, the argument that all lots must have a minimum area of 1000 square metres is unsustainable when consideration is given to the purpose of the zone and policy, both of which encourage a range of densities. As such, the conclusion I have reached is that the proposed subdivision enjoys the support of the planning scheme's policies and zoning provisions. The site is within the Residential 1 zone, within the UGB and within a defined township area. The strategic intent that underpins the zoning is that it is designated for urban use and development. The proposed subdivision and the eventual development of the lots for one dwelling are consistent with this.

28 I now turn to the second key issue, that is, whether the proposal would result in unacceptable impacts on the amenity of the area. Various matters were raised by the objectors and I set out my conclusions below.

29 It was submitted that the proposal would result in a development outcome that would not be in keeping with the existing character of the area which has a somewhat rural ambience given the large lots, spacing between buildings and vegetation in the surrounding area.

30 I accept that the proposed subdivision and the eventual development of the lots will result in change. However, the assessment of whether the response to neighbourhood character is reasonable must take into account the outcome envisaged by the zoning of the land and planning policy. The zoning and planning policy both call for and support an urban form of development on this site.

31 The proposed subdivision has been designed to achieve a lot yield that approximates the 1000 square metre "average" supported by the policy at clause 22.01-4. I agree with Mr Marsden that the subdivision layout has responded to the site's context with larger lots provided along the site's Hoddle Street frontage and at its western end where the slope is greater and more vegetation exists.

32 Further, I have considered the nature of the vegetation to be removed. Essentially, it mainly comprises species that the council considers to be environmental weeds [eg: Monterey Pines] with the others being either exotic or indigenous trees that have low retention value.

33 In terms of the interface with the property to the south, there are always going to be difficulties at zone boundaries, particularly when the zone purposes and policies are geared toward achieving different outcomes. However, with a boundary interface like this, it is inevitable that the degree of change will be reasonably abrupt at the interface between an urban and rural zone. I think that this would be so whether the lots in question are 1000 square metres or as proposed. The reality is that there will be a noticeable difference at the interface. This difference will, however, serve to clearly mark the boundary between the designated urban area and the surrounding rural area beyond the UGB.

34 Further, I am not satisfied that any "environmental" impacts associated with this proposal will not be inconsistent with what could reasonably be anticipated having regard to the zoning and policies that apply, bearing in mind that the site is not subject to "environmental" type controls such as those set out in the Significant Landscape, Vegetation Protection or Environmental Significance overlays. There are environmental issues covered by regional strategy plan; however, there was nothing presented to show that the impacts of this proposal would be inconsistent with this plan.

35 In my view, the proposed subdivision and the eventual redevelopment of each lot for a dwelling would result in a "character" outcome that is consistent with what could reasonably be envisaged having regard to the zone purpose and policy. If a low density residential or rural living transition was sought, then this could have been achieved by putting appropriate zones in place.

36 Concerns were raised about traffic impacts associated with this subdivision, particularly on Hoddle Street which has a sealed carriageway but gravel shoulders and swale drainage. The main concerns were that the road carriageway is too narrow to accommodate the additional traffic and that pedestrian safety would be put at further risk.

37 Applying conventional traffic generation benchmark figures, the eventual use of individual lots would result in a generation of between 8-10 vehicle trips per day; or a total of between 288 and 360 vehicle trips for the whole subdivision. Whilst this may on face value be considered to be a substantial amount of traffic, 2 points need to be made. First, assuming that 1000 square metre lots were proposed, even allowing for the need for some lots to be larger due site constraints, I doubt that the overall amount of traffic would be substantially reduced. For example, if the yield reduced by 6 lots, this would reduce the amount of traffic by between 48 and 60 movements per day.

38 In my view, the overall amount of traffic generated by this proposal would be relatively modest.

39 I would expect that the increased density would result in more noise and lighting; however, it would be noise and lighting of a residential nature. There was nothing presented that the amount or type of noise or lighting would be beyond that which could reasonably be expected having regard to the zoning of the site.

40 There was nothing presented to show that the proposed subdivision would result in unusual or unexpected impact in terms of pollution.

41 A concern was raised that the dwelling at 36 Hoddle Street has heritage values. However, the dwelling is not covered by heritage controls, nor was there any indication that it has been found to be of importance following a comprehensive study. Under the planning scheme controls as they stand, there is no impediment to the dwelling being demolished. Essentially this is a matter that is outside of my control.

42 The proposal has been considered by the council's engineers and external authorities. The need to replace the natural drainage line with more formal underground drainage has been accepted by the council. No engineering problems were raised by any of these authorities. They have recommended that conditions be included on any permit issued. Amongst other things, detailed designs will need to be provided.

43 Whilst I appreciate the concerns raised by Ms Townsend about drainage and flooding, I have no evidence to enable me to come to the conclusion that drainage issues cannot be handled in the usual way.

44 Ms Townsend also made submissions with respect to the impact on the Adanac Holiday Camp. Whilst I understand that the camp's board of management considers that the proposal would result in the loss of the "rural" or "country" setting, the reality is that the camp is located adjacent to land zoned for urban purposes. The policies and strategies within the scheme do not support the area zoned Residential 1 and within the UGB being kept for rural purposes.

45 I have no basis to conclude that noise generated by the activities associated with the camp would have unreasonable impacts on the amenity of an urban area. Places where many people, children in particular, such as schools typically exist in urban areas. Impacts, such as noise from children playing and traffic associated with drop offs and pick ups are accepted as part and parcel of living in an urban environment. I do not see why it would be different here.

46 I have already indicated that the proposed subdivision would not result in a substantial increase in traffic. If there are safety concerns, they are not directly caused by this proposal.

47 Based on the information that has been provided to me, I am also unable to conclude that the proposal would have any impact on the camp's sewerage systems.

48 Having regard to the above, I accept that the proposal should be approved. The site is in an area zoned for urban purposes. The proposed subdivision and the eventual development of lots for dwellings are consistent with the thrust of the planning scheme's housing and urban consolidation policies. The average lot size meets the intent of the policy at clause 22.01-4. Further, I consider that the lot size and layout is site responsive.

49 For reasons set out above, I do not consider that the visual, environment and amenity impacts would be inconsistent with those that could be reasonably contemplated by the site's zoning and policies that apply.

50 With respect to conditions, I note that Mr Marsden submitted that the applicant accepts all of the council's conditions, as set out in the officer's report attached to the council's letter to the tribunal dated 20 June 2005, except for condition 4, 5, 7 and 15.[7] In relation to the conditions in dispute, my views are as follows.

51 In condition 4, the requirement for development on each lot be limited to 1 dwelling only should not apply to Lot 1. Mr Patterson agreed to this amendment to the council's condition given the size of the lot. If this lot is to be developed with more than one dwelling, a permit will be required. The implications of any such development can therefore be considered. I accept that the one dwelling restriction should not apply to this lot.

52 I will, however, include a requirement in condition 4 that building envelopes be prepared for the various lots adjacent to the west and south boundaries showing that any first floor component is limited to approximately the front half of the lots. I consider this to be a reasonable measure to ensure an appropriate transition down to the surrounding rural area. The plans should be amended to show the building envelopes before certification.

53 I also note Mr Marsden's submission that the requirements set out in this condition should be in included in an agreement under Section 173 of the Planning and Environment Act 1987. I agree.

54 Mr Patterson agreed that condition 5 can be deleted having regard to the analysis of the vegetation to be removed and that further permits would be required under the Regional Strategy Plan to remove more vegetation.

55 I will modify condition 7 so that boundary fencing along the south boundary is provided to the satisfaction of the Responsible Authority. I have modified the condition in this way in light of Mr Marsden statement that the applicant wishes to negotiate with Mr Bertagna with a view toward the achievement an agreed outcome.

56 In relation to condition 15, I have not been persuaded that it is reasonable to require the road to be widened. Hoddle Street performs a wider community function and accordingly, the issue of equity arises. I also note objectors concerns about the way that Hoddle Street has been widened in the past. In my view a more holistic approach is required, probably in the form of a special charge or rate scheme. I consider it appropriate, however, to modify the condition so that an appropriate intersection treatment between the site and Hoddle Street is provided.

57 I will vary the council's decision as set out above.

[1] Melbourne Water, Origin Energy, CFA, Yarra Valley Water, TXU and Telstra.

[2] At the commencement of the hearing I allowed the permit application to be amended to include permission for vegetation removal. I allowed this amendment as the application documents made it clear that vegetation removal formed part of the proposal and all parties would have had the opportunity to review these documents.

[3] Aboricultural Report by Stephen Frank, Treelogic, dated November 2004.

[5] Lyndale and Black Pty Ltd and I O Black v MMBW (P82/1729 and P82/1730) [1983] 7 APAD at 477

[6] Yarra Junction is identified as a Rural Township in the MSS

[7] References to condition numbers is as per those in the officer's report attached to the council's letter to the registrar dated 20 June 2005. The numbering has changed in the order given the need for an additional "amended plans" condition and the deletion of the original condition 5.