S 36(1) and (1AA) Subdivision Act 1988.

S 51(1)(a) Victorian Civil and Administrative Tribunal Act 1998.

Medium Neutral Citation [2003] VCAT 435

Lot 2 on Plan of Subdivision No. 86687 being the land in Certificate of Title Volume 8814 Folio 115.

Rectangle of land measuring 142.87m or thereabouts east to west and 59.74m or thereabouts north to south with an area of 8500m2 and access from Frome Street.

A. This application for review of the failure of the Responsible Authority to grant a permit is granted and a permit is granted accordingly for the subdivision of the land into 13 allotments, the relocation of an easement and the removal of vegetation in accordance with endorsed plans hereafter provided for and subject to the following conditions:-

1. Prior to the certification of the plan of subdivision amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans are to be drawn to scale with dimensions and six (6) copies are to be provided. The plans are to be in accordance with the plans considered by the Victorian Civil and Administrative Tribunal in its determination of Application for Review No. P2357/2002 but modified to show details of the construction of Frome Street from the northern boundary of the land to Lincoln Road.

2. The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3. Frome Street and the extension of Frome Street must be constructed in accordance with plans and specifications to the satisfaction of the Responsible Authority.

4. Each lot shown on the endorsed plans must be drained to the legal point of discharge, to the satisfaction of the Responsible Authority.

5. The owner must pay to the Responsible Authority a sum equivalent to 5% of the site value of all land in the subdivision. This payment must be made prior to the issue of a Statement of Compliance and may be revalued in accordance with Section 19(5) of the Subdivision Act 1988.

6. Prior to the issue of a Statement of Compliance, vehicle access to serve each lot in the subdivision must be constructed and appropriately drained to the satisfaction of the Responsible Authority.

7. Prior to the issue of a Statement of Compliance, or at such later date as the Responsible Authority may approve in writing, a landscape plan incorporating:

a) a survey of all existing vegetation and landscape features;

b) the area or areas set aside for landscaping; and

c) a schedule of all proposed street trees, which will include the location and size at maturity of the trees, the botanical names of such trees and the location of all areas to be covered by grass, lawn or other surface material as specified.

must be submitted to and approved by the Responsible Authority. Once endorsed, the landscape plan will form part of this permit. The landscape plan need not indicate retention of existing rows of Monterey Cypress or elder trees.

8. Prior to the issue of a Statement of Compliance, the owner must complete all landscaping works as approved by the Responsible Authority within the road reserves to the satisfaction of the Responsible Authority.

9. Prior to the issue of a Statements of Compliance, a landscape management plan must be prepared by a qualified landscape architect to the satisfaction of the Responsible Authority. The landscape management plan must be submitted to and approved to the satisfaction of the Responsible Authority. The landscape management plan must include:-

b) details of care and maintenance required for existing vegetation and the newly planted (or proposed) vegetation depicted on the landscape plan;

c) detail of protective barrier fencing and care and maintenance required for vegetation during construction of any building(s) or works on the subdivided lots; and

d) tree protection envelopes on lots 1 and 2 to ensure the protection of trees on adjoining land.

Once approved by the Responsible Authority, the landscape management plan will be endorsed. The endorsed landscape management plan will form part of this permit. It is thereafter to be implemented and maintained but the period of maintenance is not for more than two (2) years from registration of the plan of subdivision.

10. Prior to the issue of a Statement of Compliance, the owner must enter into an agreement under section 173 of the Planning and Environment Act 1987 with the Responsible Authority which provides for:

a) ongoing compliance with the landscape management plan for two (2) years from the registration of the plan of subdivision;

b) payment by the owner of the costs of the Responsible Authority incurred in association with the preparation, checking, registration and enforcement of the section 173 agreement.

12. Prior to the commencement of any works associated with the subdivision, detailed construction plans must be submitted to and approved by the Responsible Authority. All works constructed or carried out must be in accordance with those plans.

13. Prior to the commencement of any works required by this permit, protective barrier fencing must be constructed to protect existing trees shown on the endorsed plans as being retained on the land, to the satisfaction of the Responsible Authority. The protective barrier fencing must remain in place until drainage and road works are completed and all services are connected, to the satisfaction of the Responsible Authority.

14. The owner must pay to Council prior to the issue of a statement of compliance:

a) A payment for supervision of works being 2.5% of the value of all works shown on the approved engineering construction plans.

b) A refundable maintenance bond being 5% of the value of all works shown on the approved engineering construction plans to be refunded three (3) months from the issue of a Statement of Compliance subject to the satisfaction completion of the works.

a) the subdivision plan is not certified within twelve (12) months of the date of issue of this permit; and

b) Statement of Compliance is not obtained within five (5) years of the certification of the plan,

or any extension of such periods the Responsible Authority may allow, in writing, upon application made before or within three months after such expiry.

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

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

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

19. Pollution and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water's drains or waterways during the construction of subdivision works.

20. Prior to a Statement of Compliance being issued by the Responsible Authority, the owner must provide to the satisfaction of Telstra all works for provision of Telecommunication Services to each lot created in the subdivision.

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

22. The plan submitted for certification must show details of easements and/or RCM/RIM sites which may be required by Telstra.

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

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

25. Easements in favour of Multinet (Assets) Pty Ltd must be created on the plan to the satisfaction of Multinet Gas.

26. The plan of subdivision submitted for certification must be referred to Multinet Gas in accordance with Section 8 of the Subdivision Act 1988.

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

* Enter into an agreement with TXU Electricity Ltd for the re-arrangement of the existing electricity supply system.

* Enter into an agreement with TXU Electricity Ltd for

re-arrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by TXU Electricity Ltd.

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

* Obtain for the use of TXU Electricity Ltd any other easement required to service the lots.

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

* Set aside on the plan of subdivision Reserves for the use of TXU Electricity Ltd for electric substations if required by TXU Electricity Ltd.

* Provide survey plans for any electric substations required by TXU Electricity Ltd and for associated power lines and cables and executes leases for a period of 30 years, at a nominal rental with a right to extend the lease for a further 30 years.

Note: TXU Electricity Ltd requires that such leases are to be noted on the title by way of a caveat or a notification under Section 88(2) of the Transfer of Land Act prior to the registration of the plan of subdivision.

* Provide to TXU Electricity Ltd a copy of the plan of subdivision submitted for certification that shows any amendments that have been required.

B. The Responsible Authority is directed pursuant to s 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with the above order.

Ms Adeline Lane, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority. She presented written and oral submissions.

Ms Sarah Porritt, barrister, appeared on the instructions of the firm of Patrick Hartl & Associates, solicitors for Clarcor Pty Ltd, the applicant for review. She presented written and oral submissions and called three expert witnesses to give evidence. They were Mr Andrew O'Brien, traffic engineer, Mr Andrew Clarke, town planner and Mr Craig Eldridge, landscape architect. Each of these witnesses presented a written report in addition to giving oral evidence.

Mr Jorgen Vagnkjaer and Mr Barry Smith, objectors and neighbours residing on land adjoining parts of the review site, appeared in person. They made oral submissions although Mr Smith also referred to his statement of grounds and a letter attached thereto.

Various plans, photographs and documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

13 lot subdivision together with variation of easement and removal of trees.

Residential 1 Zone and in a Significant Landscape Overlay Area under the Maroondah Planning Scheme.

This is a review of a failure under s 79 PE Act. At the time the review was commenced the Responsible Authority had not determined its attitude to the proposal. However, on the 6 January 2003 it resolved that the application should be refused on the following grounds:-

(1) The proposed subdivision does not adequately respond to and comply with the policies for residential development contained within the Local Planning Policy Framework of the Maroondah Planning Scheme.

(2) The proposed lot sizes are not responsive to, or in keeping with, the character of the neighbourhood.

(3) Access to the subject land across a carriageway easement is not appropriate for the number of lots proposed to be created.

1. This review concerns a substantial rectangular piece of land of 8500m2 near Lincoln Road in Croydon. The land has an appearance on the plans of being almost land-locked. There is a carriageway connection between the eastern end of the northern boundary to Lincoln Road by means of Frome Street. There is a formed carriageway along Frome Street, although it is unsealed and distinctly informal in appearance. The area known as Frome Street, through which this carriageway runs, supports vegetation including overhanging trees. The front garden of Mr Vagnkjaer has encroached onto this area. His property is located on the east side of Frome Street just north of the review site. Mr Smith also resides on land that adjoins the review site, and Frome Street. His property runs from the land through to Lincoln Road and has Frome Street forming its eastern boundary.

2. The review site itself is the site of a substantial house set in very substantial grounds with some park-like areas, some screening vegetation, open grassy areas, tennis court, swimming pool and some outbuildings. There is a driveway on this land from the house, set toward the western end and toward the south side of the site. The driveway runs from the house east through approximately the middle of the site until it curves to the north to connect with the carriageway in Frome Street.

3. The proposal is to subdivide the land into thirteen residential allotments suitable for detached houses. These proposed allotments are generally approximately rectangular in shape and generally having areas ranging from just over 500m2 to something under 550m2. Vehicle access to them is proposed to be by an extension of Frome Street that would follow, in general terms, the path of the existing driveway from east to west through middle of the land. However, it would continue further to the west, so as to serve all allotments, and would have a turning bowl at the end. The allotments toward the middle of the land would be more truly rectangular or square in shape whereas those at either end are modified to accommodate the bowl at one end and the curve to meet Frome Street at the other end. Lot 1, at the eastern end of the land, is more triangular than rectangular in shape and would have an area of 632m2.

4. There is an existing easement in the vicinity of the eastern boundary of the site. It is proposed to replace it with an easement running diagonally from the south east corner of the land between Lots 1 and 2 to connect with the proposed roadway extension. That feature of the proposal is uncontentious. Nobody opposes that aspect.

5. Planning permission is required for the subdivision and for removal of some trees. The proposed design of the driveway would have narrow and wide portions and is designed to accommodate the retention of some existing trees on the site. However, it is also proposed to remove some trees on the northern and eastern boundary and others scattered on the site. Planning permission is required for such removal.

6. The Responsible Authority is not opposed to the whole idea of a subdivision of this land. However, it considers that this proposed subdivision is inappropriate. It would favour an eight-lot subdivision with the access road to be along the northern boundary of the site and with eight long narrow allotments fronting its southern margin. The difference between the Responsible Authority and the application, in terms of "yield", is five allotments. The Responsible Authority opposed the present scheme, at considerable length, but on bases that relate to a desire to retain canopy trees and to have the long thin allotments referred to above having areas in the order of 800 to 1000 square metres. It argues that such an arrangement is in keeping with planning scheme policies that seek to retain and promote canopy trees as part of the landscape and produces a subdivision that is said to be consistent with and in keeping the character of the neighbourhood in terms of the size and layout of existing subdivisions.

7. At the end of the hearing I gave extensive oral reasons as to why I did not uphold the views of the Responsible Authority on these issues. I have mentioned that the case put on behalf of the Responsible Authority was lengthy. It contained a lot of detail and various arguments about policy considerations and suggested ramifications thereof. In the oral reasons I did not deal with every minor point or argument raised. Some of them were really debating points and some were irrelevant. I dealt with all the substantial arguments in the oral reasons, having refined what the real issues of concern to the Responsible Authority were in a discussion with Ms Lane (who appeared for the Responsible Authority) toward the end of the first day of hearing. I have considered, and indeed reconsidered, everything that was put on behalf of the Responsible Authority in relation to policy considerations. The submissions were put in a cumulative and somewhat repetitive way making it difficult to deal with every issue on a point-by-point basis having regard elements related to one topic and another being scattered around. None of these matters lead me to a conclusion that this proposed subdivision should be refused.

8. I observed that it is not a sophisticated plan, but it is workable and there is not, in my opinion, any proper basis, having regard to town planning policies and principles, for refusing it. It is not a question of whether this proposal is the finest that could be devised. Rather, it is a matter as to whether this, having regard to the policies and planning considerations, should be regarded as acceptable. In my opinion it must be so regarded.

9. What I have said in that last paragraph is true of the policy considerations referred to by the Responsible Authority, and to the proposal as a whole in relation to all the objections that have been raised to it.

10. I considered that it is important to be satisfied that there is viable legal access to the land, including access for vehicles. Ms Porritt indicated that she had what she considers to be a strong arguable case for suggesting that Frome Street, is and has long since been, a public highway. On that basis there would be no issue as to access. That suggestion comes as something of an unpleasant surprise to Mr Vagnkjaer inasmuch as he has believed that the Frome Street land is owned by him, together with his adjoining residential premises, and that there is only a right of way, indeed a right of carriageway, over Frome Street in favour of the review site. Although there may be controversy (which may or may not have to be fought out in court) as to whether Frome Street is a public highway or not, it is common ground that a carriageway easement in favour of the review site does exist over it. I do not need to determine whether Frome Street is a public highway. All I need to be satisfied of is that there is adequate and suitable legal access for the review site. I am satisfied as to this because, even if it is not a public highway, then there is a suitable carriageway easement that can be relied upon.

11. The objectors really oppose any subdivision of the land. They object to the increased traffic and noise that they anticipate would result from there being 13 houses in place of the present one. There might also be dust, if the carriageway in Frome Street is not sealed. Traffic, including increased traffic volumes and alleged potential traffic problems in Lincoln Road and beyond were primary amongst the amenity arguments raised by the objectors. I note they were not raised or relied upon by the Responsible Authority. That is because they were not sustainable, as I stated my oral reasons, and the Responsible Authority did not regard them as sustainable.

12. The objectors, whilst no doubt adopting the arguments advanced by the Responsible Authority insofar as they would support their case, really regard the Council's eight lot suggestion as a fall back position that they would be disappointed to have to accept.

13. For the reasons given orally in some detail, and briefly mentioned above, I formed the view that the permit sought should be granted. The oral reasons have been recorded, and can be retrieved if necessary. At the end of her written submissions Ms Porritt applied for written reasons, but after discussion in the course of the hearing she specifically withdrew that request. In those circumstances I do not propose to go through the details of the reasoning that has led me to the above conclusion.

14. Ms Porritt raised another, and somewhat unusual point at the end of her case. Her client proposes a subdivision whereby the households ultimately contemplated for the 13 sites will rely upon Frome Street for access. However, they will also rely upon it for the provision of services such as sewerage, water, gas, telephone and the like. Such services already exist through that area to serve the existing house. If Frome Street is a public highway no problem is likely to arise. Her apprehension is that, if that land is not a public highway, and if Mr Vagnkjaer has ownership rights whereby he might seek to prevent the provision of those services through Frome Street, her client may be in a position of being unable to service the land, except as to vehicle and pedestrian access. She has therefore asked me to make a statement in accordance with s 36 of the Subdivision Act 1988 (SD Act) which could be relied upon if necessary, at a later stage, for an application to the Tribunal for leave to compulsorily acquire such rights. Section 36 SD Act provides, amongst other things, that if, when considering an application for a permit the council states in writing that it considers that the economic and efficient subdivision or servicing of land covered by the permit requires the owner of land to acquire an easement over other land in the vicinity and that the acquisition will not result in an unreasonable loss of amenity in the area affected by the acquisition, then the owner may apply to the Tribunal for leave to acquire the easement compulsorily. The section contains other provisions, including in relation to compensation.

15. It can be seen that there is an interrelationship between the Council acting under s 36 SD Act and its acting as a responsible authority under the PE Act. This power to make a statement under s 36 SD Act is a subsidiary matter, where necessary, in relation to the consideration by the Responsible Authority of an application for a planning permit for the subdivision. In considering this review proceeding I am acting as the Tribunal and have the powers and functions provided to the Tribunal by and through the PE Act and the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Reference is made to s 51(1)(a) of the VCAT Act which provides that, in exercising its review jurisdiction in respect of a decision, the Tribunal has all the functions of the decision maker. The Responsible Authority is the decision maker. One of its functions, where appropriate, is to make a statement under s 36 SD Act. It is on that basis that it is put to me that I too have that power and function.

16. I think that is correct. I also think that the provision of services through Frome Street, similar to those that already exist in relation to the existing house (although not necessarily identical to them) would not result in an unreasonable loss of amenity to the area affected. In coming to that assessment I have considered both amenity and engineering aspects. I note that, by s 36(1AA), I am not required to notify anyone affected or to hear objections although, if an application for leave under s 36 is subsequently made, such objections may be raised before the Tribunal at that stage. On this basis I state that, in considering this application for a permit for this land, I consider that the economical and efficient subdivision and servicing of the land covered by the permit requires the owner of the land to acquire an easement over other land in the vicinity and that the acquisition of such easement will not result in an unreasonable loss of amenity in the area affected by the acquisition.

17. A draft set of conditions was tendered on behalf of the Responsible Authority on a "Without Prejudice" basis. By "Without Prejudice" I mean without prejudice to its case suggesting that no permit should be granted. This set of draft conditions was the basis of submissions in relation to conditions made at the conclusion of the hearing. My decisions in relation to conditions are reflected in the orders I have made above. However, the draft included some so-called "permit notes" reading:-

If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Mark Arnold on telephone 9235 2229, quoting Melbourne Water's reference 80255.

Following an application to Telstra for provision of cable reticulation the owner will be advised of the details of easements and/or RCM/RIM sites which will be required by Telstra.

18. These suggested notes are not conditions and not part of my order. If they are included in the permit document that will have been done as a convenient means of conveying information, but they are not part of the permit granted.