1. Prior to the submission of a Plan of Subdivision to the Responsible Authority for certification, an amended plan generally in accordance with the plan tabled at the hearing showing fill contours and 42 lots and signed by the Tribunal Chair and dated 3 September 2003 but modified to show:

A. Appropriate drainage easements, in favour of the Mornington Peninsula Shire.

B. Appropriate water and sewerage easements, in favour of South East Water, for all existing or proposed South East water mains and sewers located within the land.

C. Appropriate easements satisfactory to United Energy, where easements have not been otherwise provided, or all existing United Energy electric power lines required to service the lots on the endorsed plan and/or abutting land, for the purpose of "power line" as defined in the 7th schedule of the "SEC Act 1958" in favour of United Energy.

D. Areas set aside as suitable sites for reserves for electric substations required to service the lots for use by United Energy.

E. Easements and/or RCM/RIM sites which may be required by Telstra.

F. The building envelope for Lots 22, 23, 24, 25, 26, 27 and 28 must be setback at least 8 metres from the northern or common boundary of each lot with the existing residential lots in Cootamundra Avenue.

G. A wetland/retarding facility adjacent to Chinamans Creek as outlined in the Condina/Craigie Surface Water Management Report dated July 2002 and designated as a drainage reserve on the certified plan.

The land containing this facility shall be shown as a municipal drainage reserve on the plan of subdivision and not as Lot 42.

H. All lots in the subdivision (excluding drainage reserves) must be filled to a 3.2 metre Australian Height Datum to cover a reasonable building envelope or such other flood level determined by the Responsible Authority.

I. This amended plan must be submitted and approved to the satisfaction of the Responsible Authority and when approved such plan will become the endorsed plan under this permit.

J. Installation of fencing to the drainage retardation and treatment facility to the satisfaction of the Responsible Authority.

2. Prior to the commencement of any works for the subdivision, the owner of the subject land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987.

2.1.1 All works that are to vest in Council, such as roads, footpaths, street reserves and drain as must be designed, supervised and constructed in accordance with the current version of the document entitled "Mornington Peninsula Shire Quality Standards - Subdivisional Works" as at the date of the issue of this permit and to the satisfaction of the Responsible Authority.

2.1.2 Insurance covering public liability during the period of construction of such works until Council issues an Acceptance of Works Certificate and in addition, professional indemnity insurance for consultants involved in the design and supervision of the said works, all to the satisfaction of the Responsible Authority.

2.1.3 A 12 month post-construction defects liability period for the said works secured by a bond for an amount not exceeding 5% of the value of such works for the whole of the subdivision to the satisfaction of the Responsible Authority.

2.1.4 The maintenance of the drainage retardation and treatment facility for a two year period, commencing from the completion of the facility to the satisfaction of the Responsible Authority.

2.2 Such agreement may provide that it will end in accordance with Section 177 of the Planning and Environment Act 1987 in relation to any particular stage of the subdivision (including the final stage) upon the satisfactory completion of the said works in any such stage and the lodgement of a bond or other security to cover the defects liability period referred to in Condition 1.1.3 to the satisfaction of the Responsible Authority.

Note: The costs in preparation and registration of such agreement are to be met by the subdivider.

3. Prior to the commencement of any works on the site, a drainage and storm water management plan for all construction works in accordance with Best Practice must be submitted to and approved by the Responsible Authority. The Management Plan must address the treatment of storm water from the subject land to prevent polluted or sediment laden run off from discharging directly or indirectly into the drainage system in accordance with the recommendations of the Pat Condina and Neil M Craigie report submitted in evidence to the Tribunal.

Drainage construction plans, including plans for the construction, landscaping and fencing of the stormwater retardation and treatment facility, shall be submitted to the satisfaction of the Responsible Authority in accordance with the management plan and shall be signed by Mr Pat Condina and Mr Neil Craigie or otherwise certified to the satisfaction of the Responsible Authority as complying with the report submitted in evidence to the Tribunal.

4. This permit will expire if the Mornington Peninsula Shire Council has not certified the Plan of Subdivision within 5 years of the date of issue of this permit. The Responsible Authority may allow, in writing, an extension of this permit upon the application being made before or within 3 months after the expiry date.

5. Prior to the certification of the Plan of Subdivision hereby permitted, the Plan must be referred to South East Water, United Energy, Telstra and CFA in accordance with Section 8 of the Subdivision Act 1988.

6. There must be no obstructions within 1 metre of the edge of the formed width of roads and there must be 4 metres height clearance above all roads, to the satisfaction of the CFA.

7. The subdivider must provide 3 copies of water reticulation drawings to the CFA for approval.

8. There must be a hydrant within 120 metres from the outer edge of the building envelope to the satisfaction of the CFA.

9. Fire hydrants must be clearly identified in accordance with the Fire Services Guideline - identification of street hydrants for fire fighting purposes, to the satisfaction of the CFA.

10. Prior to the commencement of works for the subdivision, a Site Management and Environment Plan must be submitted to and approved by the Responsible Authority. Such plan must have regard to the Council's sustainability framework and must provide details of the following:

A. Hours of operation of all machinery including transportation of any fill to the site and to be Monday - Friday 7 am to 6pm, Saturday 8am to 4pm, Sunday and Public Holidays - Nil.

B. A traffic plan indicating how vehicles will access the site.

D. Measures to controls noise, dust and water runoff, including sediment control during construction to prevent any sediment entering Chinamans Creek.

E. Arrangements to ensure that no debris is deposited on any road while vehicles are travelling to and from the site,

F. Appropriate arrangements to ensure roads in the locality are not prejudiced or damaged by the movement of construction vehicles to and from the site. This is to be part of the management plan.

G. Measures to minimise any adverse impact on surrounding property owners.

H. The maximum number of trucks entering the site per day.

I. The fill must start on the site progressively from the rear of the Cootamundra Crescent house fence line and filling towards the swamp.

11. Prior to the commencement of works for the subdivision, the Site Management and Environment Plan must be approved to the satisfaction of the Responsible Authority.

12. Upon the commencement of works for the Subdivision, advice from a suitably qualified engineer on a monthly basis must be submitted to the Responsible Authority certifying that all the work has been undertaken in accordance with the Site Management and Environment Plan.

13. Except with the further permission of the Responsible Authority, filling of any part of the land must not occur unless all fill has been certified by the qualified engineer to the satisfaction of the Responsible Authority as being free of weeds, detritus or other material that is foreign and incompatible with the land's environmental values.

14. Any entrance feature proposed for the subdivision must not be located in a reserve or road reserve and must not cause any loss of safe sight distances.

15. The subdivider must provide to Council a complete set of original transparencies, as well as a set in electronic format, that shows the completed layout and construction details of the subdivision within one month after practical completion of the works.

16. Within three months after the issue of the Statement of Compliance for the subdivision and to the satisfaction of the Responsible Authority, the subdivider must provide:

A. Permanent surveys marks that have been levelled to Australian height datum and registered with the Department of Survey and Mapping.

B. A copy of the plan that shows the above registered permanent survey marks.

17. Prior to the issue of a Statement of Compliance, road works, works, and drainage must be constructed in accordance with plans and specifications approved and to the satisfaction of the Responsible Authority and must include:

A. Fully sealed pavements to roll over type kerb and channel with agricultural drains installed behind all kerb and channel and in accordance with Res Code.

B. All properties and roads being provided with full underground drainage to cater for a 5 year flow and the road system or overland flow paths with drainage reserves being used to convey the balance of a 100 year flow.

C. Outfall drainage from the subdivision being directed to an approved location via a gross pollutant trap.

D. Street name signs, regulatory sign posts and brackets being provided and installed.

E. Nature strips and properties where disturbed being surfaced with 75mm of approved loamy type top soil finished true to grade level and sown with grass.

F. Street trees being provided, together with stakes (2 metres x 75 mm x 75mm), at 15 metres intervals or as directed by the Responsible Authority.

G. Appropriate service conduits with location marks in the kerb and channel being provided for each lot (or as required).

H. Street lighting in accordance with an approved plan with the type of poles and lights approved by Council prior to installation. If non-standard lighting is to be installed a maintenance fee of 10% of the cost of the poles and lights is to be paid to Council for future care and maintenance. A street light must also be provided at the intersection of Elizabeth Avenue and Corsair Ridge.

I. Standard fire plug indicators(with blue reflectors fitted both sides) and blue road reflectors being provided and installed.

J. A 1.4 metre wide concrete footpath on the 1 side of Corsair Ridge being provided, with the extreme outer edge 1.7 metres from the building line.

K. Site levels and finished ground levels of all proposed lots with detailed and graduated finished site levels being provided for the area with 10 metres of the common boundary of the existing lots in Cootamundra Avenue to the north of the site. All site levels must be based on the Australian Height Datum and be nominated by a licensed land surveyor.

L. Lots 1, 22, 23, 24, 25, 26, 27 and 28 within this subdivision must be filled with clean material to a minimum of 3.2 metres Australian Height Datum with positive drainage to Chinamans Creek and away from all existing residential lots on all adjoining land.

M. The location of any fill on the land and its depth being nominated on the plan.

18. Prior to the issue of a Statement of Compliance, the subdivider must pay to the Responsible Authority, appropriate fees for plan checking and surveillance (the surveillance fee will not be more than 2.5% of the cost of works taken over by Council for future care and maintenance).

19. Prior to the issue of a Statement of Compliance, Council may accept a Bank Guarantee/Bond for the completion of road works, works, drainage and landscaping as detailed in Condition 19 above and Condition 23 below.

20. Prior to the issue of a Statement of Compliance, a landscape plan for Elizabeth Avenue and Corsair Ridge must be submitted incorporating:

A. A schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified. At least 80% of the species must be indigenous to the area.

This plan must be submitted and approved to the satisfaction of the Responsible Authority and when approved such plan will become the endorsed landscape plan under this permit.

21. Prior to the issue of a Statement of Compliance, the subdivider must carry out the landscaping shown on the plan requested in Condition 22 above to the satisfaction of the Responsible Authority. The subdivider must then care for and maintain (including replacement) all of the landscaping, supporting stakes and ties, for a period of 12 months after completion, with any deed or diseased trees and shrubs being replaced as soon as possible, to the satisfaction of the Responsible Authority.

22. Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with South East Water Limited for the provision of reticulated water and reticulated sewerage to all lots in the subdivision. The subdivider must fulfil all requirements to the satisfaction of South East Water.

23. Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with United Energy in respect to the supply of underground electricity to each lot.

24. Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with United Energy. This agreement must provide for the rearrangement of the pints 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 other means as may be agreed by United Energy.

25. Prior to the issue of a Statement of Compliance and to the satisfaction of United Energy, the subdivider must:

A. Obtain for the use of United Energy any other easement required to service the lots.

B. Execute lease documents for a period of 30 years at a nominal rental with a right to extend the lease for a further 30 years for any electrical substations and for associated power lines and carriageway as required.

United Energy requires that such leases are to be noted on the Title by way of a caveat prior to registration of the Plan of Subdivision.

26. Prior to the issue of a Statement of Compliance, the subdivider must carry out works to each lot within the subdivision, to the satisfaction of Telstra.

27. Prior to the issue of a Statement of Compliance, the subdivider must pay to Telstra, the cost of any extension or alterations to the network or plant of Telstra, if necessitated by the proposed subdivision.

28. Prior to the issue of a Statement of Compliance, the subdivider shall at his expense erect an appropriate fence along the eastern boundary of the land to the satisfaction of the Responsible Authority.

29. Prior to the issue of a Statement of Compliance, the owner of the land must enter into an agreement with the Responsible Authority, pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must be registered by the owner pursuant to Section 181 of the Planning and Environment Act 1987 on the Title of the subject land prior t approval of this subdivision.

A. Dwellings on Lots 22, 23, 24, 25, 26, 27 and 28 shall be single storey.

B. No additional fill other than as approved by the Responsible Authority being placed on any lot.

C. No more than 40% of the site area of any lot to be covered by buildings (excluding driveways, terraces, etc).

Note: The costs in preparation and registration of such agreement are to be met by the subdivider and should be paid prior to the registration of the agreement.

Mr Ian Lonie, Solicitor with Clayton UTZ who called Mr Pat Condina, Waterway Consultant, Mr N J Craigie, Expert Drainage Engineer, Mr Brett A Lane, Ecologist and Mr D C Crowder, Town Planning Consultant as his witnesses.

Mr Norman McKinlay, M/s Elsie Walters, Mr Goodwin, Mr Gascoigne, M/s Irene Preston and M/s Jewel Bould

Mr Geoffrey Nicol, Town Planning Consultant assisted by Mr John Annear Subdivisions/Drainage Engineer with the Council

1. These applications are both brought under Section 77 of the Planning and Environment Act 1987 to review a decision of the Responsible Authority to refuse to grant a permit to subdivide land.

"The subject land is located at 85 Elizabeth Avenue, Rosebud West. It is irregular in shape and has a curvilinear frontage to Elizabeth Avenue. It has an overall area of 2.43 hectares. The site is generally flat and low lying and does not contain any significant vegetation. The site is bordered by Chinaman's Creek to the east, Elizabeth Avenue to the south and west and Cootamundra Avenue to the north.

Elizabeth Avenue is a constructed two-way local street that is connected to Point Nepean Road via Eastbourne Road to the North and crosses Chinaman's Creek through to Sanctuary Park Drive providing access to a recent residential subdivision.

The subject site is situated within a developed and developing residential zone. Several subdivisions have been developed in the area in recent years giving the neighbourhood a conventional suburban appearance.

The subject site originally formed part of the Tootgarook Wetlands, a natural drainage basin that stores water from the Drum Drum Alloc Creek catchment and the Chinamans Creek catchment. Chinaman's Creek is a constructed waterway that runs through the wetlands and forms the eastern boundary of the site. The Tootgarook swamp borders the south-west of the subject site. The swamp covers an area of 450 hectares and has been significantly altered from its natural state. Water levels in the swam pare controlled by inflows from Chinamans Creek and Drum Drum Alloc Creek and the swamp outlet pipe at Elizabeth Avenue."

3. The proposal as taken from Mr Leonie's submission is:

"The application proposes the subdivision of the subject land into 42 allotments. Lot sizes will range from 450 to 1,600 square metres including the retarding basin.

* Application No 99/1962 is for a two lot subdivision and associated earthworks and filling of land.

* Application No 02/1197 is for 42 lots (previously 41 lots) and associated earthworks. It is divided into two states;

Stage 1. Proposes the subdivision of 14 lots ranging from 450 - 474 square metres, with an average lot size of 459 square meters. All allotments will abut, and gain direct access from, Elizabeth Avenue.

Stage 2. Proposes the subdivision of the rear portion of the land into 28 lots ranging from 450 - 1,600 square meters, with an average lot size of 662 square meters (including roads). Stage 2 will be accessible via a new road between Lots 12 and 13 of Stage 1. The road will have a figure `7' configuration with a reserve width of 12 metres, culminating in a court-head configuration.

A treatment wetland and stormwater retardation system is proposed at the north east corner of the site (Lot 42 on Plan of Subdivision Version 2) to address surface water management issues on the subject site and surrounding area. The purpose of the wetland is to mitigate the impact of the proposed subdivision on water quality and to avoid any increase in peak flows to Chinamans Creek. The combined wetland/retarding storage system will have a water surface area of 350 square metre on a site of approximately 1,600 square metres. It can collect storm run off up to 300mm above the normal top water level, temporarily store the water, and release it slowly into the adjoining Creek in the days following a runoff event. An inlet sediment trap to the wetland will remove particles of coarse silt, while the remainder of the wetland will further reduce suspended solids and nutrient levels. The supplementary report by Pat Condina describes an additional treatment option to ensure that contemporary water quality treatment objectives are achieved. Aquatic plantings, habitat logs and rocks are also to be provided in and around the wetlands.

In addition to the wetlands, it is proposed that the subject site be filled above 100 year ARI flood level. This will allow surface water to run into the proposed wetlands, protecting downstream properties from the risk of flooding. The expert report of Neil Craigie and Pat Condina sets out in detail the surface water management proposal, design, maintenance and monitoring procedures."

4. The subject land and surrounding land is zoned Residential 1 under the Mornington Planning Scheme and affected by the Environmental Significance Overlay - Schedule 19 - Fluriatile Deposits (E.S.O. 19). A permit is required to subdivide the land in this zone.

5. P93542/2000 - The grounds of refusal and reasons for this request are:

1. The proposal does not meet the relevant sections of the State Planning Policy including:

A. Clause 14 - Principles of land use and development planning (settlement);

B. Clause 15.01 - Protection of Catchments, Waterways and Ground Water;

D. Clause 16.01 - Residential development for single dwellings; and

2. The proposal is contrary to the Municipal Strategic Statement, in particular Clauses 21.07 as it does not utilise the principles of best practice environmental management in the design of the subdivision nor does it acknowledge the environmental constraints and capacity of the land.

3. The proposal does not meet the objectives of the township environment policy (Clause 22.13) objectives as it fails to:

A. Ensure that the proposal provide appropriate stormwater treatment measures in accordance with relevant best practice environmental management guidelines, including draft best practice guidelines for stormwater management (Melbourne Water, 1999).

B. Ensure that construction activities do not adversely impact on the regional drainage function of waterways, drains, retarding basins and floodplains in this catchment.

C. ensure that the development, including drainage, and road are designed to protect the environment, land, waterways and ground water resources from polluting discharges and activities in accordance with State Environment Protection Policies and relevant best practice environmental management guidelines.

4. The proposal does not address the limited drainage capacity of the land or adequately propose a suitable method of discharging stormwater from the land that will not adversely impact on adjoining and nearby properties.

5. The application is deficient in the information provided to support its approval. It does not demonstrate to the satisfaction of the Responsible Authority that there will not be any material detriment to any person other than the Applicant.

6. The subject land is prone to flooding. The Applicant has not provided an assessment of the works required to construct the subdivision and reduce its risk to flooding or that of adjoining and nearby land.

2. The Responsible Authority has failed to take into account all of the matters that make it desirable to grant a permit.

3. The proposal satisfies the relevant provisions of the State Planning Policy Framework.

4. The proposal is consistent with the Municipal Strategic Statement.

5. The proposal satisfies Local Policy relevant to subdivision.

6. The proposal is consistent with the relevant Overlay provisions.

7. The land can be filled, subdivided and drained in an appropriate manner.

8. The proposal accords with past planning decisions and the zoning of the land.

9. The proposal meets the requirements of Council's drainage engineers and sufficient information was provided to enable the grant of a permit.

6. P619/2003 - The grounds of refusal and reasons for this request are:

1. The proposal does not meet the relevant sections of the State Planning Policy including:

A. Clause 14 - Principles of land use and development planning (settlement);

B. Clause 15.01 - Protection of Catchments, Waterways and Ground Water;

D. Clause 16.01 - Residential development for single dwellings; and

2. The proposal is contrary to the Municipal Strategic Statement, in particular Clauses 21.07 as it does not utilise the principles of best practice environmental management in the design of the subdivision nor does it acknowledge the environmental constraints and capacity of the land.

3. The proposal does not meet the objectives of the township environment policy (Clause 22.13) objectives as it fails to:

A. Ensure that the proposal provide appropriate stormwater treatment measures in accordance with relevant best practice environmental management guidelines, including draft best practice guidelines for stormwater management (Melbourne Water, 1999).

B. Ensure that construction activities do not adversely impact on the regional drainage function of waterways, drains, retarding basins and floodplains in this catchment.

C. ensure that the development, including drainage, and road are designed to protect the environment, land, waterways and ground water resources from polluting discharges and activities in accordance with State Environment Protection Policies and relevant best practice environmental management guidelines.

4. The proposal does not address the limited drainage capacity of the land or adequately propose a suitable method of discharging stormwater from the land that will not adversely impact on adjoining and nearby properties.

5. The application is deficient in the information provided to support its approval. It does not demonstrate to the satisfaction of the Responsible Authority that there will not be any material detriment to any person other than the Applicant.

6. The subject land is prone to flooding. The Applicant has not provided an assessment of the works required to construct the subdivision and reduce its risk to flooding or that of adjoining and nearby land.

2. The proposal is site responsive and will facilitate a subdivision that is environmentally responsible and will not exacerbate existing drainage conditions in the locality.

3. The proposal is entirely consistent with the residential zoning of the land.

4. The proposal satisfies the various relevant SPPF, LPPF, zone and overlay controls contained in the Mornington Peninsula Planning Scheme, including Clauses 14, 15.01, 15.02, 16.01, 19.01, 21.07 and 22.13.

5. the proposal has been specifically designed to address the drainage conditions presented by the site and the surrounding locality.

7. The proposal will not result in unreasonable detriment to neighbouring or nearby properties.

7. The Tribunal considered it necessary to inspect the area which was undertaken on Sunday afternoon 31 August 2003.

8. Mr Lonie sought the substitution of the Applicant's name from that of the surveyor to that of the land owner "Brimin Gem Pty Ltd". There was no objection and the substitution permitted in accordance with Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

9. The main proposal as outlined in 3 above is for a 42 lot subdivision, the other being a two lot subdivision virtually withdrawn. There was an average of lot sizes given, however the majority are slightly under 500m2 and a large lot in the north east corner showing as lot 42 of 1600m2 is the drainage treatment area before discharge into the adjacent Chinaman's Creek.

10. The Objectors expressed a number of concerns, however the most important were the proposed filling, its height that could cause overlooking to the rear yards, additional flooding and ecology concerns regarding flora and fauna.

11. Mr Nicol for the Responsible Authority considered the density inappropriate in this sensitive location where the surrounding average lots were 100 - 200m2 larger. He presented a complete picture of the area, the planning scheme and Responsible Authority policies.

12. Mr Lonie called expert witnesses to cover the waterway through and below the swamp, an engineer who covered the flows and flooding in the system, an ecologist and town planner. All were available for cross-examination and were helpful in assisting the Tribunal understand the hydrology of the swamp and outlet to Port Phillip Bay.

13. The Tribunal, understanding drainage and the proposal is satisfied that the subdivision has been well planned and extensive drainage work has been undertaken to ensure an improvement in what exists now for the residents of Cootamundra Avenue who are continually flooded.

14. In terms of the subdivision layout, the Tribunal noted previous subdivisions driving down Elizabeth Avenue and developments in the area. The proposed lot sizes is considered acceptable in this location and complies with current policies. The sizes also enable objectors to consider each proposal for a dwelling in the future.

15. The Tribunal looked at the road network following the Objector's concerns over traffic and car parking and there is no doubt the existing roads can cope with the increase from this subdivision.

16. The Tribunal gave a verbal decision on Wednesday 3 September 2003 and in summary form, the reasons for allowing the request and the subdivision are:

* The Chinaman's Creek has been diverted to the east, into a reserve away from the land.

* The Tootgarook swamp is a highly valued wetland, however it is above this land and subdivision will not affect the swamp at all.

* The waterway expert and Mr Craigie gave undisputed evidence that the filling of this land will improve the area of Cootamundra Avenue from the regular flooding.

* The Tribunal accepts the evidence of the experts regarding drainage/flooding and the negligible effects on flora and fauna with the filling.

* Adequate reserve land along the creek and the swamp will see the preservation of existing species of wildlife.

* The design level of fill shown with contours on the plan of subdivision tabled on the second day of the hearing, now signed by the Tribunal and dated 3 September 2003 shows minimal changes to ground level along the rear of properties fronting Cootamundra Avenue and certainly little if any overlooking concerns.

* The proposal will improve the area and there are no reasons on planning grounds to disallow this subdivision.

17. Conditions as discussed at the hearing are included in the decision above. The Tribunal sees a need to require only single storey dwelling development on Lots 22 - 28 in view of the background existence of the open swampland, but no reserve or plantation screening as requested by residents.

18. The Tribunal does not see the need to increase the width of the Chinaman's Creek reserve in view of existing widths further downstream and the fact that some land has already been given to create the 20m total width reserve. Nor is there a need to require planting and the Responsible Authority should perhaps permit open fencing on lots 14 - 21 along the reserve to provide improved security.

19. The Responsible Authority will be directed to issue a permit for the subdivision.