Canterbury Hills Pty Ltd v Hume CC [2015] VCAT 80

1. Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the Application is amended as follows -
   • For the Development Plan attached to the Application, substitute -

Canterbury Hills Development Plan (Version 4 dated July 2014)

• In section 9, for the facts relied on in support of the Application, substitute -

On 27 October 2014 the Responsible Authority refused to approve the Canterbury Hills Development Plan (Version 4 dated July 2014) under clause 43.04 of the Hume Planning Scheme

1. The decision of the Responsible Authority is set aside.
2. The Canterbury Hills Development Plan (Version 4 dated July 2014) has been prepared to the satisfaction of the Responsible Authority under clause 43.04-1 of the Hume Planning Scheme subject to the incorporation of the modifications set out in Appendix A.
3. By no later than 30 March 2015, the Applicant must modify the Canterbury Hills Development Plan (Version 4 dated July 2014) in accordance with order 3 and submit three copies to the Responsible Authority. When the Responsible Authority is satisfied the document incorporates the modifications in accordance with order 3, it must endorse the copies as having been prepared to its satisfaction under clause 43.04 of the Hume Planning Scheme and must give one endorsed copy to the Applicant.

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, permit application no. P8779 is amended as follows -
   • In the description of the proposal, add 'and removal of native vegetation'.
2. The decision of the Responsible Authority is set aside.
3. In permit application no. P8779 a permit is granted and directed to be issued for the land at 370 & 370A Riddell Road, Sunbury in accordance with the endorsed plans and on the conditions set out in Appendix B. The permit allows:
   • Subdivision into stages in the General Residential Zone and the Land Subject to Inundation Overlay, construction or carrying out of works in the Land Subject to Inundation Overlay, and removal of native vegetation
4. In accordance with section 118 of the Victorian Civil & Administrative Tribunal Act 1998, order 8 comes into effect on the date the development plan is endorsed under order 4.

1. The decision of the Responsible Authority is set aside.
2. In permit application no. P9976 a permit is granted and directed to be issued for the land at 370 & 370A Riddell Road, Sunbury in accordance with the endorsed plans and on the conditions set out in Appendix C. The permit allows:
   • Subdivision in the General Residential Zone
3. In accordance with section 118 of the Victorian Civil & Administrative Tribunal Act 1998, order 11 comes into effect on the date the development plan is endorsed under order 4.

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, permit application no. P10105, is amended as follows -
   • In the description of the proposal, add 'and removal of native vegetation'
2. The decision of the Responsible Authority is set aside.
3. In permit application no. P10105 a permit is granted and directed to be issued for the land at 370 & 370A Riddell Road, Sunbury in accordance with the endorsed plans and on the conditions set out in Appendix D. The permit allows:
   • Subdivision in the General Residential Zone
4. In accordance with section 118 of the Victorian Civil & Administrative Tribunal Act 1998, order 15 comes into effect on the date the development plan is endorsed under order 4.

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, permit application no. P14424, is amended as follows -
   • In the description of the proposal, add 'and removal of native vegetation'
2. The decision of the Responsible Authority is set aside.
3. In permit application no. 14424 a permit is granted and directed to be issued for the land at 370 & 370A Riddell Road, Sunbury in accordance with the endorsed plans and on the conditions set out in Appendix E. The permit allows:
   • Subdivision into stages in the General Residential Zone
4. In accordance with section 118 of the Victorian Civil & Administrative Tribunal Act 1998, order 19 comes into effect on the date the development plan is endorsed under order 4.

1. Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the Application is amended as follows -
   • For the landscape plan submitted under condition no. 10(b) of permit no. P8950.01 in relation to stage 24 of the estate, substitute the plans entitled Canterbury Hills Estate, Sunbury, Landscape Plan prepared by Beveridge Williams drawing nos. L01 Rev C, L02 Rev C, L03 Rev B, L04 Rev C, L05 Rev B, L06 Rev A, L07 Rev B, L08 Rev B, L09 Rev B, L10 Rev B, L11 Rev B, L12 Rev A & L13 Rev A, all dated 26 November 2014
2. The decision of the Responsible Authority is set aside.
3. The Canterbury Hills Estate, Sunbury, Landscape Plan has been prepared to the satisfaction of the Responsible Authority under condition no. 10(b) of permit no. P8950.01 subject the incorporation of the modifications set out in Appendix F.
4. By no later than 30 March 2015, the Applicant must modify the Canterbury Hills Estate, Sunbury, Landscape Plan in accordance with order 23 and submit three copies to the Responsible Authority. When the Responsible Authority is satisfied the document incorporates the modifications in accordance with order 23, it must endorse the copies as having been prepared to its satisfaction under condition no. 10(b) of permit no. P8950.01 and must give one endorsed copy to the Applicant.

Mr Paul Chiappi of Counsel, instructed by Minter Ellison Lawyers. He called the following witnesses:

• Mr Marco Negri, town planner, Contour Consultants Pty Ltd
• Mr Andrew Prout, engineer, Engeny Water Management Pty Ltd
• Mr Alan Brennan, ecologist, Brett Lane & Associates Pty Ltd

Mr Barnaby McIlrath, Maddocks Lawyers. He called the following witness:

• Mr Aaron Organ, ecologist, Ecology & Heritage Partners Pty Ltd

Application no. P325/2013: Approval of a development plan

Application P326/2013: Issue of a statement of compliance under the Subdivision Act 1988 for stage 24

Application no. P327/2013: Subdivision of part of the land (known as stages 2C & 3) into a total of 33 lots (permit application no. 8779)

Application no. P328/2013: Subdivision of part of the land (known as stage 5) into 24 lots (permit application no. P9976)

Application no. P329/2013: Subdivision of part of the land (known as stage 6) into 40 lots (permit application no. P10105)

Application no. P424/2013: Subdivision of part of the land (known as stages 7, 10 & 11) into a total of 94 lots (permit application no. P14424)

Application no. P1815/2014: Approval of a landscape plan under condition no. 10(b) of permit no. P8950.01 issued to subdivide stage 24

Application no. P325/2013: Application under section 149(1) of the Planning and Environment Act 1987 to review the Council's decision to refuse to approve a Development Plan

Application no. P326/2013: Application under section 40 of the Subdivision Act 1988 to review the Council's failure to issue a statement of compliance for stage 24 of the subdivision of the estate

Application nos. P327/2013, P328/2013, P329/2013 & P424/2013: Applications under section 79 of the Planning and Environment Act 1987 to review the Council's failure to decide permit application nos. P8779, P9976, P10105 & P14424, respectively, within the prescribed period

Application P1815/2014: Application under section 149(1) of the Planning and Environment Act 1987 to review the Council's decision to refuse to approve a landscape plan under condition no.10(b) of permit no. P8950.01 in relation to stage 24 of the subdivision containing 14 lots

(Application nos. P327/2013, P328/2013, P329/2013 & P424/2013)

Although the subject land (ie estate) abuts a Road Zone Category 1 (Riddell Road) and access is to be created or altered to that zone under the Development Plan, none of the stages in the permit applications abuts Riddell Road or creates or alters access to that road. A permit is not required under clause 52.29.

Clauses 10, 11, 12, 13, 14, 15, 16, 18, 21.01, 21.02, 21.04, 21.05, 21.06, 21.08, 32.08, 43.04, 44.04, 52.01, 52.17, 52.29, 52.36, 56, 65 & 66

The land is the Canterbury Hills housing estate. It is an area of about 120 ha and is located to the north-west of the Sunbury town centre on the Riddell Road. Thirteen stages, containing 295 lots in the southeast part of the estate, are completed. The balance of about 28 stages is undeveloped and they contain about 873 proposed standard and medium density lots. The undeveloped part is steep in parts, contains native vegetation, is drained by two main creeks (the Kismet Creek and the Billy Goat Creek) and contains several registered Aboriginal places. The land is being developed by Canterbury Hills Pty Ltd. The land subject of this proceeding extends to the northern limit of the urban growth boundary in the scheme but Canterbury Hills' land extends further to the north.

1. This proceeding concerns the Canterbury Hills housing estate at Sunbury (the estate) and, in particular, a number of applications relating to future development of the estate.[2]
2. For the past thirteen years, a Development Plan approved by Hume City Council (the Council) on 29 November 2001 (the 2001 DP) under the Hume Planning Scheme (the scheme) has guided the overall development of the estate.
3. The estate's developer, Canterbury Hills Pty Ltd (Canterbury Hills), wants to proceed with some further stages of the estate. It asked the Council to approve the following three matters.
4. First, it asked the Council to replace the 2001 DP with a new Development Plan known as the Canterbury Hills Development Plan (Version 4 dated July 2014 (the 2014 DP). The Council refused to approve the 2014 DP. Canterbury Hills has applied to review the Council's decision.
5. Second, it made four applications to the Council for permits under the scheme to create a total of 191 lots in stages 2C, 3, 5, 6, 7, 10 & 11 (the seven stages) of the estate (the permit applications). The Council refused to grant the permits and Canterbury Hills has applied to review the Council's decisions.
6. Third, it asked the Council to approve a landscape plan under a permit issued to create 14 lots in stage 24 (the landscape plan). Stage 24 has been constructed and the approval of the plan is needed before a statement of compliance may be issued under the Subdivision Act 1988 for the stage. The Council refused to approve the landscape plan. Canterbury Hills has applied to review the Council's decision.
7. Canterbury Hills also asked the Council to issue a statement of compliance under the Subdivision Act 1988 for this stage. The Council refused to issue a statement of compliance, principally on grounds relating to the expiry of the permit to subdivide the stage. Canterbury Hills also applied to review the Council's refusal to issue the statement of compliance and the Council's refusal to extend the permit. By consent, the Tribunal ordered the extension of the permit.
8. We have decided to approve a modified 2014 DP, grant permits for the seven stages subject to conditions, approve a modified landscape plan for stage 24, and strike out the application regarding the statement of compliance. Our reasons follow.

1. Canterbury Hills asked the Council to amend the 2001 DP by approving the 2014 DP. The scheme allows an amended DP to be prepared to the Council's satisfaction.[3] The Council refused the request, in effect resolving the 2014 DP was not to its satisfaction.
2. The 2014 DP comprises a Report prepared by Beveridge Williams (version 4 dated July 2014) (17 pages), a Framework Plan prepared by Beveridge Williams (version 6 dated 28 July 2014) (1 sheet) and six other documents.[4]
3. The Framework Plan shows some existing physical features (eg watercourses, contours, trees, heritage sites and flood levels), existing and proposed roads and lots (except for lots in stage 8), existing and proposed stream reserves and public open space, and a neighbourhood centre. The Framework Plan includes a table showing 295 lots in the completed stages and 873 lots in future stages. The 873 future lots include 245 medium density lots.
4. The 2001 DP divided the estate into three broad areas, being southeast, southwest and north of Kismet Creek. The 2001 DP did not include any lot or road layout in the area southwest of Kismet Creek pending resolution of possible ridge top parks and protection of the Aboriginal heritage place known as 'Sunbury Ring 4'.
5. The 2014 DP includes a road and lot layout in the area southwest of Kismet Creek. It updates the area north of Kismet Creek while maintaining the essential public open space and road layout arrangement. It also includes the completed stages southeast of the Kismet Creek. Mr Negri described the 2014 DP as similar to the 2001 DP but this description cannot be applied to the area southwest of Kismet Creek.

1. When the Council refused to approve the 2014 DP, it also resolved -

That irrespective of the decision of the [Tribunal in this proceeding] ... , the [2001 DP] be revoked.

1. The Council subsequently notified Canterbury Hills that it would not stamp the 2001 DP as being revoked until this proceeding is finalised.
2. The Council has the power to revoke a Development Plan.[5] The resolution is vague. If the Council intended the revocation be stayed until the happening of a particular event or until a particular date, the event or date is not included in the resolution. The notice given to Canterbury Hills confirms that the Council intended that only the administrative step of stamping the 2001 DP as revoked would be delayed and that revocation was effective from the date of the resolution.
3. The legal consequence is that there is no current Development Plan. Canterbury Hills' application to the Tribunal is to review the Council's failure to amend the 2001 DP. As the revocation post-dated the application, it is in the interests of justice that we amend the application so that it seeks review of the Council's decision to refuse to approve the 2014 DP as if it were a new Development Plan.
4. We are aware that even if there is no Development Plan, the Council may approve a permit application to subdivide parts of the estate 'provided not more than 300 residential lots are created in any twelve months period'.[6] Even if we were minded to affirm the Council's decision to refuse to approve the 2014 DP, it would have remained open to us to grant the permits because the number of lots to be created by those permit applications is less than 300.
5. We now turn to the issues in dispute in relation to the 2014 DP.

1. The 2014 DP ' must show, where appropriate ... sites of ... heritage significance'.[7] We are satisfied this reasonably includes sites of Aboriginal cultural heritage significance.
2. Canterbury Hills' cultural heritage consultants' reported in 2004 on a survey of cultural heritage.[8] The report identified -
   • Four Aboriginal archaeological sites recorded under the Archaeological and Aboriginal Relics Preservation Act 1972 (now repealed) (the Relics Act), including an earthen ring known as 'Sunbury Ring 4'.
   • Seventeen new Aboriginal archaeological sites (being isolated artefact sites or artefact scatter sites) on the estate.

1. Canterbury Hills is not required to prepare a cultural heritage management plan (CHMP) before the 2014 DP may be approved because the Aboriginal Heritage Act 2006 (AH Act) does not require a CHMP before a Development Plan is approved or amended.[9]
2. The Council accepts that Canterbury Hills is not required to prepare a CHMP before it may grant permits to subdivide the seven stages. This is because the 2004 Archaeological survey[10] of the estate (the 2004 survey) was an archaeological survey for the activity of creating the estate and was properly recorded under the Relics Act.[11]
3. Canterbury Hills is not required to prepare a CHMP before the landscape plan is approved because the AH Act does not require a CHMP before a plan is to the satisfaction of the Council under a condition of a permit. The decision as to satisfaction (a 'secondary consent') is not a statutory authorisation because it is neither the grant nor the amendment of a permit. Even if it were, the transitional provision to which we refer would apply.
4. On 17 October 2013, Aboriginal Affairs Victoria (AAV) informed Canterbury Hills that it should prepare a voluntary CHMP before proceeding with further works given the 'extremely high significance' of Sunbury Ring 4 and the likelihood of other sites being found on the estate.
5. Canterbury Hills accepted this recommendation and has agreed to prepare a voluntary CHMP.[12]
6. On 30 October 2014, the relevant registered Aboriginal party, the Wurundjeri Tribe Land & Compensation Cultural Heritage Council Inc (the Wurundjeri) informed Canterbury Hills that
   • Sunbury Ring 4 is 'one of the most important Indigenous cultural landscapes in [Victoria]'.
   • The complex of five ceremonial earthen rings (of which Sunbury Ring 4 is part) 'remains an important spiritual place for contemporary Wurundjeri people'.[13]
7. The Council submits the 2014 DP should not be approved until the voluntary CHMP is approved because -
   • State policy seeks to protect and conserve places of Aboriginal cultural heritage significance.[14]
   • It would provide certainty for the protection of cultural heritage on the estate, particularly as the geographic extent of all sites is not shown on the 2014 DP and most of the sites are within or close to lots.
   • The 2004 survey recommendation for a 50 m buffer around Sunbury Ring 4 is not clearly provided on the 2014 DP.
8. Canterbury Hills submits consideration of the 2014 DP should be not be delayed until the voluntary CHMP is approved because -
   • The estate has been surveyed for cultural heritage in 1984, 1999, 2001 and 2004 and it is unlikely that additional cultural heritage will be found.
   • The estate has been planned in consultation with the Wurundjeri and there are arrangements in place with the Wurundjeri to monitor construction of each stage for the discovery of any additional cultural heritage.
   • The Framework Plan incorporates the Sunbury Ring 4 into the estate in a manner that meets the Wurundjeri's requirements.[15]
9. We would not postpone consideration of the 2014 DP, the permit applications and the landscape plan until approval of the voluntary CHMP for the following reasons..
10. First, AAV has not requested that the voluntary CHMP be approved before consideration of these matters, but only before further works on the estate start.
11. Second, the scheme does not require the detailed geographic extent of sites to be shown on the 2014 DP. The extent of these sites can be ascertained from the survey records filed under the Relics Act (and now available under the AH Act) to help design individual stages.
12. Third, the 2014 DP shows that none of the existing sites are within the seven stages.[16]
13. Fourth, in relation to sites that may not yet be discovered, the AH Act contains a range of measures to address Aboriginal cultural heritage even if a voluntary CHMP has not been approved. This includes heritage that is discovered after subdivision works have started. One of these measures is that, in general terms, it is an offence to harm cultural heritage.
14. Fifth, Sunbury Ring 4 is the most significant known site on the estate and is neither in the seven stages nor in a stage that would be likely to closely follow the seven stages. We estimate there is sufficient time before a permit is granted for any stage affecting Sunbury Ring 4 to prepare and approve the voluntary CHMP.
15. Nonetheless, we are hesitant to rely on a 10-year old consent on behalf of the Wurundjeri to the Framework Plan's design for incorporating Sunbury Ring 4 into the estate. It is not a consent to disturb that has any statutory force. Without hearing from the Wurundjeri, we are unsure if it meets current requirements. It predates the new system for protection of cultural heritage in the AH Act.
16. We will therefore modify the 2014 DP to provide, in effect, that the voluntary CHMP should be finalised before a permit is granted for a stage in the estate that affects Sunbury Ring 4.

1. The estate is about 120 ha and is bordered by Riddell Road to the south, residential development to the east and agricultural land to the north and west. The estate has moderately high relief, with an abrupt spur descending from the north to the low-lying area along Kismet Creek and is located within both the Victorian Volcanic Plain and Central Victorian Uplands bioregions.
2. Modelled mapping of Ecological Vegetation Classes (EVCs) prior to European settlement combined with evidence on-site, including floristic composition and soil characteristics suggest the following EVCs occurred:
   • Box Ironbark Forest (EVC 61) of the Central Victoria Uplands bioregion on infertile step slopes and ridges in the north of the estate.
   • Valley Grassy Forest (EVC 47) of the Central Victorian Uplands bioregion on colluvial soils within valleys in the north of the estate.
   • Grassy Woodland (EVC 175_61) of the Central Victoria Uplands bioregion on moderately sloping relatively fertile land in the north of the estate.
   • Valley Grassy Forest (EVC 47) of the Victorian Volcanic Plains bioregion on basalt soils within the broad valley in the south of the estate.
3. Ecological studies of the estate identified a total of 24 habitat zones supporting 34.60 ha (14.04 Habitat Hectares) of remnant patches of native vegetation comprising the above listed EVC vegetation communities. The studies also identified a total of 23 large old trees within the habitat zones and an additional total of 27 scattered trees (ie trees that are located outside of the identified habitat zones).
4. State listed flora species recorded on the site were Melbourne Yellow-gum (Eucalyptus leucoxylon subsp. connate) located along Billy Goat Creek in the south of the estate, Arching Flax-lily (Dianella sp. aff. longifolia) within the northern spur and Fragrant Saltbush (Rhagodia parabolica) located near the escarpment north of Kismet Creek on the extreme eastern boundary of the estate. Another listed flora species, the Matted Flax-lily (Dianella amoena) considered to potentially occur in the south-eastern corner of the estate was the subject of targeted surveys but was not recorded.
5. Regarding threatened fauna species, the estate is considered to contain treed vegetation of moderate quality, treeless grassy vegetation of low quality and aquatic habitat that potentially may support:
   • Nine listed bird species such as the Swift Parrot (Lathamus discolor).
   • Two mammal species.
   • One reptile species; the Striped Legless Lizard (Delma impar).
   • Two frog species including the Growling Grass Frog (Litoria raniformis).
   • One invertebrate listed species; the Golden Sun Moth (Synemon plana).
6. Mr Brennan's evidence was that targeted surveys for Striped Legless Lizards would be unlikely to be required, based on advice from the then Department of Environment and Primary Industries (DEPI), primarily due to the apparent difficulty in finding specimens. Hence, they would be presumed present and it would be likely that implementation of the Striped Legless Lizard Salvage Protocol would be required before any development started.
7. Regarding the Golden Sun Moth, targeted surveys were undertaken of areas of suitable habitat resulting in one individual Golden Sun Moth being recorded. Mr Brennan's opinion was this was insufficient to comprise a population based on criteria that five or more specimens needed to be recorded to reach such a conclusion.[17] Mr Organ disagreed with this finding because this population criteria is not recognised under relevant Commonwealth impact guidelines and if one individual was found others may be present because of the small flying range of the species.
8. Mr Brennan's evidence was that suitable breeding habitat for the Growling Grass Frog occurs in two constructed on-stream wetlands along both Kismet Creek and Billy Goat Creek. In his opinion, it is likely that Growling Grass Frog would use Kismet Creek and its tributaries as dispersal habitat from more permanent stronghold habitat downstream in Jacksons Creek.
9. With the above ecological information in mind, the 2014 DP broadly sets out the subdivision and development for urban residential purposes of stages 2C, 3 to 8, 10 to 16A and 25 to 36 of the estate. The 2014 DP includes a description of the ecological values of the site and, as we have previously stated, also includes:
   • A Framework Plan showing existing trees and notations for future investigation at the planning permit stage for protection of native vegetation (the northern Box Ironbark community).
   • A Consolidated Ecological Report which is relied upon to respond to native vegetation and biodiversity management.
   • A Native Vegetation Mapping and Draft Landscape Concept Plan.
10. The 2014 DP 'must show, where appropriate ... sites of vegetation ... significance'.[18] Mr Brennan's opinion was that, in relation to native vegetation and biodiversity, the 2014 DP appropriately satisfied this requirement. He also considered the Framework Plan appropriately showed:
    • Sites of vegetation significance.
    • Reserves along Kismet Creek, Billy Goat Creek and an un-named tributary in the north of the estate.
    • More native vegetation to be retained within stages 13, 14 & 15 and less within other stages.
11. Areas including native vegetation with the highest priority for retention (ie habitat zones A, B and E) are in the north of the estate within stages 13, 14 & 15. The Framework Plan includes the following notation for stage 15 (although we discern the intention was to include the notation for stages 13, 14 & 15):

Layout subject to detailed investigation at the planning permit stage to ensure the protection of indigenous vegetation and management of areas of erosive soils.

1. Areas that have a lower priority for retention are shown with an indicative lot layout for the relevant stage.
2. Stage 8 is located between those stages that are the subject of the permit applications and Kismet Creek. In recognition of a steep escarpment above the creek, the Framework Plan includes the following notation for stage 8:

Lot layout to be determined following review of landform and topography.

1. Mr Brennan's evidence was the 2014 DP would benefit from the following changes:
   • A greater level of detail in the summary of the extent and nature of native vegetation and habitat present.
   • A clear statement identifying that the native vegetation with the highest priority for retention - the Box Ironbark woodland in habitat zones A, B & E - is located in the north of the site within stages 13, 14 & 15.
   • Retention of additional scattered trees with reserves and more native vegetation on erosion prone slopes.
   • Information detailing that habitat for the threatened Striped Legless Lizard is present within habitat zone U in stage 11 and habitat zones K & L in stage 8.
   • A definition of what is meant by the term 'natural areas'.
   • A statement indicating that native vegetation proposed to be retained within public open space, particularly in habitat zones A, B & E, should not be managed as 'parkland', as this will degrade the biodiversity value of the vegetation, particularly the ground layer. Rather, it should be noted that this vegetation requires fencing and management for biodiversity conservation.
   • A clear statement that native vegetation located within drainage reserves will be retained.
   • Revegetation of Kismet Creek and tributaries to enhance value for dispersal habitat for the Growling Grass Frog as well as a diversity of habitat that would benefit other species such as the Brown Toadlet (Pseudophryne bibronii).
   • A salvage and translocation protocol should be developed and implemented for Striped Legless Lizard.

1. Mr Organ did not oppose most of these changes. However, the Council seeks to ensure greater protection of native vegetation under the 2014 DP rather than under subsequent permits granted for individual stages. In this way, the Council submitted the purpose of DPO7 would be better met because it would better show the form and conditions of future use and development of the estate and the proposed development and use of each part of the estate.[19]
2. Mr Organ supported the following outcomes, which were similar to those supported by Mr Brennan:
   • Further surveys for Matted Flax-lily across the estate.
   • Additional survey work to determine the importance of native vegetation (trees) within the northern Box Ironbark woodland as habitat for Swift Parrots.
   • A clearer indication that Box Ironbark woodland in stages 12 to 15 (ie habitat zones A, B, C & E) are be avoided.
   • No development to occur within stages 12 to 15, 35 & 36.
   • Protection of the low-lying area which supports understorey native vegetation in stage MDH3 that is designated for medium density housing north of Kismet Creek.
   • Use of indigenous native vegetation species as part of future revegetation of open space areas.
   • Targeted surveys for Striped Legless Lizard conducted within patches of native vegetation across the site and particularly within habitat zones H, G, F, N, O, P, Q, U & R.
   • Targeted surveys for Growling Grass Frog along all watercourses.
   • Further surveys for Golden Sun Moth to determine species distribution, abundance and importance.
   • Retention of all remnant trees located within and outside of habitat zones.
3. Mr Organ also supports further survey work to better delimit the extent of habitat value of remnant native vegetation areas for threatened species.
4. In response to Mr Organ's and the Council's support for an 'integrated strategic approach' towards the avoidance and minimisation of removal of remnant native vegetation, Canterbury Hills' view is that it is inappropriate to provide in the 2014 DP areas of native vegetation or habitat that must not be cleared. Mr Chiappi submitted that the question of clearance is one dealt with at the planning permit application level where the range of policies and requirements can be considered in an integrated manner.
5. We prefer the Council's submissions because it is consistent with orderly planning to ensure the 2014 DP provides for 'the form and conditions of future use and development' of the estate for residential purposes with regard to native vegetation and biodiversity management and protection.
6. We have come to this conclusion for the following four reasons.
7. First, the 2014 DP is a new Development Plan. This allows us to consider the current framework of planning policies, provisions and knowledge now available of the estate, its context and its environmental condition and values including that of native vegetation.[20] The 2014 DP appears to carry on a form of development similar to that under the 2001 DP. This now no longer needs to be the major driver of how development of the estate should proceed.
8. Second, the supporting documents in the 2014 DP are inconsistent with the ecological evidence in this proceeding or out of date. For example, figure 2 in the Consolidated Ecological Report includes useful information on native vegetation including habitat zones and individual trees and goes some way to satisfying the requirements of DPO7. However, figure 3 identifies almost all the areas of native vegetation and many of the identified trees within the estate proposed to be removed. This appears to contradict the evidence and pre-determines possible outcomes including those of future planning permit applications.
9. Third, the Native Vegetation Mapping & Draft Landscape Concept Plan shows potential native vegetation to be removed and again includes almost all of the areas of native vegetation identified in the estate.
10. Fourth, the condition scores from the habitat hectare assessments of the Habitat Zones in Mr Brennan's witness statement indicates that the top ranking habitat zones are those located in association with the northern Box Ironbark woodland (habitat zones A, B, C & E) and grassland areas associated with stage 11 (habitat zone T) and stage 35 (habitat zones F & H).[21]
11. Fifth, translocating specimens or individuals of a listed threatened species such as the Striped Legless Lizard appears an action that would be implemented as a last resort and not as part of the early mitigation measure strategies associated with planning for where, how and what form new development may take and be planned.
12. The areas associated with the Box Ironbark woodland (habitat zones A, B, C & E associated with stages 13, 14 & 15) and grassland areas (habitat zones F, H, T & U associated with stages 11, 35 & 36) should be reviewed. This is needed having regard to the objective of protecting the ecological values of these areas and to their habitat value for species such as Striped Legless Lizard and Golden Sun Moth.
13. All indigenous native trees should be retained given their small number in relation to the size of the estate. This would also contribute towards maintaining potential habitat value for the Swift Parrot.
14. We do not agree that the 2014 DP only needs to show sites of significant native vegetation in the estate. It should show native vegetation the removal of which is to be avoided or that is to be set aside for protection. We consider there is merit in reviewing the future use and development of those parts of the estate with respect to native vegetation protection. The 2014 DP takes steps in this direction by use of the notation for the northern Box Ironbark woodland on the Framework Plan and this has been reinforced by the evidence of Mr Brennan and Mr Organ. The extent of the ecological evidence and the numerous past reports and investigations on ecological matters at the estate satisfies us that work has been done to better inform how areas of native vegetation can be protected in association with where and how future residential development might proceed.
15. The DPO represents a form of strategic planning whereby future land use and development that is encouraged under the zone is further detailed at a level above that expected in a planning permit application. One of the purposes of the DPO is to implement relevant State planning policy, which includes protecting sites of biodiversity value in a strategic sense. This is to be implemented partly by the DPO7 requirement to show sites of vegetation that are significant in any development plan.
16. It might be said that, when assessed on an individual planning permit application basis, areas of remnant native vegetation located on particular parts of the site do not contribute significantly, in their own right, to the State's biodiversity. However, this form of assessment fails to have regard to the broader strategic level of consideration whereby the sum of the parts of the native vegetation coverage may be of greater importance.
17. Assessments under individual planning permit applications also follow the form of land use and development under an approved development plan. The 2014 DP needs to be based on the appropriate strategic assessment of design planning that integrates competing objectives. The 2014 DP should not be refused. However, the 2014 DP needs to be amended to show areas of native vegetation that are considered valuable and a priority for protection. The amendments should remove indicative roads and lots from those areas that include the following:
    • The northern Box Ironbark woodland (habitat zones A, B, C & E associated with stages 13, 14 & 15).
    • Native grassland areas (habitat zones F, H, T & U associated with stages 11[22], 35 & 36).
    • All individual native indigenous trees including both those within habitat zones and those outside of habitat zones that are designated as scattered trees.

Waterway planning, drainage and stormwater management

1. The 2014 DP ' must show, where appropriate ... proposed retarding basins, lakes, watercourses and drainage lines '.[23]
2. The 2014 DP shows existing and proposed lakes in the part existing and part proposed Kismet Creek stream reserve. It also shows Billy Goat Creek in a part existing and part proposed stream reserve and existing watercourses and drainage lines. It also shows a proposed stream reserve in stages 14 & 15 which follows a deeply incised drainage line. It also shows the 100 year Annual Recurrence Interval (ARI) flood extents.
3. The 2014 DP includes a Surface Water Planning Strategy dated 11 August 2011 (Surface Water Strategy) and a MUSIC Modelling Report dated January 2013 (MUSIC report) both prepared by Engeny Pty Ltd. The Surface Water Strategy focuses on that part of Kismet Creek upstream and west of the existing lake and identifies areas of the creek where erosion and stream flow control works are proposed through the use of ameliorative measures such as rock rip rap, bank reconstruction and revegetation. The MUSIC report focuses on stormwater management and the application of best practice stormwater treatment (primarily through the use of constructed wetlands).
4. The primary concerns relate to impacts from proposed works on Growling Grass Frog habitat and the level of details on plans required for approval by both the Council and Melbourne Water.
5. The Council's contention is that detailed plans, rather than concept plans are required for approval which should be supported by more comprehensive studies and investigations of the waterways.
6. Melbourne Water's position is similar to that of the Council. Melbourne Water also has concerns regarding ensuring adequate consideration is given to flood risks, the turnover rate for water within the existing lake in order to prevent the occurrence of algal blooms, the ability to achieve best practice stormwater treatment and the capacity of the existing lake embankment to withstand a new road crossing.
7. Canterbury Hills contend that Growling Grass Frog habitat has been identified in the ecological work of Brett Lane & Associates and proposed works in Kismet Creek will not impact these areas. They also consider it unnecessary to provide detailed plans and reports at the Development Plan stage because this level of detail is more appropriately provided at the planning permit stages for subdivision.
8. We prefer the submissions of Canterbury Hills.
9. Figure 2 of the Biodiversity Assessment of stages 2C, 3, 5, 6, 7, 10, 11 & Review of Development Plan report prepared by Brett Lane & Associates dated November 2014 shows potential Growling Grass Frog breeding habitat is associated with a small wetland located east of the stage 2C road crossing. This wetland is not proposed to be impacted by development. No other potential breeding habitat is shown that would be affected, particularly by the works proposed in the section of Kismet Creek upstream (west) of the existing lake.
10. Although the species may use other parts of Kismet Creek for dispersal and foraging, the area of potential breeding habitat is unaffected by proposed works within the creek. The proposed works elsewhere within the waterway affect small sections of Kismet Creek and are considered temporary, given their purpose of targeting flow and stream channel erosion impacts. Unlike activity that may have ongoing effects (such as sediment and nutrient inflows from the surrounding catchments) where continuous pressure on the environment may lead to steady degradation, the works that are proposed in this case are considered to have more of a pulse effect, which will not be catastrophic to the habitat usage value of the waterway for the species. In fact, it may improve the long term sustainable habitat value of the waterway for Growling Grass Frogs.
11. There is merit in amending the 2014 DP to include reference to ensuring that works in stream reserves should have regard to the Growling Grass Frog and its habitat requirements including avoiding works during breeding and migration periods.
12. We discern little benefit in requiring detailed plans to be included in the 2014 DP that show construction works and their design. Certainly, such detail should be provided at the planning permit stage and/or works on waterways approval stage (as required under the Water Act 1989). However, conceptual plans indicating what is proposed and where it is proposed, is sufficient for supporting the 2014 DP within which further detailed works and designs should 'generally be in accordance with' the 2014 DP.
13. Melbourne Water is not a party to this proceeding. In its recent correspondence to the Council's lawyers, it attached a plan showing waterway corridors and flood modelling of the 1 in 100 year flood extents along the waterways within the site that it had previously accepted.[24] Mr Prout reinforced this view, advising that 100 year ARI flood protection is mostly provided in the Framework Plan by provision of the areas along the proposed and existing stream and lake reserves.
14. We have some concern with an area of about 1.1 ha identified as 'stage MDH3' between the proposed stream reserve in stage 14 and the existing Kismet Creek reserve. It contains a drainage line between these reserves. Stage MDH3 is for 30 medium density housing units. The 100 year ARI flood extent is contained within the Kismet Creek reserve and does not affect stage MDH3.
15. The flood modelling shows part of stage MDH3 being subject to overland flows in 100 year ARI events. Mr Prout acknowledged that the layout of 'streets and development sites' within the stage must not interfere with these paths without inundating dwellings and that layout changes for the stage or conditions may be required. We will require modification of the 2014 DP to reflect the potential for this change.
16. In Mr Prout's opinion, Canterbury Hills could provide a lake water turnover assessment. It would be appropriate, as part of stormwater management, to seek to ensure that the potential for algal blooms to be triggered from sediment and nutrient laden stormwater flows from developed residential areas are prevented. Achieving best practice stormwater treatment is desirable. Despite the MUSIC report identifying that best practice stormwater treatment targets may not be achieved (primarily due to physical constraints of not finding enough suitable land area for treatment wetlands within the stream reserve areas) other stormwater treatment measures should be considered to achieve these targets. The omission of areas from the 2014 DP for native vegetation management may offer opportunities to achieve best practice targets in this regard.
17. Appropriate geotechnical testing needs to be undertaken to satisfy Melbourne Water's concerns about the proposed road crossing of the existing lake embankment in stage 2C. This is despite the assurances from Canterbury Hills that the road will simply be laid over the top of this embankment structure. If past records cannot clarify the integrity of the embankment to accommodate a new road and the traffic it is intended to carry, then new investigative work is required. This can be required by permit conditions.

1. The 2014 DP 'must show, where appropriate ... open space, recreation and leisure facilities ...'.[25]
2. The 2014 DP outlines that open space is provided in a combination of encumbered areas of land relating to the creek environs and unencumbered land that can be used for passive recreational pursuits. The Framework Plan is annotated to provide 12.97 ha of open space and 14.85 ha of drainage reserves. The Framework Plan also shows three local parks totalling 3.07 ha.[26]
3. The Council contends there is insufficient unencumbered open space. Much of the proposed open space areas are encumbered by slope, proximity to waterways or not appropriate for use for recreational purposes because of ecological values (as recommended in the ecological evidence). Mr McIlrath submitted that the proposed open space areas do not satisfy Council's requirements for neighbourhood open space under its Open Space Strategy 2010-2015 for such land to be generally a minimum of 0.75 hectares in size and located within 500 m of all residential properties.
4. In contrast, Mr Chiappi submitted the DPO7 merely requires open space areas to be shown on the Development Plan, which the 2014 DP does and is sufficient for it to do so in a general manner. He argued the mechanism for the provision of open space is the planning permit for subdivision or development. The 2014 DP provides sufficient land as open space that exceeds the 5% requirement under the Subdivision Act 1988.
5. The estate is 117.84 ha of which 5% equates to 5.89 ha and what the 2014 DP has set aside is a total area of 27.82 ha (12.97 ha as open space and 14.85 ha as drainage reserve) or 23.2% of the estate area. The waterway and future conservation reserves (both cultural and ecological) provide high quality passive open space that, although may be considered encumbered due to waterway and flood liability, would nevertheless be available and useable for most times for passive open space.
6. We find the open space areas identified and noted in the 2014 DP are generally satisfactory. Although areas of open space may be encumbered, these areas are not likely to be unavailable at all times. The Council's reliance on an open space strategy that is not a reference document in the Hume Planning Scheme does not dissuades us from our finding. Opportunities for additional open space areas for passive enjoyment of the environmental values of the area may also be available as a result of our recommendations for parts of the site to be further considered and planned for improved cultural and environmental protection.
7. There is a timing issue regarding the development of the waterway reserve area along that section of Kismet Creek located east of the Canterbury Road crossing (stage 2C). The Council has sought to require by way of permit conditions the development of this section of the Kismet Creek stream and open space reserve as part of the development of stage 2C.
8. This section of the Kismet Creek stream and open space reserve forms part of stage 8 which is subject to further investigation as part of the 2014 DP. We do not consider it appropriate to require the stream and open space reserve along Kismet Creek east of the Canterbury Road crossing to be provided as part of stage 2C when it is shown as part of another separate stage in the 2014 DP.
9. However, we also do not consider it sensible for this part of the Kismet Creek stream and open space reserve to be tied to a stage that is subject of future investigation for development/conservation purposes. To achieve orderly planning, the provision of this part of the stream and open space reserve should be timed for completion and transfer to the Council before any stage is commenced north of Kismet Creek beyond stages 5, 6, 7 & 10. Accordingly, we will modify the 2014 DP accordingly.

1. As we have stated, the 2014 DP includes drainage reports dated 2011 and 2013, a 2014 ecological report, a 2014 draft landscape concept plan, and a 2014 bushfire assessment report. As a practical measure, we do not support these documents forming part of the Development Plan. Some of these documents are already out of date. Others may become so. We do not want to burden Canterbury Hills and the Council with the need for frequent amendments. Where these documents are identified in the Development Plan Report, they should be identified as reference documents. We will modify the 2014 DP accordingly.

1. Our task is to review the Council's failure to decide the permit applications. In summary, the applications are:
   • Permit application no. 8779: Subdivision of the land in stages 2C & 3 into a total of 33 lots (Proceeding no. P327/2013).
   • Permit application no. P9976: Subdivision of the land in stage 5 into 24 lots (Proceeding no. P328/2013).
   • Permit application no. P10105: Subdivision of the land in stage 6 into 40 lots (Proceeding no. P329/2013).
   • Permit application no. P14424: Subdivision of the land in stages 7, 10 & 11 into a total of 94 lots (Proceeding no. P424/2013).
2. Fundamentally, these stages affects land in the north-eastern area of the estate and involves a road crossing of Kismet Creek and extension of residential development on the north side of Kismet Creek for the first time.
3. Subdivision of the estate must meet the residential subdivision requirements of the scheme.[27] The Council did not press with any force any failure to comply with these requirements in the design of these stages. We accept the opinion of Mr Negri that the permit applications appropriately respond to the requirements.[28]
4. Part of the estate is in a LSIO. The only part of all the stages in the permit applications that is affected by the LSIO is stage 2C. Stage 2C provides for a road across the existing embankment next to a water body on Kismet Creek and north to the other stages. The construction of the road does not affect flood storage (or other LSIO purposes) because the embankment exists. The 1 in 100 year flood level is established. There is no reason to refuse a permit in respect of permit application no. 8779 on LSIO grounds.
5. The main issue with the permit applications is the requirement that a permit must be generally in accordance with a development plan.[29] As we are approving the 2014 DP subject to some modifications, our assessment concerns how the permit applications respond to the 2014 DP, as approved with those modifications.
6. Regarding native vegetation, the permit applications affect three habitat zones with stage 3 impacting on habitat zone R and stage 11 impacting habitat zones T & U and four scattered trees all located within the southern edge of stage 6.
7. Taken together, the applications result in the removal of a total extent of 2.416 ha (0.926 Habitat Hectares) of native vegetation comprising a total of 2.135 ha of remnant patches and four scattered trees.
8. Mr Brennan's evidence also indicates the removal of presumed Striped Legless Lizard habitat from Habitat Zone U associated with the permit application for stage 11.
9. The proposed extent of native vegetation removal means the applications are designated within the high risk assessment pathway under the Permitted Clearing of Native Vegetation - Biodiversity Assessment Guidelines.
10. DEPI has not objected to the grant of a permit in respect of each of the applications and have provided a Biodiversity Impact and Offset Requirements Report dated 3 November 2014 which outlines the proposed losses result in an offset requirement in Biodiversity Equivalence Units (BEUs) of:
    • 0.037 General BEUs; and
    • 0.559 Specific BEUs comprising habitat for the Bacchus Marsh Wattle (Acacia rostriformis).
11. Canterbury Hills consider the required offsets can be provided on adjoining land to the north subject to avoiding any necessary bushfire defendable space requirements for proposed new dwellings and Country Fire Authority clearances from residential dwellings for bushfire safety.[30]
12. The Council and Mr Organ expressed concern over the impacts on threatened species such as Striped Legless Lizard and Golden Sun Moth. Canterbury Hills submitted that the lack of objection from DEPI and the fact that a referral under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) shows that any further surveys for threatened species may be premature if the Commonwealth deems the proposed subdivision to not be a controlled action.
13. Permit application no. 14424 is for the subdivision of stages 7, 10 & 11 (in the far north-eastern corner of the estate) into a total of 94 lots. The application includes standard residential lots within stages 7 & 10 and for a combination of standard sized lots and smaller lots for medium density residential development in stage 11.
14. Regarding native vegetation and biodiversity issues, the area of land subject to the application includes two habitat zones (habitat zone T & U), both of which are located within stage 11. These habitat zones include Grassy Woodland (EVC 175_61) comprising native grasses part of which is experiencing some understorey shrub regrowth (considered by Mr Brennan to be Cassinia species - Dogwood) following disturbance. There are also two large old trees located within habitat zone T which are included as part of the remnant patch of native vegetation to be removed associated with habitat zone T.
15. As stated earlier in these reasons, we find that both the above habitat zones are potentially of importance as habitat value for Striped Legless Lizard and Golden Sun Moth and should be protected. Mr Brennan stated in his witness statement that some impact upon the Striped Legless Lizard is likely if development occurs in stage 11 (Habitat Zone U). This reinforces our finding. There would also be a benefit in connectivity with other areas of native vegetation further north on land adjoining the estate.
16. Accordingly, we support residential development in the areas of stages 7 & 10. We do not support residential development in stage 11, at this stage, for environmental reasons. There may be an opportunity for development in the future subject to further ecological assessment of habitat values for threatened species and appropriate retention of native vegetation.
17. Permit application no. 8779 is for subdivision of stages 2C & 3 into a total of 33 lots. The development of stage 3 affects Habitat Zone R (approximately 0.774 ha of EVC 175_61- Grassy Woodland). The condition score from the habitat hectare assessment does not rate this habitat zone of remnant native vegetation as of high quality. The native vegetation was not raised as an area of concern and we are satisfied that the loss of this area of native vegetation is reasonable.
18. The other area of concern was the potential for impacts to Growling Grass Frog habitat associated with the road crossing of Kismet Creek in Stage 2C. This issue is addressed under the subject of waterway planning, drainage and stormwater management in these reasons.

1. Permit no. 8950.01 (the permit) authorises the subdivision of stage 24. Condition 10 provides, in part -

(a) Prior to the issue of a Statement of Compliance detailed landscape and works plans in accordance with Canterbury Hills Development Plan landscape implementation schedule must be submitted to Council. Such plans must be certified by a suitably qualified experts in hydrology, hydraulics, waterway management and soils engineering as being capable of achieving best practice outcomes for erosion control.

(b) Prior to the issue of a Statement of Compliance for the first completed stage from the group (meaning stage 23, 24 and 25), plans for landscaping for all development west of Stage 2C (including areas along the watercourse) must be submitted to the satisfaction and approval of the Responsible Authority.

(c) Prior to the issue of a Statement of Compliance for the second completed stage from the group (meaning stage 23, 24 and 25), the landscaping provided in Condition 10(b) must be commenced to the satisfaction and approval of the Responsible Authority.

1. Stage 23 is complete. Stage 24 has been constructed and Canterbury Hills seeks a statement of compliance to facilitate sales of the 14 lots in the stage.[31]
2. Stage 24 abuts a section (about 70 m long) of the stream reserve on the south side of the Kismet Creek. Condition 10(b) requires a landscape plan for a broader section (about 800 m long) between stage 2C (the proposed road crossing) and the western boundary of the estate.[32]
3. On 18 June 2014 Canterbury Hills submitted a landscape plan under condition 10(b).[33] The Council sought changes to the plan. On 10 September 2014 Canterbury Hills submitted a revised plan. On 3 October 2014, the Council refused to approve the plan. On 23 October 2014, and after filing Application no. P1815/2014 seeking to review the Council's decision under condition 10(b), Canterbury Hills submitted further revised plans to the Council. Officers of the Council gave Canterbury Hills' representatives a list of detailed changes. The response effectively reserved the Council's position on the landscape plan in relation to other and broader issues.
4. At the end of the hearing on 19 November 2014, Mr Chiappi sought to tender a copy of the landscape plan submitted on 23 October 2014 with the detailed changes marked thereon. Mr Chiappi submitted that Canterbury Hills accepted all the detailed changes. Mr McIlrath had not seen the marked changes and we directed the parties to review the detailed changes. At the final day of the hearing on 5 December 2014, Mr Chiappi tendered a further version of the landscape plan that he said incorporates all the detailed changes (the final landscape plan). He submitted he served a copy of this version on the Council two days before the final hearing day.
5. We made interim orders requiring Canterbury Hills to specify a list of the changes that had been included in the final landscape plan and allowing the Council to specify whether the plan had incorporated all the detailed changes. The Council filed a list of changes that it stated had not been incorporated.
6. Condition 10(b) does not specify what the landscape plan must include. The final landscape plan deals with all proposed stream reserves in the broader area. It includes Melbourne Water's reserve boundaries, flood levels, contours, existing and proposed trees, planting areas and beds, planting schedules, retaining walls, drainage inverts, some areas where slopes require further investigation, erosion works, park furniture, shared trails, fences and detailed sections.
7. The broader reasons on which the Council refuses to endorse the landscape plan may be summarised as follows -
   • Approval is premature pending resolution of the 2014 DP.
   • Approval is premature pending resolution of the voluntary CHMP.
   • The landscape plan has insufficient detail for the purpose of 'vesting public works'.
   • An orderly approach to staged implementation of landscaping in the entire area west of stage 2C requires a section 173 agreement.
   • Melbourne Water needs more details before it could approve works along the watercourse.
8. The Council's grounds are insufficient to refuse approval for the following reasons.
9. First, we have decided that, subject to some changes that are not material to the landscape plan, the 2014 DP should be approved. The final landscape plan is consistent in its scope with the 2014 DP.
10. Second, the final landscape plan is consistent with known Aboriginal cultural heritage sites. If the voluntary CHMP results in recommendations for adjustment to the proposed stream reserve boundary, then adjustments to the Development Plan and the landscape plan can be made, if required.
11. Third, condition 10(b) does not require detailed construction details. That goes beyond what a typical landscape plan shows or needs to show. Further details may be required before works commence to meet the Council's requirements for public works or Melbourne Water's requirements for works on watercourses. As stated above, the final landscape plan deals with a relevant and appropriate range of landscape-related matters.
12. Fourth, the sequence in which permit applications are sought and granted for stages and those stages are constructed is sufficient for implementation in stages.
13. We have considered the Council's list of changes filed after the end of the hearing. We do not intend to identify and assess each of them in these reasons. In the interests of brevity, we have accepted some of them and this means the final landscape plan needs further amendment.
14. We will approve the final landscape plan subject to further modification. We will substitute the final landscape plan for the landscape plans submitted to and refused by the Council. Although Canterbury Hills did not seek to substitute plans, we may amend a document in a proceeding. We do not consider this action disadvantages the Council because it considered the final landscape plan, in effect, on and after 23 October 2014 and gave a detailed response on certain matters. We also gave the Council an opportunity to further consider the final landscape plan after the hearing. The Council has had an adequate opportunity to make submissions about all its grounds for refusing to approve the final landscape plan
15. We will also strike out Application no. 326/2013. This was not pursued by Canterbury Hills. The parties thought it had been resolved in preliminary phases on the proceeding. We found no relevant order. The parties consented to striking out the application.

1. For the above reasons, we will dispose of the proceeding in the following ways.
2. We will set aside the Council's decision to refuse to approve the 2014 DP and approve it subject to the incorporation of specified changes. Canterbury Hills will be directed to incorporate those changes within 60 days and submit the modified 2014 DP to the Council for approval
3. We will set aside the Council's deemed refusal to grant permits in respect of the permit applications and we will grant permits subject to conditions. The Council will be directed to issue the permit once the modifications to the 2014 DP are finalised.
4. We will set aside the Council's decision to refuse to approve the landscape plan under condition 10(b) of permit no. 8950.01 and approve it subject to the incorporation of specified changes. Canterbury Hills will be directed to incorporate those changes within 60 days and submit the modified landscape plan to the Council for approval.
5. We will strike out the application to review the Council's failure to issue a statement of compliance for stage 24.

1. On the cover page, for 'Revised 2014 (Version 4)', substitute '[insert month], 2015' being the month the Applicant completes the preparation of the modified Development Plan in accordance with paragraph 4 of the Tribunal's order in Proceeding no. P325/2013 dated 28 January 2015
2. On the contents page, omit Appendices C, D, E & F.
3. On the contents page, omit the Revision Table.
4. In section 1.1, in the first line on page 4, omit '(Revised 2013)'.
5. In second paragraph under section 3.2, for 'the Development Plan at Appendix A', substitute 'the Framework Plan at Appendix A'.
6. In section 3.3, add the following sentence at the end of the first paragraph -

Development will proceed in an orderly manner. In particular, stage 8 will be completed before any stage north of Kismet Creek other than stages 5, 6, 7 & 10 is started. This will ensure the Kismet Creek reserve east of the Canterbury Road extension is developed and transferred to the Council in an orderly and timely manner and links with other parts of the creek reserve west of the road.

1. In section 3.3, in the first line of the third paragraph, insert 'possible' before 'provision'.
2. In section 3.4, add the following sentence at the end of the first paragraph -

To ensure an orderly creation of public open space along Kismet Creek, the creek reserve east of the Canterbury Road extension will be developed and transferred to Council before any stage is commenced north of Kismet Creek beyond stages 5, 6, 7 & 10.

1. In section 3.5, in the second sentence in the third paragraph, after 'The report' insert '(Bushfire Attack Level Assessment dated July 2014 prepared by Brett Lane & Associates Pty Ltd)'.
2. In section 3.8, for the first sentence in the fifth paragraph, substitute -

A stormwater treatment strategy (Engeny Pty Ltd, MUSIC Modelling Report dated January 2013) has been prepared for the development of the remaining stages of the Canterbury Hills Estate. This report adds to a previous surface water planning strategy (Engeny Pty Ltd, Surface Water Planning Strategy - Stages Upstream of Existing Lake dated 11 August 2011) which provided a stormwater treatment strategy for Kismet Creek and the developed stages of the estate,

Kismet Creek and Billy Goat Creek both contain potential breeding habitat for the Growling Grass Frog (Litoria raniformis). These waterways may also provide dispersal habitat for the movement of the species along these waterways. It is important to ensure that works within these waterways and stream reserves should have regard to the Growling Grass Frog and its habitat requirements including avoiding works during breeding and migration periods.

An assessment of lake water turnover will be undertaken to ensure that the potential for algal blooms to be triggered from stormwater flows from developed residential areas are prevented. Achieving best practice stormwater treatment is desirable and that, despite the physical constraints of not finding enough suitable land area for treatment wetlands within the stream reserve areas, other stormwater treatment measures should be considered to achieve best practice targets.

Stage MDH3 lies between a proposed stream reserve in stage 14 and the existing Kismet Creek reserve. Although it is outside the 100 year ARI flood level, it contains a drainage line between these reserves. Stage MDH3 provides for up to 30 medium density housing units. Flood modelling shows the potential for part of stage MDH3 to be subject to overland flows. Consequently, when a permit application is made to develop stage MDH3, the layout of vehicle accessways and building envelopes will have to be designed to not interfere with these overland flows.

As some erosion affected areas may be located in more than one stage shown on the Framework Plan, the staging of development will have regard to the efficient treatment of such areas.

The voluntary CHMP will be prepared and approved before a permit is granted for any stage containing or abutting the Sunbury Ring 4 registered Aboriginal cultural heritage place ie stages 26B, 31, 33, 27B & 28 as shown on the Framework Plan.

1. In section 4.4, for the first two sentences of the second paragraph, substitute -

The Consolidated Ecological Report (February 2014) and the Biodiversity Assessment of Stages 2C, 3, 5, 6, 7, 10, 11 & Review of Development Plan (November 2014) both prepared by Brett Lane & Associates (BLA), builds on the numerous ecological assessments undertaken for land within the Canterbury Hills Estate. Both reports detail that the Canterbury Hills Estate has a moderately high relief with an abrupt spur descending from the north to the low-lying catchment of Kismet Creek**.**

1. In section 4.4, for the last paragraph, substitute -

On-going development of the Canterbury Hills Estate will seek to accommodate in part the recommendations of both the Consolidated Ecological Assessment (with the exception of figure 3 of that report) and the Biodiversity Assessment of stages 2C, 3, 5, 6, 7, 10, 11 & Review of Development Plan through the retention of the vegetated reserves, open spaces and the following areas, as identified in the Framework Plan:

• The northern Box Ironbark woodland (habitat zones A, B, C and E associated with stages 13, 14 & 15).
• Native grassland areas (habitat zones F, H, T & U associated with stages 11, 35 & 36).
• All individual native indigenous trees including both those within habitat zones and outside of habitat zones where they are designated as scattered trees.

Further investigation will be undertaken in the above areas identified in the Framework Plan to ensure protection of indigenous vegetation within a future development layout, as appropriate**.**

1. Omit the road and lot layout in stage 11.
2. Insert the following notation for stage 11 -

The road and lot layout for stage 11 is subject to detailed investigation before a permit application is made to subdivide land in the stage to ensure protection of indigenous vegetation and habitat for Striped Legless Lizard and Golden Sun Moth, as appropriate.

1. Omit the road and lot layout in stages 13, 14 & 15.
2. For the notation attached to stage 15, substitute the following notation attached to stages 13, 14 & 15 -

The road and lot layout for the parts of stages 13, 14 & 15 not in the Stream Reserve is subject to detailed investigation before a permit application is made to subdivide land in either of the stages to ensure protection of indigenous vegetation and management of areas of erosive soil.

1. Omit the road and lot layout in stages 35 & 36.
2. Insert the following notation for stages 35 & 36 -

The road and lot layout for the parts of stages 35 and 36 not in the Stream Reserve is subject to detailed investigation before a permit application is made to subdivide land in either of the stages to ensure protection of indigenous vegetation and management of areas of erosive soil.

1. Omit the road layout in stage 8.
2. For the notation attached to stage 8, substitute -

The road and lot layout in stage 8 will be determined following a review of land form and topography and before a permit application is made to subdivide land in the stage.

1. Attach the following notation to Sunbury Ring 4 -

The road, lot and reserve layout in the vicinity of Sunbury Ring 4 will be reviewed for consistency with the voluntary cultural heritage management plan prepared and approved under the Aboriginal Heritage Act 2006

The possible extension to the east of the local park in stage 36 to recognise biodiversity values will be investigated before a permit application is made to subdivide land in stage 36.

1. In the table, omit the number of lots for stages 8, 11, 13, 14, 15, 35 & 36 and insert 'to be determined' and consequentially amend the numbers of lots in the table and in the Development Plan report.

1. Amend this Plan consistent with the above modifications to the Framework Plan.

Native Vegetation Mapping & Draft Landscape Concept Plan

Subdivision into stages in the General Residential Zone and the Land Subject to Inundation Overlay, construction or carrying out of works in the Land Subject to Inundation Overlay, and removal of native vegetation

1. Before a plan of subdivision is certified for any stage, revised plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. These plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plan prepared by Beveridge Williams entitled Framework Plans - Overall Site stamped 'Draft' (drawing reference 0900665_FP01 Version 02 sheet 1 of 1 dated 23 July 2014) as it relates to stages 2C & 3 but further modified to -
   • (a) Show the 34 lots generally in accordance with the Development Plan approved under Development Plan Overlay 7.
   • (b) Provide overland flow paths and connections to Kismet Creek to meet Melbourne Water requirements.
   • (c) Include detailed plans including all bearings, distances, levels, lot sizes, reserves and easements.
   • (d) Include detailed cross-sections for road reserves.
   • (e) Provide stormwater flows and treatment to the satisfaction of Hume City Council.

1. The layout of the staged subdivision as shown on the endorsed plans must not be altered or modified except with the written consent of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any road and/or drainage works associated with any stage of the subdivision, or at such other time which is agreed by the Responsible Authority, detailed design plans must be submitted to and approved by the Responsible Authority for construction under the provisions of Part 3 of the Subdivision Act 1988.
2. When approved the construction plans will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be submitted for stamping approval. The plans must include -
   • (a) Engineering plans, standard drawings and specifications in accordance with an Infrastructure Design Manual approved by the Responsible Authority for the proposed works that are to become public assets such as roads, intersections, drains, conduits, bridges, public lighting and the like. This must include plans, drawings and specifications that show the existing embankment can accommodate the creek road crossing and intended traffic generation.
   • (b) Demonstrate that the road crossing the creek meets Melbourne Water, Hume City Council and ANCOLD requirements.
   • (c) Typical cross-sections for each street type.
   • (d) A table of offsets or setbacks within road reserves for all utility services and street trees.
   • (e) The provision of conduits to service premises fronting on to the roads, created for the more efficient or easy laying, repairing or replacing of water services and gas services.
   • (f) Details of any water, gas, electricity and/or telecommunication conduits as required by the relevant service provider and/or the Responsible Authority.
   • (g) Location and alignment of kerbs, indented parking spaces, footpaths, shared paths, bicycle lanes, bus stops and traffic control devices where appropriate.
   • (h) Fully sealed pavements with kerb and channel.
   • (i) Where appropriate in accordance with the design guidelines, concrete footpaths on both sides of every road with the exception of any access lane and any other circumstances as agreed with the responsible authority.
   • (j) Overland flow paths (100 year ARI) to indicate how excess runoff will safely be conveyed to its destination. Unless otherwise approved, no overland flows will be permitted to be discharged through private property.
   • (k) Drainage outfall system (both interim and ultimate) indicating legal point of discharge and any access requirements for construction and maintenance.
   • (l) Underground drainage network (both major and minor) incorporating, as appropriate:
     • Easement drainage and inlets for all lots which slope to the rear.
     • Connection to the underground drainage network for all lots that slope towards a road.
     • Land required for maintenance access.
     • Watercourses, lakes, wetlands, and silt ponds.
     • Piped elements (for major drains) showing sizing.
   • (m) Cut-off drains to intercept stormwater run-off from adjoining properties. Where cut-off drains are placed on adjoining properties in different ownership than the subdivision developer, written approval to construct the cut-off drain along with the creation of an easement over the drain is to be provided by the adjoining land owner.
   • (n) Temporary turn-around areas within the site for waste collection vehicles (single unit truck) at the temporary dead end of any road.
   • (o) Any court heads designed to allow for sufficient road reserve width to accommodate a three point turn for a single unit truck.
   • (p) Provision of street trees within road reserves.
   • (q) Location and design of street lighting in accordance with the requirements of AS/NZS 1158.1.1:2005, vehicular traffic (category V) lighting, Pedestrian Area (Category P) lighting, Essential Services Commission Public Lighting Code 2005 and AGLE Public Lighting Technical standard. Non standard street lighting will be permitted in accordance with Council's Public Place Lighting Policy.
   • (r) Any water sensitive urban design (WSUD) features to prevent litter, sediments and oils from entering the drainage system in accordance with Best Practice Environmental Management Guidelines (CSIRO 1999).
   • (s) Permanent survey marks, levelled to the Australian Height Datum and coordinated to the Australian Map Grid (MGA Zone 55 GDA94).
   • (t) Details of any cut and fill.
   • (u) Details of any traffic control devices.
   • (v) Provision of a vehicular crossing to each lot and municipal reserve created by the subdivision as follows -
     • Vehicle crossover layout and specifications which must be designed in accordance with the standard drawings.
     • Vehicle crossovers which must be located a minimum 1 m from any service facilities.
     • Vehicle crossovers which must be offset a minimum 10 m from any side streets from the intersecting kerb alignments.
   • (w) Intersection treatments from an existing carriageway designed and constructed in accordance with AustRoads Guide to Traffic Engineering Practice, Intersections at Grade.
   • (x) Where roundabouts are required, they must be designed -
     • To accommodate an ultra-low floor bus (ULFB, 12.5m) through and turning movement at the intersection of two connector streets.
     • To cater for all service vehicle turning movements at the intersection of two local access streets.
     • With road reserve splays in accordance with Hume City Council's Infrastructure Design Manual.
   • (y) Splays (minimum 3m x 3m) which must be provided at all intersections of the local road network.
   • (z) 'As Constructed' drawings in the form of an electronic pdf file are to be forwarded to Hume City Council.
   • (aa) A CD containing the 'As Constructed' drawings in pdf file and AutoCAD Map DWG format (latest version) in GDA94-MGA Zone 55 mapping coordinates in accordance with the DSPEC standard with all additional attribute data for subdivision assets clearly tabulated on digital drawings. All identifiable areas such as pavement surfaces, footpaths and nature strips (where available) to be polygonised and displayed in different drawing layers and forwarded to Hume City Council.
3. Unless agreed to in writing by Hume City Council under section 21(1)(b)(ii) of the Subdivision Act 1988, all works shown on the endorsed construction plans must be constructed and are to be completed to the satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance pursuant to section 21 of the Subdivision Act 1988 for the relevant stage.
4. Before a statement of compliance is issued for the any stage, the owner must carry out the works to minimise tunnel erosion that are specified in the report prepared by Civil Test Pty Ltd ref no. RM1576/03-3 to the satisfaction of the Responsible Authority.
5. Prior to the issue of a Statement of Compliance for any stage, an agreement must be executed with the Responsible Authority pursuant to section 173 of the Planning and Environment Act 1987 to provide for the staged delivery of public transport infrastructure on the northern side of Kismet Creek, to the satisfaction of Public Transport Victoria.

Construction Site Environmental Management Plan

1. Prior to commencement of works, a Construction Site Environmental Management Plan (CSEMP), must be submitted to and approved by the Responsible Authority to address the potential impacts of construction works. The CSEMP must be in generally in accordance with 'doing it right on subdivision (EPA 2004)' and address methods for the protection of environmental significant areas, weed control, rehabilitation of cut surfaces, location of stockpiles, sediment and dust control, the use of hazardous substances and dealing with any safety procedures as advised in the Lane Piper Environmental Audit Report and Certificate of Environmental Audits (Audit Areas A and B) dated December 2006 and September 2009 respectively.
2. The approved CSEMP must be implemented to the satisfaction of the Responsible Authority throughout the construction process.
3. Prior to the commencement of works, a soil and fill recovery plan must be submitted to the satisfaction of the Responsible Authority. This plan must address: the quantity and quality of fill to be generated during construction, the reuse options for fill within the site, the quantity of fill to be removed off site and the location where the fill will be disposed. All fill removed off site must only be taken to permitted/legal sites of disposal to the satisfaction of the responsible authority. When approved this plan will form part of the permit.

1. The permit holder must submit to the Responsible Authority for approval 3 copies of landscape development plans for all open space, streetscape development and landscape elements. When approved, the plans will be endorsed and will then form part of the permit. The development of these areas, including fencing of all reserves, must be completed to the satisfaction of the Responsible Authority in accordance with the approved plans prior to the issue of a statement of compliance.
2. Hume City Council must be notified in writing when the public open space/landscape areas are completed, and an inspection must be undertaken before the maintenance period is to commence. The open space areas/landscape must be maintained for a minimum period of two (2) years after completion.
3. Prior to the commencement of the maintenance period, an electronic copy of as-constructed files for all approved landscape development works (including approved irrigation systems) must be submitted to Hume City Council.
4. At the end of the specified maintenance period, the owner must request an end of maintenance inspection by Hume City Council. This inspection will ensure that the works have been maintained to the prescribed standard and the reserves can be transferred to Hume City Council.
5. Prior to commencement of the maintenance period, a safety and functional audit for the design and construction of all rain gardens, bio retention, sediment collection facilities and wetlands must be submitted to the Responsible Authority, and any rectification works required under that audit must be completed.
6. Before handover to Hume City Council, a functional audit - including infiltration tests - for all Water Sensitive Urban Design elements (including tree pits, rain gardens, bio retention, sediment collection facilities and wetlands) must be submitted to Hume City Council, and any rectification works required under that audit must be completed to the satisfaction of Hume City Council.

Land vested in Hume City Council or other Authorities

1. Land required for community facilities, public open space, reserves or public roads must be shown on a plan of subdivision as a reserve in favour of Hume City Council or another relevant person or body.
2. By no later than four weeks after the date the plan of subdivision is registered, the following must be sent to Hume City Council:
   • (a) A Certificate of Title for all land vested in Hume City Council on the plan of subdivision.
   • (b) A clear A3-sized photocopy of the Plan of Subdivision approved by the Land Title Office.

1. The owner of the land must enter into an agreement with a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time.
2. The owner of the land must enter into an agreement with a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
3. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
   • (a) A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time.
   • (b) A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. Before works start, the permit holder must advise all persons undertaking the vegetation removal on site of all relevant conditions of this permit.
2. Before the vegetation removal starts, the boundaries of all vegetation to be removed and retained must be clearly marked on the ground to the satisfaction of the Responsible Authority.
3. Any pruning, lopping or trimming of vegetation to be retained must be done by a qualified arborist in accordance with Australian Standard 4373-2007 - Pruning of Amenity Trees.
4. In order to offset the removal of 0.774 ha of native vegetation approved as part of this permit, the applicant must provide a native vegetation offset that meets the following requirements and is in accordance with the Permitted clearing of native vegetation - Biodiversity assessment guidelines and the Native vegetation gain scoring manual:
5. The general offset must contribute gain of 0.045 general biodiversity equivalence units, must be located within the Port Phillip and Westernport Catchment Management Authority boundary or the City of Hume municipal district, and must have a strategic biodiversity score of at least 0.103.
6. Before any native vegetation is removed, evidence that an offset has been secured must be provided to the satisfaction of the Responsible Authority. This offset must meet the offset requirements set out in this permit and be in accordance with the requirements of Permitted clearing of native vegetation - Biodiversity assessment guidelines and the Native vegetation gain scoring manual. Offset evidence can be either a security agreement, to the required standard, for the offset site or sites, including a 10 year offset management plan, or a credit register extract from the Native Vegetation Credit Register.
7. Every year, for ten years, after the Responsible Authority has approved the offset management plan, the owner must provide notification to the Responsible Authority of the management actions undertaken towards the implementation of the offset management plan. An offset site condition statement, including photographs must be included in this notification.

1. Stormwater runoff from the subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the 'Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999'.
2. Prior to the issue of a Statement of Compliance, the owner must enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains and watercourses.
4. At least 21 days prior to the commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
5. All lots must achieve appropriate freeboard in relation to local overland flow paths to Hume City Council's satisfaction.
6. Local drainage must be to the satisfaction of Hume City Council.
7. Engineering plans of the subdivision (in electronic format) must be forwarded to Melbourne Water for comment/approval. A Certified Survey Plan may be required following Melbourne Water's comments on the engineering drawings.
8. Prior to certification, the plan of subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

1. The owner must enter into an agreement with Yarra Valley Water for the provision of water services.
2. The owner must enter into an agreement with Yarra Valley Water for the provision of sewerage services.

1. The plan of subdivision submitted for certification must be referred to SP AusNet (Gas) in accordance with Section 8 of the Subdivision Act 1988.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to Jemena Electricity Networks (Vic) Ltd in accordance with Section 8 of that Act.
2. The owner must enter into an agreement for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision as required by Jemena Electricity Networks (Vic) Ltd. If there are buildings or other installations on the land in the subdivision and are connected to the electricity supply, they must be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.

1. This permit will expire if one of the following circumstances applies:
   • (a) The plan of subdivision for the first stage is not certified within two years of the date of this permit.
   • (b) The plan of subdivision for the last stage of the subdivision is not certified within five years of the date the plan of subdivision for the first stage is certified.
   • (c) The registration of the last stage of the subdivision is not completed within five years of the certification of that plan of subdivision.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

1. Before a plan of subdivision is certified, revised plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. These plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plan prepared by Beveridge Williams entitled Framework Plans - Overall Site stamped 'Draft' (drawing reference 0900665_FP01 Version 02 sheet 1 of 1 dated 23 July 2014) as it relates to stage 5 but further modified to -
   • (a) Include detailed plans including all bearings, distances, levels, lot sizes, reserves and easements.
   • (b) Include detailed cross-sections for road reserves.
   • (c) Provide stormwater flows and treatment to the satisfaction of Hume City Council.

1. The layout of the subdivision as shown on the endorsed plans must not be altered or modified except with the written consent of the Responsible Authority.

1. The land must be drained to the satisfaction of the Relevant Authority.

1. Prior to the commencement of any road and/or drainage works associated with the subdivision, or at such other time which is agreed by the Responsible Authority, detailed design plans must be submitted to and approved by the Responsible Authority for construction under the provisions of Part 3 of the Subdivision Act 1988.
2. When approved the construction plans will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be submitted for stamping approval. The plans must include -
   • (a) Engineering plans, standard drawings and specifications in accordance with an Infrastructure Design Manual approved by the Responsible Authority for the proposed works that are to become public assets such as roads, intersections, drains, conduits, bridges, public lighting and the like. This must include plans, drawings and specifications that show the existing embankment can accommodate the creek road crossing and intended traffic generation.
   • (b) Typical cross-sections for each street type.
   • (c) A table of offsets or setbacks within road reserves for all utility services and street trees.
   • (d) The provision of conduits to service premises fronting on to the roads, created for the more efficient or easy laying, repairing or replacing of water services and gas services.
   • (e) Details of any water, gas, electricity and/or telecommunication conduits as required by the relevant service provider and/or the Responsible Authority.
   • (f) Location and alignment of kerbs, indented parking spaces, footpaths, shared paths, bicycle lanes, bus stops and traffic control devices where appropriate.
   • (g) Fully sealed pavements with kerb and channel.
   • (h) Where appropriate in accordance with the design guidelines, concrete footpaths on both sides of every road with the exception of any access lane and any other circumstances as agreed with the responsible authority.
   • (i) Overland flow paths (100 year ARI) to indicate how excess runoff will safely be conveyed to its destination. Unless otherwise approved, no overland flows will be permitted to be discharged through private property.
   • (j) Drainage outfall system (both interim and ultimate) indicating legal point of discharge and any access requirements for construction and maintenance.
   • (k) Underground drainage network (both major and minor) incorporating, as appropriate:
     • Easement drainage and inlets for all lots which slope to the rear.
     • Connection to the underground drainage network for all lots that slope towards a road.
     • Land required for maintenance access.
     • Watercourses, lakes, wetlands, and silt ponds.
     • Piped elements (for major drains) showing sizing.
   • (l) Cut-off drains to intercept stormwater run-off from adjoining properties. Where cut-off drains are placed on adjoining properties in different ownership than the subdivision developer, written approval to construct the cut-off drain along with the creation of an easement over the drain is to be provided by the adjoining land owner.
   • (m) Temporary turn-around areas within the site for waste collection vehicles (single unit truck) at the temporary dead end of any road.
   • (n) Any court heads designed to allow for sufficient road reserve width to accommodate a three point turn for a single unit truck.
   • (o) Provision of street trees within road reserves.
   • (p) Location and design of street lighting in accordance with the requirements of AS/NZS 1158.1.1:2005, vehicular traffic (category V) lighting, Pedestrian Area (Category P) lighting, Essential Services Commission Public Lighting Code 2005 and AGLE Public Lighting Technical standard. Non standard street lighting will be permitted in accordance with Council's Public Place Lighting Policy.
   • (q) Any water sensitive urban design (WSUD) features to prevent litter, sediments and oils from entering the drainage system in accordance with Best Practice Environmental Management Guidelines (CSIRO 1999).
   • (r) Permanent survey marks, levelled to the Australian Height Datum and coordinated to the Australian Map Grid (MGA Zone 55 GDA94).
   • (s) Details of any cut and fill.
   • (t) Details of any traffic control devices.
   • (u) Provision of a vehicular crossing to each lot and municipal reserve created by the subdivision as follows -
     • Vehicle crossover layout and specifications which must be designed in accordance with the standard drawings.
     • Vehicle crossovers which must be located a minimum 1m from any service facilities.
     • Vehicle crossovers which must be offset a minimum 10 m from any side streets from the intersecting kerb alignments.
   • (v) Intersection treatments from an existing carriageway designed and constructed in accordance with AustRoads Guide to Traffic Engineering Practice, Intersections at Grade.
   • (w) Where roundabouts are required, they must be designed -
     • To accommodate an ultra-low floor bus (ULFB, 12.5m) through and turning movement at the intersection of two connector streets.
     • To cater for all service vehicle turning movements at the intersection of two local access streets.
     • With road reserve splays in accordance with Hume City Council's Infrastructure Design Manual.
   • (x) Splays (minimum 3m x 3m) which must be provided at all intersections of the local road network.
   • (y) 'As Constructed' drawings in the form of an electronic pdf file are to be forwarded to Hume City Council.
   • (z) A CD containing the 'As Constructed' drawings in pdf file and AutoCAD Map DWG format (latest version) in GDA94-MGA Zone 55 mapping coordinates in accordance with the DSPEC standard with all additional attribute data for subdivision assets clearly tabulated on digital drawings. All identifiable areas such as pavement surfaces, footpaths and nature strips (where available) to be polygonised and displayed in different drawing layers and forwarded to Hume City Council.
3. Unless agreed to in writing by Hume City Council under section 21(1)(b)(ii) of the Subdivision Act 1988, all works shown on the endorsed construction plans must be constructed and are to be completed to the satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance pursuant to section 21 of the Subdivision Act 1988.

Construction Site Environmental Management Plan

1. Prior to commencement of works, a Construction Site Environmental Management Plan (CSEMP), must be submitted to and approved by the Responsible Authority to address the potential impacts of construction works. The CSEMP must be in generally in accordance with 'doing it right on subdivision (EPA 2004)' and address methods for the protection of environmental significant areas, weed control, rehabilitation of cut surfaces, location of stockpiles, sediment and dust control, the use of hazardous substances and dealing with any safety procedures as advised in the Lane Piper Environmental Audit Report and Certificate of Environmental Audits (Audit Areas A and B) dated December 2006 and September 2009 respectively.
2. The approved CSEMP must be implemented to the satisfaction of the Responsible Authority throughout the construction process.
3. Prior to the commencement of works, a soil and fill recovery plan must be submitted to the satisfaction of the Responsible Authority. This plan must address: the quantity and quality of fill to be generated during construction, the reuse options for fill within the site, the quantity of fill to be removed off site and the location where the fill will be disposed. All fill removed off site must only be taken to permitted/legal sites of disposal to the satisfaction of the responsible authority. When approved this plan will form part of the permit.

1. The permit holder must submit to the Responsible Authority for approval 3 copies of landscape development plans for all open space, streetscape development and landscape elements. When approved, the plans will be endorsed and will then form part of the permit. The development of these areas must be completed to the satisfaction of the Responsible Authority in accordance with the approved plans prior to the issue of a statement of compliance.
2. Hume City Council must be notified in writing when the landscaping is completed, and an inspection must be undertaken before the maintenance period is to commence. The landscaping must be maintained for a minimum period of two (2) years after completion.
3. Prior to the commencement of the maintenance period, an electronic copy of as-constructed files for all approved landscape development works (including approved irrigation systems) must be submitted to Hume City Council.
4. At the end of the specified maintenance period, the owner must request an end of maintenance inspection by Hume City Council. This inspection will ensure that the works have been maintained to the prescribed standard.
5. Prior to commencement of the maintenance period, a safety and functional audit for the design and construction of all rain gardens, bio retention, sediment collection facilities and wetlands must be submitted to the Responsible Authority, and any rectification works required under that audit must be completed.
6. Before handover to Hume City Council, a functional audit - including infiltration tests - for all Water Sensitive Urban Design elements (including tree pits, rain gardens, bio retention, sediment collection facilities and wetlands) must be submitted to Hume City Council, and any rectification works required under that audit must be completed to the satisfaction of Hume City Council.

Land vested in Hume City Council or other Authorities

1. Land required for community facilities, public open space, reserves or public roads must be shown on a plan of subdivision as a reserve in favour of Hume City Council or another relevant person or body.
2. By no later than four weeks after the date the plan of subdivision is registered, the following must be sent to Hume City Council:
   • (c) A Certificate of Title for all land vested in Hume City Council on the plan of subdivision.
   • (d) A clear A3-sized photocopy of the Plan of Subdivision approved by the Land Title Office.

1. The owner of the land must enter into an agreement with a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time.
2. The owner of the land must enter into an agreement with a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
3. Before the issue of a Statement of Compliance for he subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
   • (c) A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time.
   • (d) A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. Stormwater runoff from the subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the 'Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999'.
2. Prior to the issue of a Statement of Compliance, the owner must enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains and watercourses.
4. At least 21 days prior to the commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
5. All lots must achieve appropriate freeboard in relation to local overland flow paths to Hume City Council's satisfaction.
6. Local drainage must be to the satisfaction of Hume City Council.
7. Engineering plans of the subdivision (in electronic format) must be forwarded to Melbourne Water for comment/approval. A Certified Survey Plan may be required following Melbourne Water's comments on the engineering drawings.
8. Prior to certification, the plan of subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

1. The owner must enter into an agreement with Yarra Valley Water for the provision of water services.
2. The owner must enter into an agreement with Yarra Valley Water for the provision of sewerage services.

1. The plan of subdivision submitted for certification must be referred to SP AusNet (Gas) in accordance with Section 8 of the Subdivision Act 1988.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to Jemena Electricity Networks (Vic) Ltd in accordance with Section 8 of that Act.
2. The owner must enter into an agreement for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision as required by Jemena Electricity Networks (Vic) Ltd. If there are buildings or other installations on the land in the subdivision and are connected to the electricity supply, they must be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.

1. This permit will expire if one of the following circumstances applies:
   • (a) The plan of subdivision is not certified within two years of the date of this permit.
   • (b) The registration of the plan of subdivision is not completed within five years of the certification of the plan of subdivision.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

1. Before a plan of subdivision is certified for any stage, revised plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. These plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plan prepared by Beveridge Williams entitled Framework Plans - Overall Site stamped 'Draft' (drawing reference 0900665_FP01 Version 02 sheet 1 of 1 dated 23 July 2014) as it relates to stage 6 but further modified to -
   • (d) Provide overland flow paths and connections to Kismet Creek to meet Melbourne Water requirements.
   • (f) Any adjustments to lot or road boundaries that may be necessary to retain trees 45, 46, 47 & 48 as shown on figure 2 on page 21 of the statement of evidence prepared by Alan Brennan of Brett Lane & Associates Pty Ltd dated November 2014 filed in Victorian Civil and Administrative Tribunal Proceeding no. P325/2013.
   • (g) Include detailed plans including all bearings, distances, levels, lot sizes, reserves and easements.
   • (h) Include detailed cross-sections for road reserves.
   • (i) Provide stormwater flows and treatment to the satisfaction of Hume City Council.

1. The layout of the subdivision as shown on the endorsed plans must not be altered or modified except with the written consent of the Responsible Authority.

1. The land must be drained to the satisfaction of the Relevant Authority.

1. Prior to the commencement of any road and/or drainage works associated with the subdivision, or at such other time which is agreed by the Responsible Authority, detailed design plans must be submitted to and approved by the Responsible Authority for construction under the provisions of Part 3 of the Subdivision Act 1988.
2. When approved the construction plans will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be submitted for stamping approval. The plans must include -
   • (a) Engineering plans, standard drawings and specifications in accordance with an Infrastructure Design Manual approved by the Responsible Authority for the proposed works that are to become public assets such as roads, intersections, drains, conduits, bridges, public lighting and the like. This must include plans, drawings and specifications that show the existing embankment can accommodate the creek road crossing and intended traffic generation.
   • (b) Typical cross-sections for each street type.
   • (c) A table of offsets or setbacks within road reserves for all utility services and street trees.
   • (d) The provision of conduits to service premises fronting on to the roads, created for the more efficient or easy laying, repairing or replacing of water services and gas services.
   • (e) Details of any water, gas, electricity and/or telecommunication conduits as required by the relevant service provider and/or the Responsible Authority.
   • (f) Location and alignment of kerbs, indented parking spaces, footpaths, shared paths, bicycle lanes, bus stops and traffic control devices where appropriate.
   • (g) Fully sealed pavements with kerb and channel.
   • (h) Where appropriate in accordance with the design guidelines, concrete footpaths on both sides of every road with the exception of any access lane and any other circumstances as agreed with the responsible authority.
   • (i) Overland flow paths (100 year ARI) to indicate how excess runoff will safely be conveyed to its destination. Unless otherwise approved, no overland flows will be permitted to be discharged through private property.
   • (j) Drainage outfall system (both interim and ultimate) indicating legal point of discharge and any access requirements for construction and maintenance.
   • (k) Underground drainage network (both major and minor) incorporating, as appropriate:
     • Easement drainage and inlets for all lots which slope to the rear.
     • Connection to the underground drainage network for all lots that slope towards a road.
     • Land required for maintenance access.
     • Watercourses, lakes, wetlands, and silt ponds.
     • Piped elements (for major drains) showing sizing.
   • (l) Cut-off drains to intercept stormwater run-off from adjoining properties. Where cut-off drains are placed on adjoining properties in different ownership than the subdivision developer, written approval to construct the cut-off drain along with the creation of an easement over the drain is to be provided by the adjoining land owner.
   • (m) Temporary turn-around areas within the site for waste collection vehicles (single unit truck) at the temporary dead end of any road.
   • (n) Court heads designed to allow for sufficient road reserve width to accommodate a three point turn for a single unit truck.
   • (o) Provision of street trees within the road reserve.
   • (p) Location and design of street lighting in accordance with the requirements of AS/NZS 1158.1.1:2005, vehicular traffic (category V) lighting, Pedestrian Area (Category P) lighting, Essential Services Commission Public Lighting Code 2005 and AGLE Public Lighting Technical standard. Non standard street lighting will be permitted in accordance with Council's Public Place Lighting Policy.
   • (q) Any water sensitive urban design (WSUD) features to prevent litter, sediments and oils from entering the drainage system in accordance with Best Practice Environmental Management Guidelines (CSIRO 1999).
   • (r) Permanent survey marks, levelled to the Australian Height Datum and coordinated to the Australian Map Grid (MGA Zone 55 GDA94).
   • (s) Details of any cut and fill.
   • (t) Details of any traffic control devices.
   • (u) Provision of a vehicular crossing to each lot and municipal reserve created by the subdivision as follows -
     • Vehicle crossover layout and specifications which must be designed in accordance with the standard drawings.
     • Vehicle crossovers which must be located a minimum 1m from any service facilities.
     • Vehicle crossovers which must be offset a minimum 10m from any side streets from the intersecting kerb alignments.
   • (v) Intersection treatments from an existing carriageway designed and constructed in accordance with AustRoads Guide to Traffic Engineering Practice, Intersections at Grade.
   • (w) Where roundabouts are required, they must be designed -
     • To accommodate an ultra-low floor bus (ULFB, 12.5m) through and turning movement at the intersection of two connector streets.
     • To cater for all service vehicle turning movements at the intersection of two local access streets.
     • With road reserve splays in accordance with Hume City Council's Infrastructure Design Manual.
   • (x) Splays (minimum 3m x 3m) which must be provided at all intersections of the local road network.
   • (y) 'As Constructed' drawings in the form of an electronic pdf file are to be forwarded to Hume City Council.
   • (z) A CD containing the 'As Constructed' drawings in pdf file and AutoCAD Map DWG format (latest version) in GDA94-MGA Zone 55 mapping coordinates in accordance with the DSPEC standard with all additional attribute data for subdivision assets clearly tabulated on digital drawings. All identifiable areas such as pavement surfaces, footpaths and nature strips (where available) to be polygonised and displayed in different drawing layers and forwarded to Hume City Council.
3. Unless agreed to in writing by Hume City Council under section 21(1)(b)(ii) of the Subdivision Act 1988, all works shown on the endorsed construction plans must be constructed and are to be completed to the satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance pursuant to section 21 of the Subdivision Act 1988.

Construction Site Environmental Management Plan

1. Prior to commencement of works, a Construction Site Environmental Management Plan (CSEMP), must be submitted to and approved by the Responsible Authority to address the potential impacts of construction works. The CSEMP must be in generally in accordance with 'doing it right on subdivision (EPA 2004)' and address methods for the protection of environmental significant areas, weed control, rehabilitation of cut surfaces, location of stockpiles, sediment and dust control, the use of hazardous substances and dealing with any safety procedures as advised in the Lane Piper Environmental Audit Report and Certificate of Environmental Audits (Audit Areas A and B) dated December 2006 and September 2009 respectively.
2. The approved CSEMP must be implemented to the satisfaction of the Responsible Authority throughout the construction process.
3. Prior to the commencement of works, a soil and fill recovery plan must be submitted to the satisfaction of the Responsible Authority. This plan must address: the quantity and quality of fill to be generated during construction, the reuse options for fill within the site, the quantity of fill to be removed off site and the location where the fill will be disposed. All fill removed off site must only be taken to permitted/legal sites of disposal to the satisfaction of the responsible authority. When approved this plan will form part of the permit.

1. The permit holder must submit to the Responsible Authority for approval 3 copies of landscape development plans for all open space, streetscape development and landscape elements. When approved, the plans will be endorsed and will then form part of the permit. The development of these areas ust be completed to the satisfaction of the Responsible Authority in accordance with the approved plans prior to the issue of a statement of compliance.
2. Hume City Council must be notified in writing when the landscaping is completed, and an inspection must be undertaken before the maintenance period is to commence. The landscaping must be maintained for a minimum period of two (2) years after completion.
3. Prior to the commencement of the maintenance period, an electronic copy of as-constructed files for all approved landscape development works (including approved irrigation systems) must be submitted to Hume City Council.
4. At the end of the specified maintenance period, the owner must request an end of maintenance inspection by Hume City Council. This inspection will ensure that the works have been maintained to the prescribed standard.
5. Prior to commencement of the maintenance period, a safety and functional audit for the design and construction of all rain gardens, bio retention, sediment collection facilities and wetlands must be submitted to the Responsible Authority, and any rectification works required under that audit must be completed.
6. Before handover to Hume City Council, a functional audit - including infiltration tests - for all Water Sensitive Urban Design elements (including tree pits, rain gardens, bio retention, sediment collection facilities and wetlands) must be submitted to Hume City Council, and any rectification works required under that audit must be completed to the satisfaction of Hume City Council.

Land vested in Hume City Council or other Authorities

1. Land required for community facilities, public open space, reserves or public roads must be shown on any plan of subdivision as a reserve in favour of Hume City Council or another relevant person or body.
2. By no later than four weeks after the date the plan of subdivision for a stage is registered, the following must be sent to Hume City Council:
   • (e) A Certificate of Title for all land vested in Hume City Council on the plan of subdivision.
   • (f) A clear A3-sized photocopy of the Plan of Subdivision approved by the Land Title Office.

1. The owner of the land must enter into an agreement with a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time.
2. The owner of the land must enter into an agreement with a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
3. Before the issue of a Statement of Compliance for the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
   • (a) A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time.
   • (b) A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. Stormwater runoff from the subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the 'Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999'.
2. Prior to the issue of a Statement of Compliance, the owner must enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains and watercourses.
4. At least 21 days prior to the commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
5. All lots must achieve appropriate freeboard in relation to local overland flow paths to Hume City Council's satisfaction.
6. Local drainage must be to the satisfaction of Hume City Council.
7. Engineering plans of the subdivision (in electronic format) must be forwarded to Melbourne Water for comment/approval. A Certified Survey Plan may be required following Melbourne Water's comments on the engineering drawings.
8. Prior to certification, the plan of subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

1. The owner must enter into an agreement with Yarra Valley Water for the provision of water services.
2. The owner must enter into an agreement with Yarra Valley Water for the provision of sewerage services.

1. The plan of subdivision submitted for certification must be referred to SP AusNet (Gas) in accordance with Section 8 of the Subdivision Act 1988.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to Jemena Electricity Networks (Vic) Ltd in accordance with Section 8 of that Act.
2. The owner must enter into an agreement for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision as required by Jemena Electricity Networks (Vic) Ltd. If there are buildings or other installations on the land in the subdivision and are connected to the electricity supply, they must be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.

1. This permit will expire if one of the following circumstances applies:
   • The plan of subdivision is not certified within five years of the date of this permit.
   • The registration of the plan subdivision is not completed within five years of the date the plan of subdivision is certified.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

Subdivision into stages in the General Residential Zone

1. Before a plan of subdivision is certified for any stage, revised plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. These plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plan prepared by Beveridge Williams entitled Framework Plans - Overall Site stamped 'Draft' (drawing reference 0900665_FP01 Version 02 sheet 1 of 1 dated 23 July 2014) as it relates to stages 7, 10 & 11 but further modified to -
   • (a) Remove all lots and roads in stage 11 and include the land in stage 11 as one lot.
   • (b) Provide overland flow paths and connections to Kismet Creek to meet Melbourne Water requirements.
   • (c) Include detailed plans including all bearings, distances, levels, lot sizes, reserves and easements.
   • (d) Include detailed cross-sections for road reserves.
   • (e) Provide stormwater flows and treatment to the satisfaction of Hume City Council.

1. The layout of the staged subdivision as shown on the endorsed plans must not be altered or modified except with the written consent of the Responsible Authority.

The subdivision of the land must proceed in the order of stages shown on the endorsed plans except with the prior written consent of the Responsible Authority**.**

1. The land must be drained to the satisfaction of the Relevant Authority.

1. Prior to the commencement of any road and/or drainage works associated with any stage of the subdivision, or at such other time which is by the Responsible Authority, detailed design plans must be submitted to and approved by the Responsible Authority for construction under the provisions of Part 3 of the Subdivision Act 1988.
2. When approved the construction plans will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be submitted for stamping approval. The plans must include -
   • (a) Engineering plans, standard drawings and specifications in accordance with an Infrastructure Design Manual approved by the Responsible Authority for the proposed works that are to become public assets such as roads, intersections, drains, conduits, bridges, public lighting and the like. This must include plans, drawings and specifications that show the existing embankment can accommodate the creek road crossing and intended traffic generation.
   • (b) Typical cross-sections for each street type.
   • (c) A table of offsets or setbacks within road reserves for all utility services and street trees.
   • (d) The provision of conduits to service premises fronting on to the roads, created for the more efficient or easy laying, repairing or replacing of water services and gas services.
   • (e) Details of any water, gas, electricity and/or telecommunication conduits as required by the relevant service provider and/or the Responsible Authority.
   • (f) Location and alignment of kerbs, indented parking spaces, footpaths, shared paths, bicycle lanes, bus stops and traffic control devices where appropriate.
   • (g) Fully sealed pavements with kerb and channel.
   • (h) Where appropriate in accordance with the design guidelines, concrete footpaths on both sides of every road with the exception of any access lane and any other circumstances as agreed with the responsible authority.
   • (i) Overland flow paths (100 year ARI) to indicate how excess runoff will safely be conveyed to its destination. Unless otherwise approved, no overland flows will be permitted to be discharged through private property.
   • (j) Drainage outfall system (both interim and ultimate) indicating legal point of discharge and any access requirements for construction and maintenance.
   • (k) Underground drainage network (both major and minor) incorporating, as appropriate:
     • Easement drainage and inlets for all lots which slope to the rear.
     • Connection to the underground drainage network for all lots that slope towards a road.
     • Land required for maintenance access.
     • Watercourses, lakes, wetlands, and silt ponds.
     • Piped elements (for major drains) showing sizing.
   • (l) Cut-off drains to intercept stormwater run-off from adjoining properties. Where cut-off drains are placed on adjoining properties in different ownership than the subdivision developer, written approval to construct the cut-off drain along with the creation of an easement over the drain is to be provided by the adjoining land owner.
   • (m) Temporary turn-around areas within the site for waste collection vehicles (single unit truck) at the temporary dead end of any road.
   • (n) Court heads designed to allow for sufficient road reserve width to accommodate a three point turn for a single unit truck.
   • (o) Provision of street trees within the road reserve.
   • (p) Location and design of street lighting in accordance with the requirements of AS/NZS 1158.1.1:2005, vehicular traffic (category V) lighting, Pedestrian Area (Category P) lighting, Essential Services Commission Public Lighting Code 2005 and AGLE Public Lighting Technical standard. Non standard street lighting will be permitted in accordance with Council's Public Place Lighting Policy.
   • (q) Any water sensitive urban design (WSUD) features to prevent litter, sediments and oils from entering the drainage system in accordance with Best Practice Environmental Management Guidelines (CSIRO 1999).
   • (r) Permanent survey marks, levelled to the Australian Height Datum and coordinated to the Australian Map Grid (MGA Zone 55 GDA94).
   • (s) Details of any cut and fill.
   • (t) Details of any traffic control devices.
   • (u) Provision of a vehicular crossing to each lot and municipal reserve created by the subdivision as follows -
     • Vehicle crossover layout and specifications which must be designed in accordance with the standard drawings.
     • Cehicle crossovers which must be located a minimum 1m from any service facilities.
     • Vehicle crossovers which must be offset a minimum 10m from any side streets from the intersecting kerb alignments.
   • (v) Intersection treatments from an existing carriageway designed and constructed in accordance with AustRoads Guide to Traffic Engineering Practice, Intersections at Grade.
   • (w) Where roundabouts are required, they must be designed -
     • To accommodate an ultra-low floor bus (ULFB, 12.5m) through and turning movement at the intersection of two connector streets.
     • To cater for all service vehicle turning movements at the intersection of two local access streets.
     • With road reserve splays in accordance with Hume City Council's Infrastructure Design Manual.
   • (x) Splays (minimum 3m x 3m) which must be provided at all intersections of the local road network.
   • (y) 'As Constructed' drawings in the form of an electronic pdf file are to be forwarded to Hume City Council.
   • (z) A CD containing the 'As Constructed' drawings in pdf file and AutoCAD Map DWG format (latest version) in GDA94-MGA Zone 55 mapping coordinates in accordance with the DSPEC standard with all additional attribute data for subdivision assets clearly tabulated on digital drawings. All identifiable areas such as pavement surfaces, footpaths and nature strips (where available) to be polygonised and displayed in different drawing layers and forwarded to Hume City Council.
3. Unless agreed to in writing by Hume City Council under section 21(1)(b)(ii) of the Subdivision Act 1988, all works shown on the endorsed construction plans must be constructed and are to be completed to the satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance pursuant to section 21 of the Subdivision Act 1988 for the relevant stage.

Construction Site Environmental Management Plan

1. Prior to commencement of works, a Construction Site Environmental Management Plan (CSEMP), must be submitted to and approved by the Responsible Authority to address the potential impacts of construction works. The CSEMP must be in generally in accordance with 'doing it right on subdivision (EPA 2004)' and address methods for the protection of environmental significant areas, weed control, rehabilitation of cut surfaces, location of stockpiles, sediment and dust control, the use of hazardous substances and dealing with any safety procedures as advised in the Lane Piper Environmental Audit Report and Certificate of Environmental Audits (Audit Areas A and B) dated December 2006 and September 2009 respectively.
2. The approved CSEMP must be implemented to the satisfaction of the Responsible Authority throughout the construction process.
3. Prior to the commencement of works, a soil and fill recovery plan must be submitted to the satisfaction of the Responsible Authority. This plan must address: the quantity and quality of fill to be generated during construction, the reuse options for fill within the site, the quantity of fill to be removed off site and the location where the fill will be disposed. All fill removed off site must only be taken to permitted/legal sites of disposal to the satisfaction of the responsible authority. When approved this plan will form part of the permit.

1. The permit holder must submit to the Responsible Authority for approval 3 copies of landscape development plans for all open space, streetscape development and landscape elements. When approved, the plans will be endorsed and will then form part of the permit. The development of these areas, including fencing of all reserves, must be completed to the satisfaction of the Responsible Authority in accordance with the approved plans prior to the issue of a statement of compliance.
2. Hume City Council must be notified in writing when the landscaping is completed, and an inspection must be undertaken before the maintenance period is to commence. The landscaping must be maintained for a minimum period of two (2) years after completion.
3. Prior to the commencement of the maintenance period, an electronic copy of as-constructed files for all approved landscape development works (including approved irrigation systems) must be submitted to Hume City Council.
4. At the end of the specified maintenance period, the owner must request an end of maintenance inspection by Hume City Council. This inspection will ensure that the works have been maintained to the prescribed.
5. Prior to commencement of the maintenance period, a safety and functional audit for the design and construction of all rain gardens, bio retention, sediment collection facilities and wetlands must be submitted to the Responsible Authority, and any rectification works required under that audit must be completed.
6. Before handover to Hume City Council, a functional audit - including infiltration tests - for all Water Sensitive Urban Design elements (including tree pits, rain gardens, bio retention, sediment collection facilities and wetlands) must be submitted to Hume City Council, and any rectification works required under that audit must be completed to the satisfaction of Hume City Council.

Land vested in Hume City Council or other Authorities

1. Land required for community facilities, public open space, reserves or public roads must be shown on a plan of subdivision as a reserve in favour of Hume City Council or another relevant person or body.
2. By no later than four weeks after the date the plan of subdivision is registered, the following must be sent to Hume City Council:
   • (g) A Certificate of Title for all land vested in Hume City Council on the plan of subdivision.
   • (h) A clear A3-sized photocopy of the Plan of Subdivision approved by the Land Title Office.

1. The owner of the land must enter into an agreement with a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time.
2. The owner of the land must enter into an agreement with a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
3. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
   • (c) A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time.
   • (d) A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. Stormwater runoff from the subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the 'Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999'.
2. Prior to the issue of a Statement of Compliance, the owner must enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains and watercourses.
4. At least 21 days prior to the commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
5. All lots must achieve appropriate freeboard in relation to local overland flow paths to Hume City Council's satisfaction.
6. Local drainage must be to the satisfaction of Hume City Council.
7. Engineering plans of the subdivision (in electronic format) must be forwarded to Melbourne Water for comment/approval. A Certified Survey Plan may be required following Melbourne Water's comments on the engineering drawings.
8. Prior to certification, the plan of subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

1. The owner must enter into an agreement with Yarra Valley Water for the provision of water services.
2. The owner must enter into an agreement with Yarra Valley Water for the provision of sewerage services.

1. The plan of subdivision submitted for certification must be referred to SP AusNet (Gas) in accordance with Section 8 of the Subdivision Act 1988.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to Jemena Electricity Networks (Vic) Ltd in accordance with Section 8 of that Act.
2. The owner must enter into an agreement for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision as required by Jemena Electricity Networks (Vic) Ltd. If there are buildings or other installations on the land in the subdivision and are connected to the electricity supply, they must be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.

1. This permit will expire if one of the following circumstances applies:
   • (a) The plan of subdivision for the first stage is not certified within five years of the date of this permit.
   • (b) The plan of subdivision for the last stage of the subdivision is not certified within five years of the date the plan of subdivision for the first stage is certified.
   • (c) The registration of the last stage of the subdivision is not completed within five years of the certification of that plan of subdivision.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

Drawing no. L01 Rev C (Surfaces and finishes) dated 26 November 2014

1. Add the following notation for the two areas where erosion stabilisation works are proposed:

The Council will be given finished levels in bank stabilisation areas when gully erosion stabilisation works are completed. Within two weeks of providing finished levels, the Council will be given details on how the path is to be constructed across the bank stabilisation areas.

1. Amend the drawing to show the full extent of the 'existing rock outcrop' and proposed landscape treatment to provide ease of management and maintenance.
2. Show location(s) of vehicle access points for maintenance.
3. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L02 Rev C (Surfaces and finishes) dated 26 November 2014

1. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Add the following notation for the areas where erosion stabilisation works are proposed:

The owner will give the Council finished levels in bank stabilisation areas when gully erosion stabilisation works are completed. Within two weeks of providing finished levels, the owner will give the Council details on how the path is to be constructed across the bank stabilisation areas.

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Show location(s) of vehicle access points for maintenance.
2. Add the following notation:

Tree guards to be provided to all proposed canopy trees when planted to the satisfaction of the Council

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L03 Rev B (Surfaces and finishes) dated 26 November 2014

1. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Add the following notation for each existing tree to be retained and protected:

Tree protection zones to be provided in accordance with Australian Standard AS4970-2009 - Protection of trees on development sites

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Show location(s) of vehicle access points for maintenance.
2. Add the following notation:

Tree guards to be provided to all proposed canopy trees when planted to the satisfaction of the Council

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L04 Rev C (Planting) dated 26 November 2014

1. Amend the 'Plant Schedule - Shrubs for Bank Stabilisation' to add a column with details of 'Density' and 'Quantity' and 'Area' or 'Areas' to which the schedule applies. The 'Density' must not be less than 250 per hectare.
2. Amend this drawing to show any area to which 'Plant Schedule - Shrubs for Bank Stabilisation' applies. The shrubs must be shown as planted in mulched beds and concentrated in eroded areas as shown in the geotechnical reports.
3. Add the following notation:

Tree guards to be provided to all proposed canopy trees when planted to the satisfaction of the Council

Bank stabilisation planting will be carried out after soil amelioration in accordance with geotechnical advice is completed

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L05 Rev B (Planting) dated 26 November 2014

1. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Amend this drawing to show any area to which 'Plant Schedule - Shrubs for Bank Stabilisation' applies. The shrubs must be shown as planted in mulched beds and concentrated in eroded areas as shown in the geotechnical reports.
2. Add the following notation:

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

Tree guards to be provided to all proposed canopy trees when planted to the satisfaction of the Council

Bank stabilisation planting will be carried out after soil amelioration in accordance with geotechnical advice is completed

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L06 Rev A (Planting) dated 26 November 2014

1. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Add the following notation for each existing tree to be retained and protected:

Tree protection zones to be provided in accordance with Australian Standard AS4970-2009 - Protection of trees on development sites

1. Amend this drawing to show any area to which 'Plant Schedule - Shrubs for Bank Stabilisation' applies. The shrubs must be shown as planted in mulched beds and concentrated in eroded areas as shown in the geotechnical reports.
2. Add the following notation:

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

Tree guards to be provided to all proposed canopy trees when planted to the satisfaction of the Council

Bank stabilisation planting will be carried out after soil amelioration in accordance with geotechnical advice is completed

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L07 Rev B (Construction details) dated 26 November 2014

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L08 Rev B (Construction details) dated 26 November 2014

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L09 Rev B (Landscape sections) dated 26 November 2014

1. Amend this drawing to reflect the modifications to drawing nos. L01 to L06.
2. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Add the following notation for the area of mulch:

Mulch areas to be planted with trees, shrubs and ground covers in accordance with the planting plan and schedule

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L10 Rev B (Landscape sections) dated 26 November 2014

1. Amend this drawing to reflect the modifications to drawing nos. L01 to L06.
2. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Add the following notation for the area of mulch:

Mulch areas to be planted with trees, shrubs and ground covers in accordance with the planting plan and schedule

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L11 Rev B (Landscape sections) dated 26 November 2014

1. Amend this drawing to reflect the modifications to drawing nos. L01 to L06.
2. Add the following notation:

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L12 Rev A (Landscape sections) dated 26 November 2014

1. Amend this drawing to reflect modifications 3 & 5 in this Appendix.
2. Add the following notation for the paths adjoining the two proposed wetland areas:

Paths to be separated from wetlands, for safety reasons, by a mown berm to the satisfaction of the Council

1. Add the following notation for the area of mulch:

Mulch areas to be planted with trees, shrubs and ground covers in accordance with the planting plan and schedule

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

Drawing no. L13 Rev A (Landscape sections) dated 26 November 2014

1. Amend this drawing to reflect modifications 3 & 5 in this Appendix.
2. Add the following notation for the area of mulch:

Mulch areas to be planted with trees, shrubs and ground covers in accordance with the planting plan and schedule

All parts of batters with grades of 1:4 or greater are to be planted with Type B plants and Shrubs in accordance with the planting schedule

1. Omit all revision details ie the red 'cloud' area and the red revision notes.

[1] We have considered the submissions of both parties, all the written and oral evidence, all materials filed before the hearing, and the exhibits tendered at the hearing. We do not recite or refer to all of the contents of those documents in these reasons.

[2] Brief details of the estate and the applications are included in the Information section at the start of these reasons.

[4] The six other documents are a Road Hierarchy Plan (version 4 dated 29 April 2014) (1 sheet) and Street Sections (version 4 dated 29 April 2014) (1 sheet) both prepared by Beveridge Williams; a Surface Water Planning Strategy dated 11 August 2011 prepared by Engeny Pty Ltd (49 pages); a MUSIC Modelling Report dated January 2013 prepared by Engeny Pty Ltd (21 pages); a Consolidated Ecological Report dated February 2014 prepared by Brett Lane & Associates Pty Ltd (72 pages); a Native Vegetation Mapping & Draft Landscape Concept Plan (version 4 dated 30 April 2014) prepared by Beveridge Williams (1 sheet); and a Bushfire Attack Level Assessment dated July 2014 prepared by Brett Lane & Associates Pty Ltd (13 pages).

[5] Glenavon Pastoral (Vic) Pty Ltd v Golden Plains SC [2005] VCAT 1095 (Morris P) at [12].

[6] Hume Planning Scheme cl 43.04-3 schd 7 cl 2.0.

[7] Hume Planning Scheme cl 43.04-3 schd 7 cl 2.0.

[8] Biosis Research Pty Ltd, Additional Archaeological Survey of Canterbury Hills Estate, Sunbury, Research Project no. 3772 (February 2004) (Exhibit R4).

[9] A DP is not a 'statutory authorisation' - see AH Act s 50.

[10] Biosis Research, Additional archaeological survey of Canterbury Hills Estate, Sunbury, Victoria (February 2004) (Exhibit R4).

[11] Aboriginal Heritage Regulations 2007 r 77.

[12] Mr Chiappi submitted that Canterbury Hill had commissioned Jem Archaeology to prepare the voluntary and preparation of the CHMP was expected to be finalised in the first half of 2015.

[14] Hume Planning Scheme cl 15.03-2.

[15] Canterbury Hills tendered what it described as a consent dated 9 April 2005 given by Mr Alan Wandin on behalf of the Wurundjeri to the design of the estate in the vicinity of Sunbury Ring 4. In general layout, the design is generally consistent with the design in the Framework Plan. However, the consent and the Framework Plan are inconsistent with the 2004 survey because there is no minimum buffer of 50 m. Mr Chiappi explained the design incorporates a direct connection to Billy Goat Creek reserve (to the south) but closes the site with lots on one side, both consistent with what he submitted were the Wurundjeri's requirements.

[16] We acknowledge that two sites in stage 8 appear to be close to stage 6.

[17] This is apparently based on the Biodiversity Precinct Structure Planning Kit published by the former Department of Sustainability and Environment (DSE).

[18] Hume Planning Scheme cl 43.04-3 schd 7 cl 2.0.

[19] Hume Planning Scheme cl 43.04 'Purpose' & schd 7 cl 2.0 first dot point.

[20] One of the purposes of the DPO is to implement the current planning policy framework (see Hume Planning Scheme cl 43.04 'Purposes').

[21] Statement of evidence, Mr Alan Brennan (November 2014), table 2 of the report prepared by Brett Lane & Associates and attached to Mr Brennan's statement and entitled Biodiversity Assessment of Stages 2C, 3, 5, 6, 7, 10, 11 & Review of Development Plan dated November 2014.

[22] This is considered further in our assessment of the planning permit applications for matter P424/2013: Subdivision of part of the land (known as stages 7, 10 & 11) into a total of 94 lots (permit application no. P14424).

[23] Hume Planning Scheme cl 43.04-3 schd 7 cl 2.0.

[24] The correspondence, dated 23 September 2014, is attached to Mr Prout's statement of evidence (Exhibit A4) as Appendix B.

[25] Hume Planning Scheme cl 43.04-3 schd 7 cl 2.0.

[26] These local parks comprise 0.68, 0.25 and 0.6 hectares each.

[28] Statement of evidence, Mr Marco Negri, dated June 2014, p 22-24.

[29] Hume Planning Scheme cl 43.04-1.

[30] The clearances require 50 m separation within Bushfire Prone Areas not affected by the Bushfire Management Overlay (BMO).

[31] The Council and Canterbury Hills agreed that no landscape plan would be needed before issue of a statement of compliance for stage 23 but would be needed before issue of a statement of compliance for stage 24.

[32] Condition 10(b) is not, on its terms, restricted to landscaping of stream reserves but to landscaping of 'all development' in all stages west of stage 2C. However, the parties confined the dispute to landscaping of the stream reserves west of stage 2C and so we have only addressed the confined issue.

[33] For completeness, it follows that Canterbury Hills did not seek approval of any plan under condition 10(a) or satisfaction under condition 10(c) of the Council as to the commencement of works shown on the plans endorsed under condition 10(b).