The owner shall pay to the Council a payment for supervision of works external to the site being 2.5 per cent of the estimated cost of constructing such works external to the site, which are subject to supervision.

The owner shall pay to the Council a payment for checking of engineering plans for works external to the site being 0.75% of the estimated cost of constructing the works external to the site proposed on the engineering plan.

The owner shall lodge with the Council a refundable maintenance bond being 5% of the value of all works external to the site shown on the engineering plan.

The owner shall lodge with the Council a refundable outstanding works bond for works external to the site being the value of all completion works external to the site plus 25%.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

Mr I Pitt SC, who called the following expert witnesses:

Ms S Geddes, Mr J Greet, Ms T Bobrowski and Mr A Dunn (for Ms L Dunn)

1 This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Knox City Council ("the Responsible Authority") to refuse to grant a permit.

2 There being no objection I ordered that Mr A Dunn and Ms L Dunn be joined as parties, pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998.

3 The proposal, as described in the written submission of Ms Katz, and the written evidence of Mr Grogan, is as follows:

* Approximately 2110 sqm area of public open space centred on the existing Monterey pine plantation

* Creation of a body corporate landscaping ship parallel to the Ferntree Gully Road Frontage ranging between 6-12 in width.

* The provision of 2 spaces per dwelling, with at least one space under cover, and 28 spaces for visitors

4 Mr Skinner, in his written submission for the Responsible Authority, described the subject land and surrounding development as follows:

The site is located on the eastern side of Scoresby Road and extends east and south to Ferntree Gully Road encompassing all of the land in the triangle formed between these roads (with the exception of the Flames Restaurant). The land exhibits an extensive frontage to Ferntree Gully Road. A tree reserve owned by Council occupies a majority of the Scoresby Road frontage.

Despite the irregular site layout, this property exhibits similar length boundaries to each Main Road (197m - Ferntree Gully Road and 198m - Scoresby Rd) and occupies an area of approximately 3.4 hectares. The sloping topography fails approximately 8m from the northwest to the southeast, while a 2m wide easement traverses the site adjacent to the southern boundary.

The site is occupied by an existing dwelling and outbuildings located towards the Scoresby Road frontage. This dwelling was formerly occupied by a local historical identity, however the dwelling does not exhibit heritage significance.

A broad range of native and exotic vegetation is located around the site perimeter and within the western portion of the land, however the central and eastern sections of the site are cleared of vegetation. While a majority of this vegetation comprises native species, a significant stand of Monterey Pine trees exists in the north-western corner of the land.

The land is also subject to a S173 Agreement regarding the tree reserve situated along the Scoresby Road frontage. It is understood that this Agreement provides a right of access over the tree reserve.

The land is adjoined to its east and north by residential properties (typically single-storey houses) orientated to front the surrounding streets, however the rear secluded private open space yards of these dwellings are orientated towards to the site.

Directly opposite the subject site along both Scoresby Road and Ferntree Gully Road, the surrounding residential neighbourhoods have also been developed with conventional housing stock, predominantly comprising single storey dwellings located in established garden settings.

The local neighbourhood contains an intermittent scattering of double storey dwellings, however this dwelling form comprises a minority of the overall housing stock in close proximity to the subject site.

The site adjoins a convenience restaurant (known as 'Flames Charcoal Chicken') located on the north east corner of the Scoresby Road & Ferntree Gully Road intersection, while a Council Reserve and Petrol Filling Station comprise the southeast and southwest corners of this intersection.

5 The subject land is covered by the Knox Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct two or more dwellings on a lot, pursuant to Clause 32.01-4. Clause 55, Two or more dwellings on a lot and residential buildings, applies to the proposal.

6 The subject land is covered by Schedule 1, Remnant vegetation with a high degree of naturalness, and Schedule 2, Significant exotic and non-indigenous native trees, to Clause 42.02. A permit is required to remove, destroy or lop native vegetation pursuant to paragraph 3.0 of Schedule 1. A permit is required to remove, destroy or lop vegetation listed in the Schedule to paragraph 3.0 of Schedule 1, which includes the Monterey Pines located in the north-west corner of the subject land and exotic trees surrounding the homestead.

7 The subject land is covered by Heritage Overlay 47 (HO47), Greenlaw, Scoresby Road, Knoxfield, Monterey Pines (Pinus Radiata) pursuant to the Schedule to Clause 43.01, Heritage Overlay. A permit is required to remove, destroy, prune or lop a tree if the Schedule identifies the heritage place as one where tree controls apply, pursuant to Clause 43.01-1. The Schedule provides that tree controls apply with respect to the trees covered by HO47.

8 A permit is required to remove, destroy or lop native vegetation on land exceeding 0.4 hectares in area, pursuant to Clause 52.17.

9 A permit is required to construct or alter an access to a road in a Road Zone Category 1 pursuant to Clause 52.29. That Clause also provides that VicRoads is a Referral Authority with respect to a road declared under the Transport Act 1983. The Decision guidelines include the views of the relevant Road Authority.

10 Reference was made in the written submissions and written Statements of Evidence to a number of relevant planning policies. Those submissions and Statements of Evidence have been placed on the Tribunal file and I do not propose to repeat them in detail here.

1. The proposed development is not consistent with State and local planning policy in that it is not well designed consistent with neighbourhood character.

2. The proposed exclusively double-storey forms of the development are inconsistent with the character of the area.

3. The proposed Vehicular access point the Road is unsatisfactory and would result properties in that road.

4. The proposed removal of native vegetation is inappropriate.

5. The proposed dwellings would result in external amenity impacts to neighbours by way of overlooking and visual bulk.

1. The proposal is an outcome consistent with State and local planning policy.

2. The proposal is an appropriate response to neighbourhood character.

3. Double-storey forms are an appropriate response to the character of the Subject Land and the area.

4. Provision for vehicular access and egress is appropriate and would have no unacceptable detrimental impact on amenity to other properties serviced by the Ferntree Gully Service Road.

5. The development generally and the landscape proposals in particular warrants the proposed removal of native vegetation.

6. The proposal will not result in any unreasonable impact by way of overlooking or visual bulk.

7. The proposal is an appropriate response when measured against the ResCode criteria.

Victoria's Native Vegetation Framework - The Goal of Net Gain

13 Mr Skinner, in his written submission for the Responsible Authority, submitted:

In a recent decision of the Tribunal (Roman Catholic Trusts Corporation v Maroondah City Council 2004), Member Osborn found that "As stated earlier, the Net Gain approach as currently advised to municipalities includes the first step of avoiding adverse. impacts, particularly through vegetation clearance. Under the heading "Ensuring that Individual Protection and Clearance Decisions Contribute to Our Net Gain Goals", at page 22 of the Native Vegetation Framework it is stated that:

* An appropriate assessment of any potential impacts on native vegetation and management options that avoid clearing

Similarly the decision guidelines of the VPO require consideration of the reasons for removal of vegetation but also require consideration of the practicality of alternative options which do not require the removal of the vegetation.

Trees to be removed, as shown on plan 03-147 TS dated November 2003 prepared by John Patrick and Associates, were described in the Legend as:

"includes weed species, trees in poor condition and species unsympathetic to the native landscape setting"

This description appears to provide the basis of the decision to retain or remove trees and the Tribunal cannot find any discussion of whether or not there are layout or management options that would avoid removal of trees subject to planning control

In the same decision, Member Osborn also commented that "The VPO decision guidelines also require consideration 6f the habitat value of vegetation and as stated by Mr Carr, fauna] habitat can be provided whether a tree is alive or dead. Hence the intended removal of trees just because they are in "poor" condition does not take account of potential habitat value.

While certain weed species can be removed without a permit, the Planning Scheme encourages the retention of canopy trees whether indigenous or not. The decision to grant a permit for the removal of such trees requires a rationale other than trees in poor condition. species unsympathetic to the native landscape setting". Even at the level of the general principles of the NVF rather than detailed calculations of habitat hectares, the Net gain approach suggests that the impacts on vegetation should if possible be avoided and if unavoidable be minimised. Having considered the material provided, the Tribunal is of the view that an integrated and accurate approach to the consideration of all of the vegetation, based on all of the factors in the relevant overlays and on the NVF principles is warranted and has not been demonstrated sufficiently. " (emphasis)

It is not the intention of the Responsible Authority to walk this Tribunal through all of the aspects of Victoria's Native Vegetation Management - A Framework for Action, except to state that the Net Gain approach in respect of native vegetation is founded on this 3 step approach:

* If impacts cannot be avoided, to minimise impacts through appropriate consideration in planning processes and expert input to project design or management.

The Responsible Authority does not believe that the Applicant has appropriately achieved these' fundamental steps. Rationale for removal of the native vegetation has focused on the lack of quality in the vegetation, however this line of logic ignores fundamental VPO and NVF issues regarding habitat.

Furthermore, there has been no previous attempt by the Applicant to explain or provide justification for this residential development in terms of Net Gain under the NVF. The absence of information presented to the Responsible Authority must be regarded as a significant concern, particularly as it would appear that the removal of native vegetation is predicated on the notion of tree health, structure or form.

Of even greater concern to the Responsible Authority is that the proposed design response represents a misunderstanding on behalf of the Applicant that the wholesale clearance of existing native vegetation on this site can be remedied by new landscape planting. While Net Gain envisages offset actions, there must be a realistic and genuine exploration of alternative built form outcomes that attempt to retain and enhance remnant native vegetation.

The Permit Applicant has indicated that substantial re-planting will be undertaken to compensate for the loss of native vegetation from the site. This design approach ignores the principle of "avoiding adverse impacts" on native vegetation in the first place and fails to properly consider the role of remnant native vegetation as habitat corridors.

14 I asked Mr Skinner if this information had been requested by the Responsible Authority during consideration of the permit application. Mr Skinner responded that he did not believe so.

15 Mr Pitt submitted that this submission was outrageous. He submitted that this information was not requested as part of the Section 54 request for further information and there had been no suggestion until the submission for the Responsible Authority during the hearing with respect to a Habitat Hectare Assessment on the subject land. The issue of Net Gain was not a ground of refusal. Mr Pitt conceded that the Responsible Authority was not limited to the Grounds of Refusal, but it was subject to the rules of natural justice. Advice should have been provided if this issue was to be raised. Mr Pitt submitted that at no stage was it foreshadowed that the case for the Responsible Authority would go beyond the Grounds of Refusal. Mr Pitt submitted that the proposal had been dealt with in a balanced way in the Officer Report.

16 Mr Pitt responded to Mr Skinner with the respect to the decision of Mrs Osborn in Roman Catholic Trust Corporation v Maroondah City Council [2004] VCAT 257 (16 February 2004). Mr Pitt represented the Applicant for Review/Permit Applicant in that matter, apart from Day 1. He said that Dr Graeme Lorimer, of Biosphere Pty Ltd, an acknowledged expert in this field, had been called as an expert witness in that matter. Mr Pitt submitted that if the Applicant for Review/Permit Applicant had realised that the Responsible Authority was going to make submissions with respect to this issue he would have been required to consider how to respond.

17 Mr Pitt said that if he was to seek an adjournment it would be necessary to make an application for costs, and his client was facing substantial holding costs already for this large and expensive site.

18 Mr Pitt said he was instructed to request that if the Tribunal, on other grounds, were to determine that a permit should be granted the Applicant for Review/Permit Applicant would accept a condition that an appropriate report be provided to the satisfaction of the Department of Sustainability and Environment. The other parties did not object to this course of action being followed. I said that I would follow this general course of action if I was to decide, having regard to the other issues, that a permit would otherwise have been granted.

19 It is accepted that an Officer Report is one of the matters that can be considered although it is the Responsible Authority, or a delegate on delegation, that has the responsibility to make a decision. The Decision of Mr Marsden in Modern Living Design and Construction Pty Ltd v City of Box Hill and others 1 AATR 166, is relevant in this respect. I think it is worth quoting from the Officer Report with respect to Vegetation removal and retention, as follows:

The proposed removal and, retention of trees is identified in section 1.3. The proposed removal and retention has been considered with the benefit of an arborists report supplied by the applicant. In total it is necessary to remove only three native trees which the arborist has identified as having a high retention value, and only nine with moderate retention value. The majority of native trees to be removed (58) have low or nil retention value. Some Monterey Pines were identified as being hazardous and were recommended for removal.

The application was referred to Council's Conservation and Environment Department, who recommended that the Monterey Pines be removed (as they are an environmental weed), and that an area of open space be created in the area that has a greater concentration of native vegetation.

Having regard to the advice of the Conservation Architect's report provided by the applicant it is recommended that the Monterey Pines that are not immediately hazardous are retained. On this basis the best location for the open space is around the trees. Additional landscaping can be required by way of condition of approval (refer condition 2 of recommendation). The applicant has indicated that they intend to achieve a 30 per cent canopy cover and this can be achieved via new landscaping. In line with Council's Urban Design Framework significant new landscaping should be provided along the road boundaries of the site, and this can be required by way of specific words within condition 2 of the recommendation.

The applicant has submitted a detailed sustainability plan (prepared by Manidis Roberts Consultants) with the application. In summary the following sustainability measures are incorporated into the design:

* 5 star energy rating for each dwelling, including a gas-boosted solar water heater in each dwelling and gas-ducted heating;

* Installation of a rainwater tank for each dwelling for use in toilet flushing;

* Use of AAA rated water fittings and selected appliances;

* Incorporation of water sensitive urban design principles into the drainage design to reduce the pollutant load of storm water runoff from the site;

* Issue of a contractors manual to maintain environmental integrity during construction; and

* Landscaping using indigenous and native species that have low water requirements.

The concept of the sustainability measures incorporated into the development was presented previously by the applicant at an Environment Advisory Committee meeting, and the documentation was referred to Council's conservation officer.

While acknowledging that the sustainability measures outlined above, the Conservation and Environment Department suggest that a variety of other issues should be addressed, including:

* Assessment of vegetation removal under the net gain policy in the recently released Native Vegetation Management Framework;

* Removal of the Monterey Pines as discussed above;

* Opportunity for use of recycled or low manufacturing energy materials;

* Opportunity for solar powered lighting in walkways and recreational areas;

* Potential for up to 6 star gas ducted heating; and

* Provision of a full environmental management plan.

The developer has already submitted a package of sustainability measures which go significantly beyond the minimum required by planning law as it presently stands. There is no legislative triggers in respect of the matters identified above. In respect of the vegetation proposed to be removed, the developer is proposing a significant amount of new landscaping, as shown on the submitted landscaping plan. There is no need for a full environmental management plan on this site. Australand issue to contractors a suite of material to ensure development is appropriately carried out. A condition can be included on permit that this material be formed into a construction management plan and submitted to Council prior to development commencing.

20 This proposal will represent a significant change in the character of the neighbourhood. Dwellings to the north and east of the subject land have for a long time had a view over open land. Whatever development takes place this view will change. It is generally accepted that a transition from single storey to double storey dwellings is appropriate and this is what is proposed.

21 Clause 21.03-2, Infrastructure and Population Change, reads:

Residents and businesses value highly the retail, community and recreational facilities in Knox. These facilities contribute to Knox's high quality lifestyle image. The challenge will be to maintain the existing level of infrastructure in the future as the population matures and declines. In particular, the infrastructure in the more established areas to the north is in need of replacement, placing stress on the resources of Council. As families mature and household sizes decline, there will be a reduction in population density effectively reducing the number of people per square kilometre of established physical and community infrastructure. With reducing population densities, and the rate of new development slowing, the viability of infrastructure declines and its cost per household increases.

State and national policies of urban consolidation suggest that opportunities for more. consolidated new development and the revitalisation of older areas through medium density development will be important to maintaining physical services and community interaction as the broader trend for smaller household size continues.

More flexible use and multiple use of facilities are other options for ensuring their long term viability.

The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

Planning policies are directed to land use and development, as circumscribed by the Planning and Environment Act 1987, a primary objective of which is to provide for the fair, orderly, economic and sustainable use and development of land.

23 Clause 14.01-2, General Implementation for Settlement, reads:

Planning authorities should plan to accommodate projected population growth over at least a 10 year period, taking account of opportunities for redevelopment and intensification of existing urban areas as well as the limits of land capability and natural hazards, environmental quality and the costs of providing infrastructure.

In planning for urban growth, planning authorities should encourage consolidation of existing urban areas while respecting neighbourhood character. Planning authorities should encourage higher density and mixed use development near public transport routes.

Planning authorities should facilitate the orderly development of developing urban areas through the preparation of structure plans. The plans should take into account the strategic and physical context of the location, provide for the development of sustainable and liveable urban areas in an integrated manner, facilitate the development of walkable neighbourhoods and facilitate the logical and efficient provision of infrastructure.

Structure plans may consist of a hierarchy of plans that provide the broad planning framework for an area as well as the more detailed planning requirements for neighbourhoods and precincts within an area. Planning authorities should facilitate the preparation of a hierarchy of plans appropriate for the development of an area.

Responsible authorities should use any relevant structure plan in considering applications for subdivision.

24 This is a large site and it presents an opportunity for a integrated development. Various Divisions of the Tribunal had said on many occasions that respect for neighbourhood character does not mean repetition of an existing neighbourhood character. Such an approach would run contrary to policies of urban consolidation. This does not mean of course that urban consolidation policies override other policies, but as stated at Clause 11 a balance must be adopted.

25 Mr Pitt cited Rowcliffe Pty Ltd v Stonnington City Council [2004] VCAT 46 (29 January 2004), in which Mr Marsden and Ms Komesaroff said at paragraph 45:

As the Tribunal has repeatedly said, urban consolidation necessarily means that suburbs will change. The role of the planning system is concerned with managing that process of change. The planning system seeks development that respects neighbourhood character, not an endless repetition of what already exists. Endless repetition will not allow urban consolidation objectives to be attained.

26 There was concern about the visibility of the proposed development. Mr Marsden and Ms Komesaroff said at paragraph 54:

If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives which Clause 11 requires us "to give effect to". The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment.

27 Mr Marsden and Ms Komesaroff went on to say at paragraph 93:

It needs to be emphasised that "respectful" is not necessarily synonymous with "consistent". To "complement" is not necessarily synonymous with "to replicate", nor is contemporary architecture somehow precluded by the planning controls. The very structure of the Urban Design Policy emphasises this point, as it clearly contemplates "higher scale development" in certain areas or zones. Whether a building "complements" its setting is a function of a number of factors including setbacks, the modulation of facades to allow the interplay of light and shade, available space for planting, the use of a varied palette of materials, and the like.

28 I accept what was said by Mr Marsden and Ms Komesaroff and I consider that this proposal is consistent with what they said.

29 It was submitted that the subject land is some 800 metres from the closest neighbourhood activity centre of Knoxfield. Melbourne 2030 does not seek to prohibit such development as proposed for this location. Clause 21.07, Making Better Use of Urban Facilities and Services, provides under Policy and exercise of discretion:

* Encouraging medium density development in the Residential 1 Zone within 500m walking distance to activity centres identified on the Strategic Framework Plan.

The site is located approximately 800m from the neighbourhood activity centre of Knoxfield. This is in excess of the distance referenced in the local policy for locations suitable for medium density housing. This Strategic Framework Plan contained in Clause 21.04 identifies only Knoxfield Neighbourhood Centre located with the central pad of the Municipality of Knox. Strict adoption of the 500m radius would then preclude a significant proportion of the municipality from appropriate medium density housing that would assist in arresting the population decline that the MSS also identifies. The subject site is considered appropriate for medium density housing as it displays the characteristics that one would expect from a location close to a neighbourhood centre including:

* Frontage to a main thoroughfare. The site has direct frontage to two road zone 1 roads, each with two lane way traffic each way carrying significant volumes of traffic daily.

* Good Access to public transport and high levels of connectivity. Bus routes operate on both frontages and walking and cycling trail access is available through the open space reserve to the south west of the site.

* Variety of built forms where non residential uses are evident. Residential properties are located around the site but a key feature of views from Ferntree Gully Road is the existing commercial and industrial uses that present different forms of buildings with reduced levels of landscaping, greater views of car parking areas and larger and bulkier buildings. The subject development allows for an appropriate transition between the two forms of developments from the main road commercial development s to the smaller scale residential areas to the north.

31 I accept this evidence and I consider that this is an example where one must balance consideration of what maybe conflicting planning policies.

32 Mr Pitt made reference to the Urban Development Program Report 2003, Department of Sustainability and Environment. The Report states by way of Overview at page 56:

Future residential development in the East Region will largely occur in established areas. There is very limited broadhectare land still available in the region, located mainly in the municipalities of Knox, Maroondah, and Yarra Ranges. There is no designated growth area in the East Region.

Details of the future broadhectare development, and proposed sequencing of developers, are presented in the following residential maps for the East Region: Maps la, lb, 3, 4, 5, 6, 7, and 10 - refer to the East Region residential index map opposite. Estate names of current developments are also shown.

Based on current information, the future construction of dwellings from major redevelopment sites will occur mainly in the municipalities of. Manningham, Monash, and Boroondara (Maps 2, 3, 4, 8, and 9). More limited opportunities have been identified in Maroondah, Stonnington (Malvern) and Knox (Maps 4, 8, and 10).

Overall, the share of potential dwellings from the East Region is expected to continue as for the recent past (refer to Figures 3.3, 3.4, 3.7 and 3.8).

33 Map 10 at page 70 indicates under Broad Hectare that the subject land would be taken up for development in the next one to two years. The subject land therefore is clearly designated as being appropriate for such a development in the short term.

34 The subject land is in a Residential 1 Zone and satisfies the purpose of the zone. I consider that it satisfies State and Local Planning Policy, it does provide for a variety of residential development compared to the surrounding development and it respects the character of the neighbourhood, whilst not imitating the character of the neighbourhood.

35 All of the dwellings are proposed to be double storey dwellings with three bedrooms at the upper level. There is however a diversity of dwelling arrangement and the proposal does provide a diversity compared to dwellings in the surrounding area.

36 Access from the proposed development to Ferntree Gully Road was criticised but I accept the recommendation of Mr Grogan that the one-way service road be modified to run south-west instead of south-east. VicRoads, as a Referral Authority, originally required a median width of 1.8 metres opposite the access to Scoresby Road. VicRoads has now agreed that a 1.2 metre width would be adequate, and I consider that a 1.2 metre median width would be appropriate.

37 It was the evidence of Mr Grogan that traffic generated by the proposed development would have minimal impact on future operating conditions of Ferntree Gully Road and Scoresby Road. I accept this evidence with appropriate conditions.

38 There was criticism of overlooking from upper level bedroom windows to dwellings to the north and east. Various Divisions of the Tribunal have said on a number of occasions that because of the nature of use of bedrooms overlooking is not as significant as for other habitable rooms. Standard B22 is satisfied in most cases. I consider that the overlooking objective at Clause 55.04-6, which is to limit views into existing secluded private open space and habitable room windows, is satisfied having regard to the nature of the rooms. I accept the evidence of Ms Katz in this respect.

39 The land in the south-west quadrant is covered Vegetation Protection Overlay Schedule 1 and the land in the north-west corner of the subject land is the subject of Vegetation Protection Overlay Schedule 2, which is substantially the same area as that protected by Heritage Overlay 47 (HO47). The Decision Guidelines at Clause 42.02-3, Vegetation Protection Overlay, include:

* Whether the land includes a land management program or works program

40 A tree management plan is part of the application.

41 Paragraph 2.0 of Schedule 1, Vegetation protection objective to be achieved, includes:

* To retain vegetation which is rare, threatened or recognised as being of local, regional or State significance; and

* To retain vegetation which provides natural beauty and interest.

42 I do not consider that the removal of vegetation proposed will be inconsistent with the Vegetation protection objective to be achieved.

43 Paragraph 4.0 of Schedule 1, Decision Guidelines, includes:

* Relocation of existing vegetation on the land and the areas of vegetation to be removed.

* The compatibility of any buildings and works with existing vegetation proposed to be removed.

44 The native vegetation proposed to be removed is well scattered and would be an impediment to this development or a similar development. I consider that what is proposed is consistent with the Decision guidelines.

45 The Decision guidelines at paragraph 4.0 of Schedule 2, Significant exotic and non-indigenous native trees, are identical to those for Schedule 1. Again I consider that what is proposed is consistent with those Decision Guidelines.

46 It was the evidence of Mr Wyatt, the Consultant Landscape Architect who was called as an expert witness for the Applicant for Review/Permit Applicant, with respect to the Monterey Pines:

There are also Monterey Pines in the north west corner. The heritage appraisal and 'Recommendations on Future Subdivisions' prepared by Allom Lovell and Associates recommends that the Monterey Pines be retained. None of the Monterey Pines received a high retention value in the arborists report due to their poor quality and potential danger of dropping limbs.

Monterey Pine (Pinus radiata) is also listed as an environmental weed in the Knox City Council's appendix 2 to the Landscape Plan Guidelines.

I believe that the Monterey Pines (Pinus radiata) are unsuitable for urban areas and these poor specimens would be better if removed. These should not form a basis for new planting on the subject site.

The indigenous trees should form the basis for the native planting.

It is further submitted that this Heritage Overlay provides an interesting example of the necessity for balancing different policies given that, as Mr Wyatt observes, when viewed from an environmental aspect Monterey pines are identified, it is submitted correctly, in the Local Planning Policy Framework as an environmental weed and is a tree species which is potentially hazardous in an urban context.

48 I consider that this proposed tree removal is consistent with both of the Vegetation Protection Overlays and Heritage Overlay.

49 It was the evidence of Mr Wyatt with respect to planting on the northern and eastern boundaries:

The species shown planted along the boundaries are generally suitable for this location. However I believe that the planting layout could be improved through the planting of additional trees supplemented with understorey planting.

50 I consider that the proposed planting on the northern and eastern boundaries will help to minimise any perceived mass and bulk.

In conclusion I believe that there are no landscape reasons why the proposed development should not be granted a permit.

The Landscape Plan prepared by John Patrick Landscape Architects shows an appropriate landscape, solution, in keeping with the nature of the development and the surrounding landscape character as well as following Council guidelines.

* The indigenous trees being retained provide an excellent basis for the future landscape development of the site.

* The proposed species will be suitable for a residential development, and will provide a positive contribution to the neighbourhood character and will build upon the indigenous character of the area.

* The landscape treatments of the boundaries provide a positive contribution to the streetscapes of Scoresby and Ferntree Gully Roads. The drainage swale design elements offer a landscape opportunity and will avoid major disturbance of root zones of existing trees to be retained.

* The internal planting is appropriate, however I have recommended that changing road species to a smaller indigenous tree that would allow the planting of greater numbers of trees along the road may be an improvement.

* Planting is provided to individual allotments with garden areas and trees being provided to the front areas while one tree per allotment is provided in the rear yards.

52 I consider that the landscape proposals are appropriate, subject to further consideration with respect to "Net Gain".

53 Mr Pitt suggested a condition that a report be prepared on the matter "Net Gain" to the satisfaction of the Department of Sustainability and Environment. Ms Monk and Ms Kullen, in Application for Review No. P1876/2003 Lorne Country Club Inc and Avrio Pty Ltd v Surf Coast Shire Council included a condition that such a report be to the satisfaction of the Responsible Authority following consultation with the Department of Sustainability and Environment. Ms Monk and Ms Kullen said in their Reasons:

32. Mr Canavan submitted, having regard amongst other things to his client's expenditure so far on environmental research and analysis, as well as on other landscape and design reports, that it would be reasonable in the present circumstances to grant a permit subject to a secondary consent condition, requiring net gain to be achieved to the satisfaction of the Responsible Authority. As submitted by him this could be made conditional also on consultation with the Department of Sustainability and Environment. The Biosis Report had recommended the imposition of such a condition although its drafting referred to the Department being the agency to be satisfied. However, as noted by Mr Canavan, because the Department is not a specified body under Section 149 of the Planning and Environment Act it would not be appropriate to make any secondary consent conditional upon it being satisfied. By not being a specified body for the purpose of Section 149, a dispute in relation to whether it could be satisfied would not be able to be reviewed pursuant to this provision.

54 I consider that the approach of Ms Monk and Ms Kullen in this respect is appropriate.

55 The Responsible Authority provided draft conditions that might be considered in the event that I was to direct the grant of a permit. The proposal is for internal infrastructure to be a body corporate responsibility and some of the draft conditions suggested would therefore be inappropriate.

56 Draft Condition 1.6 would require that visitor parking be located no closer than 30 metres to Scoresby Road. I do not consider that such a condition is necessary.

57 Landscaping should be generally in accordance with the John Patrick Concept Plan forming part of the permit application, subject to changes suggested by Mr Wyatt.

58 Draft Condition 6.1 should include for cost of repairs or construction of fencing.

59 Mr Pitt opposed Draft Condition 7 with respect to a legal indemnity to the Responsible Authority with respect to waste collection. He submitted that there should be a condition that before the dwellings are occupied the owner must make an arrangement for collection of domestic rubbish to the satisfaction of the Responsible Authority, and that there could be an indemnity against damage to common property caused in the course rubbish collection other than damage caused wilfully or by the negligence of the rubbish collector. I consider that that is appropriate.

60 Mr Pitt submitted that Draft Condition 23, payments and bonds, should refer to works external to the subject land, and I agree.

61 As foreshadowed there will be a condition requiring the service road along Ferntree Gully Road to operate in the opposite direction to that proposed, and a condition requiring a "Net Gain" report to the satisfaction of the Responsible Authority following consultation with the Department of Sustainability and Environment.

62 For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.