* The exact boundaries and areas of the proposed two lots showing lots of at least 1 hectare in area.

* Access to proposed Lot 1 to be provided off Edenvale Crescent and is to be to the satisfaction of the Responsible Authority.

* A minimum setback of 4 metres from the southern boundary of proposed Lot 1 and 2 for effluent absorption fields for both lots, as required in the Septic Tanks Code of Practice, to the satisfaction of the Responsible Authority.

* The existing effluent disposal field location for Lot 2.

2. This permit shall expire if the plan of subdivision hereby permitted is not certified within two (2) years of the date hereof or any extension of such period, the Responsible Authority may allow in writing of an application made before or within three (3) months after such expiry.

3. Prior to the issue of a Statement of Compliance under Section 21 of the Subdivision Act 1988, the access point to Lot 1 must be located and constructed to a standard satisfactory to the Responsible Authority.

4. Access to all lots must be in accordance with Council's vehicle crossing policy. A vehicle crossing permit must be obtained prior to any access works commencing.

5. 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.

6. 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.

7. 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.

8. All sewage and sullage waters shall be treated in accordance with the requirements of the Environment Protection Authority and the Murrindindi Shire Council. All effluent shall be disposed of and contained within the curtilage of the land and shall not discharge directly or indirectly to an adjoining property, street or any water course, water storage or dam. Sufficient land shall be set aside and kept available for the purpose of effluent disposal.

9. Prior to the issue of a Statement of Compliance under Section 21 of the Subdivision Act 1988 and following receipt and assessment of the plan required under Condition 1, the Responsible Authority may require the owner of Lot 2 to install a sewerage treatment plant and effluent disposal system to accommodate the potential reduction in the existing effluent disposal field resulting from this subdivision.

Mr G Scale, Development Manager, represented the Responsible Authority.

Mr C Banon, Town Planning Consultant, represented the Applicant for Review.

Mr & Mrs M Grech, Respondent/Objectors, appeared in person.

Application under S.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

Murrindindi Planning Scheme - Low Density Residential Zone.

1. The subject land is located at the intersection of Amlyn Court and Edenvale Crescent, Kinglake West. It is situated in a Rural Residential Subdivision containing in excess of 100 allotments which was created in the 1980s. The subdivision is almost fully developed. While the predominant lot size is 2 hectares, there are a number of smaller lots in the order of 1 hectare. A seven lot subdivision approved by the Responsible Authority some 12 months ago contains four lots of approximately 1 hectare. That subdivision is situated some 100m to the west of the subject land.

2. The site has an area of 2.1 hectares, is cleared of vegetation and supports a single dwelling. Amlyn Court is fully sealed. Electricity and telecommunication services are available to the subdivision, but there is no connection to reticulated water or sewerage.

3. The land is located within a Low Density Residential Zone. The Applicant seeks a permit to subdivide the land into two allotments of 1 hectare and 1.1 hectare respectively. The application plan is appended to this determination.

4. The application was advertised and an objection received from Mr & Mrs Grech, the owners of the adjoining land to the south. The Responsible Authority summarised their grounds of objection as follows:-

* Purchased in an area because of quietness and being out of suburbia.

* Had been told that there could be no subdivisions in this estate below 5 acres in size.

* Effect on amenity with another house, family, traffic, etc.

* Building could be on highest point leading to lack of privacy.

* Applicant subdividing out of personal reasons.

5. The Council also received a petition signed by 38 persons in opposition to the proposal. The main points of the petition were:-

* Precedent could be set which will adversely affect continued enjoyment of living environment afforded by 2 hectare lots.

* 2 hectare lots were primary reason for buying and building in area in first place.

* Panel report for planning scheme and Low Density Residential zone decision guidelines discuss protection of character of area, provision of utility services including provision of sewerage, water and drainage.

6. On 18 July 2000 the Responsible Authority considered the application, the objections and a report from its officers recommending that a permit be granted. It resolved to refuse the application on the following grounds:-

1. The proposal will lead to reduced amenity of the area.

2. The proposal will have a detrimental effect on the environmental quality of the area.

7. On the hearing each of the parties tabled and read written submissions. It is unnecessary to repeat all that was said. It is clear from the material before the Tribunal that the Council has been dilatory in proceeding with planning policies for the Kinglake West area, notwithstanding a strong recommendation from the Panel which reviewed the new format planning scheme, and suggestions in various decisions of this Tribunal.

8. Mr Scale submitted that it was Council's intention to prepare a planning policy for Kinglake West which would restrict development to a minimum lot size of 2 hectares. Thus, he submitted, it would be inappropriate and premature to approve the present application.

9. The facts however are clear. There has been ample time since the adoption of the new format planning scheme to investigate local planning issues, but the Responsible Authority has failed to do so. The Tribunal is unable to give weight to a policy which is yet to be formulated.

10. Mr Scale also questioned the ability of the lots to retain waste water, a concern endorsed by Mr & Mrs Grech. The overwhelming evidence is however that problems are unlikely to arise. The Council's Environmental Health Officer has twice examined the proposal and does not oppose it. A report from Rapley Bassett & Associates, Civil Engineers, confirms that percolation rates comfortably meet prescribed standards, there is ample space available in which to locate effluent lines and the requirements of the septic tank Code of Practice can be met with a degree of comfort. The contention advanced by Mr Grech to the effect that health hazards will arise is simply far fetched.

11. Mr Grech also expressed concern regarding potential flooding to his property due to increased hard surface areas. While this is a relatively high rainfall area, the Tribunal notes that:-

* any dwelling will harvest the water from its own roof catchment in order to maintain a tank supply; and

* it is not proposed to construct an impervious surface to the driveway.

12. There is, the Tribunal accepts, occasional short term ponding of rainwater on the Grech land as the topography falls in that direction. However, the development of one detached dwelling is unlikely to influence that situation one way or another.

13. The objections seem to proceed on the basis that any increased density in the subdivision will create a precedent of some kind. There are however many lots in the order of 1 hectare in this area. The fact that this is a corner lot also reduces visual impact and, given the separation distances involved, issues such as noise, privacy and the like simply do not arise. Nor was there any factual information provided to support an assertion that ground water would be detrimentally affected by further subdivision.

14. In the light of these various findings it is illuminating to read the assessment provided by the officers to the Council. The report stated:-

* The subdivision is well within the 0.4 hectare minimum and complies with the decision guidelines in the Low Density Residential Zone.

* A seven (7) lot subdivision (lots ranging from 1 to 2.17 ha) was issued in March 2000 for land at the end of Amlyn Court.

* Prior to the approval of the Murrindindi Planning Scheme, the subject land and area was zoned Rural Residential under the Yea Planning Scheme; this zone had an average lot size of one (1) hectare with a minimum lot size of 0.5 ha.

* No planning permit is required for the use of land for a dwelling in the Low Density Residential Zone.

* The percolation test indicated that the subject site is suitable for the disposal of domestic wastes by septic tank and is within the septic tank code of practice.

* Residential development and consolidation should be encouraged in the main townships to encourage infrastructure investment.

* It is important to encourage the consolidation of residential lots in existing residential zones in Kinglake as there appears to be a real demand, some land in Kinglake is environmentally constrained which limits the opportunities for residential development and the Murrindindi Planning Scheme states that there should be no further expansion of residential areas until reticulated services can be provided and a strategy investigating services has been prepared.

* The feasibility of preparing a strategy for Kinglake and the cost efficiency of any provision of reticulated services is unknown at this stage, making any further Low Density Residential rezonings unlikely in the immediate future.

* The subject land is suitable for further subdivision into two (2) lots; the proposal can overcome points of objection that have been raised.

* Despite negotiations between the applicant and objectors, the objectors are unwilling to withdraw their objection.

15. These are all positive aspects of this proposal. In resolving to overturn the officer's recommendation, the Council seems to have ignored these matters.

16. In presenting his case, Mr Banon drew the Tribunal's attention to the decision of Gooley v Murrindindi Shire Council (2000/59150, unreported) a case which, although involving land situated at Alexandra, has a number of similarities to the present situation. In that decision the Tribunal stated:-

The Tribunal is satisfied that the proposed subdivision will meet the purposes and provisions of the Low Density Zone. It considers the lot sizes meet the minimum requirements stipulated in the planning scheme and that the applicant has demonstrated that the site can treat and retain all wastewater on site in accordance with the purpose and provisions of the planning scheme.

The Tribunal acknowledges that most other lots in the subdivision are of a lower density than the subject subdivision. However, that does not necessarily mean this subdivision will undermine the integrity of this pleasant low density subdivision.

The Tribunal acknowledges that to allow all lots in the subdivision to be carved up into 0.4 hectare lots, may tend to undermine the integrity of this low density subdivision, however this is not to say that some lots could not be of a smaller size. There may be circumstances, such as the present case where an individual application can be considered on its merits rather than being predetermined on the basis of an unpublished "proposed policy".

The applicant has demonstrated that he can meet the intent and requirements of the planning scheme as it exists. If the Responsible Authority wants to change this position, it must take steps to change the planning scheme through proper channels".

17. This division of the Tribunal entirely agrees with and adopts those observations.

18. It follows from what has been said that the grounds of refusal and objection have not been sustained. It is appropriate that a permit issues subject to conditions and the Tribunal will so order.