The decision of the responsible authority in relation to planning permit application no. M/2007/273 is varied as follows:

1. Paragraph (a) of condition 1 is deleted and the subsequent paragraphs redesignated.
2. Condition 6 is amended by adding to its end the following additional dot points:
   • Prior to the construction of any additional driveways or the extension of any driveways within any of lots 2, 3 and 4 (in addition to the driveways shown on the endorsed plans under permit no M/2007/273, plans of the proposed additional driveways or extensions to the driveways must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:

1. Clear identification and highlighting of all trees to be removed and the extent of other native vegetation to be removed for the construction of driveways and installation of services to the relevant lot. 2. The alignment of all trenching for installation and construction of services including electricity, telecommunications, water, sewerage, drainage and gas.

1. The location and extent of excavation, fill, batters and any retaining walls to be used in the construction of any driveways.

1. Definition of a "Construction Zone" within the relevant lot where all works, machinery, spoil materials and vehicles shall be contained within at all times during the construction of driveways and installation of services to the lots.
   • The additional driveway or extensions to the driveway must be constructed in accordance with the approved plans to the satisfaction of the Responsible Authority.
   • During construction of an additional driveway or extensions to a driveway and installation of services to the relevant lot all works, machinery, spoil materials and vehicles shall be contained within at all times within the construction zone shown on the approved plan.
2. Condition 16 is deleted.

Mr Simon Merrigan of Millar Merrigan, Land Development Consultants

Mr Adrian Finanzio of Counsel instructed by Maddocks, Lawyers

1. This application[1] seeks a review of conditions in a permit no. M/2007/273 (the permit) issued by Maroondah City Council's (council) on 9 November 2007 to subdivide the land at 74-76 Richardson Road, Croydon North into 4 lots and for the removal of vegetation. The conditions appealed against are (grouped for convenience of subject matter):
   • Conditions 1(e) and 10
   • Conditions 3 and 5
   • Conditions 1(a) and 6
   • Conditions 1(b), (c), (d), (f), and 8
   • Condition 1(g)
   • Condition 16
2. The application for review was lodged with the Tribunal on 19 November 2008.

1. Council and the parties' representatives tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing, are attached to the Tribunal's file. No expert evidence was called.
2. The hearing occupied 3 hours. Following the hearing, I inspected the land and the neighbourhood at large.

1. The land is located on north side of Richardson Road. Mr Finanzio's submissions describe the land and the locality as follows:

The land is located on the north side of Richardson Road. Richardson Road runs in a loop from Yarra Road around Burt's Hill which forms part of the Wicklow Ridgeline.

Richardson Road is located in a relatively isolated and hilly section of Croydon North between three major roads: the Maroondah Highway, Plymouth Road and Yarra Road.

The surrounding area comprises residential dwellings on a variety of lot sizes. The land to the north contains single and double storey dwellings in Tadji Close and Biak Place. The land to the east is 68 Richardson Road and 66 Richardson Road that forms a battleaxe lot behind No. 68. The north east corner of 68 Richardson Road adjoins the Tadji Close Reserve.

To the west the land adjoins 19 San Martin Drive, the Municipal Reserve that connects San Martin Drive with Piedmont Court and the dwellings at 16, 18 and 19.

The land itself is rectangular in shape, except for the frontage to Richardson Road where the land comes to a point. The land has a frontage to Richardson Road of 40.75 metres, a width of 66.50 metres and a depth along the eastern boundary of 230.31 metres and a total area of 1.527 hectares.

A 2.44 metres wide drainage and sewerage easement transects the land and then runs along the western boundary. A restrictive covenant also burdens the land which prevents the construction of any dwelling that has an area of less than 11 squares exclusive of outbuildings.

The land contains a single storey dwelling close to Richardson Road.

The land is located near the top of a ridge line known as Wicklow Ridgeline.

A gully formation crosses the land in an east west direction near the point at which San Martin Drive terminates. Consequently the land slopes down from Richardson Road toward the gully, and then up from bottom of the gully toward the northern boundary. The gradient of the slopes across the land are substantial.

The land is thick with vegetation and supports a mixture of indigenous and exotic species.

1. The land is zoned Residential 1 under the Manningham Planning Scheme. Clause 32.01 sets out the purposes of the zone. Clause 32.01-4 requires a permit to subdivide land and that the subdivision must meet the requirements of clause 56 and sets out decision guidelines.
2. A permit is required to remove native vegetation on a lot greater than 0.4ha under clause 52.17 (Native Vegetation).
3. The land is also covered by Vegetation Protection Overlay Schedule 1 (VPO1) (Sites of Biological Significance) in clause 42.02. Clause 42.02-2 of the schedule requires a permit to remove native vegetation. Clause 42.02 sets out the overlay's purposes and the schedule describes its significance.
4. The land is also covered by Significant Landscape Overlay Schedule 3 (SLO3) (Ridgeline Protection Area - Inside Urban Growth Boundary) in clause 42.03. It requires a permit is required to construct a building or carry out works and to remove native vegetation. Clause 42.03 sets out the overlay's purposes and the schedule describes its significance.
5. Design and Development Overlay Schedule 1 (DDO1) (Ridgeline Protection Area) applies. Pursuant to clause 43.02-1 a permit is required to subdivide land. Its application was not in issue in this matter.

1. I have considered the submissions of the parties, the material produced at the hearing and on VCAT's file and my inspection of the site.

1. Condition 1(e) requires the amended plans submitted for endorsement be modified to show:

(e) Note the proposed reserve as a "Net Gain Reserve".

1. Condition 10 states:
   1. The applicant or owner must pay to the council a sum equivalent to 5% of the site value of all land. This payment shall be made prior to the issue of a Statement of Compliance and may be adjusted in accordance with Section 19 of the subdivision Act.
2. The applicant argued that the public open space reserve has been located to include an area of biological significance. It has been identified as an area providing an important habitat link and as a site for a Future Path/Trail in the City of Maroondah's Open Space Strategy: Making the Best of Open Space. The area of the Reserve (2,356m²) is in excess of 15% of the site area which is 3 times the area required under Clause 52.01 of Maroondah Planning Scheme and was a sufficient and adequate contribution in specie of public open space and had been contemplated as a site for a link pathway in council documents.
3. Mr Merrigan said that in the permit application the applicant proposed this area as the contribution to public open space that the issue had not been discussed in the process and the first notice of a cash contribution requirement was in the Notice of Decision.
4. The contribution is required under clause 52.01 of the planning scheme the relevant parts of which read:

52.01 PUBLIC OPEN SPACE CONTRIBUTION AND SUBDIVISION

A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

A public open space contribution may be made only once for any of the land to be subdivided.

1. Section 18 Subdivision Act 1988 does not apply as the requirement for the contribution is specified in the planning scheme and the amount is fixed at 5% in the schedule to clause 52.01. Accordingly, there can be no review of the contribution under Section 18.
2. Clause 52.01 provides for some exemptions, mainly for subdivisions for buildings, which do not apply in this case. There is no suggestion that this is not the first contribution required for this land.
3. Mr Merrigan's argument is that as almost 3 times 5% of the area of the land is being required for net gain purposes, is it unfair and unreasonable for council to require a 5% cash contribution in addition, given also the applicant is been required to pay for the revegetation and maintenance of the reserve for 10 years.
4. A number of issues arose out of Mr Finanzio's response:
   • Condition 10 is merely notice of a requirement that arises independently of the permit under clause 52.01 and council can chose to make the requirement in a number of ways and it has chosen the condition in this case.
   • Whether council's choice of cash, land or both is reviewable by this tribunal, and
   • Whether the choice can be attacked as invalid as so unreasonable that no reasonable council could have made the decision, and
   • If reviewable, whether the cash contribution is fairly and reasonably imposed as a condition of the permit.
5. Mr Finanzio advised some of these issues are before the Courts in other matters.
6. I agree with Mr Finanzio's submissions that clause 52.01 does not specify that the requirement for a contribution must be made by a condition in the permit. As commented by the tribunal in Tucker v Mornington Peninsula SC No 3[2] it has been common for councils to make the requirement by means of such a condition, but the clause does not specify that this is the means to be adopted, and the requirement is sometimes made by other means such as a letter.
7. Mr Finanzio's case is that:
   • it is the council's choice to determine whether the contribution be in cash in land or by a contribution, and
   • this decision is not reviewable by the Tribunal and is not a matter on which the Tribunal can substitute its own view without being satisfied that the councils' view is so unreasonable that no reasonable council could have made the decision according to the Wednesbury case principles.
8. He stated the council rejects the offer of the net gain area as the public open space contribution and that this area is unsuitable for public open space purposes.
9. The question of how the council decides whether to accept land or require cash in lieu is discussed in Trethowan v Mornington Peninsula SC[3] where the senior member commented that the purpose of the requirement is to make provision for the need for public open space created by the subdivision and that policy can be substantially defeated if the subdivider can insist on giving cash in lieu of what is really needed, i.e. land, and that conversely an opposite situation may arise:
   1. Conversely an opposite situation may arise. There may be a subdivision in an area where there is ample public open space provided, but what is needed is some cash to develop it and make it useable for that purpose. Money might be needed to clear black berries, remove hazards, install toilets, erect play equipment, changing rooms, sporting facilities, park benches, trees, gardens and the like. There certainly can be situations where it is money to develop the open space, rather than land itself, that is needed. In this situation it may not at all meet the need created, if the subdivider can insist on contributing land rather than cash.
10. But that decision does not determine the issue whether the council's choice of the mode of contribution is subject to review by this Tribunal. In Trethowan at [37] the senior member contemplated that it is reviewable as a condition but decided that the condition in that case was acceptable:
11. Also, removal of the condition does not resolve the matter. In Tucker[4] at [28] the senior member said:
    1. The applicant in this case seeks the deletion of condition 6. Condition 6 purports to impose a public open space contribution requirement. The applicant wants it deleted, presumably on the basis that it is thought this would remove the requirement. I do not think that removal of condition 6 would have the legal result of removing the public open space requirement. On the contrary, cl.52.01 would still apply.
    2. In this case the responsible authority has exercised the discretion it does have under cl.52.01 to require cash rather than land or a combination of land and cash.
    3. The result is that, unless the exemption applies, there is a liability to pay 5% "of the site value of such land" as a contribution for public open space
12. There is no provision in the Planning and Environment Act 1987 for review of a such a decision operating independently of the permit under the review provisions in sections 77, 79, 80 or 82. It is not of the nature of a secondary or other approval or consent that might be reviewable under section 149(1), although there might be a possibility of an application for a declaration as to the validity of the decision under sections 149A or 149B, but no such application has been made in this case.
13. Thus my conclusion is that the decision of the council to choose the nature of the public open space contribution is not subject to review by this tribunal, except on the basis that the decision that is so unreasonable that no reasonable council could have made the decision according to the Wednesbury case principles.
14. Mr Merrigan did not present any argument on these issues, but there were submissions as to the reasonableness of the council's decision. I find that the decision to elect for a cash contribution by the council is fair and reasonable in this care and that even if a review was available the condition to require a cash public open space requirement should be upheld.
15. A net gain area, which is normally revegetated and fenced off to maintain and encourage the retention of native vegetation, would generally be unsuitable and inconsistent with the needs of the council for public open space. It would not be accessible by members of the public, nor for children's play, picnics, walking the dog, kicking the football or the usual activities for these areas
16. It is also clear that whilst a pathway link through this land was once proposed, it is not now part of council's public open space policy. If, notwithstanding, a pathway is provided, it would only require a fraction of the 2356m² area.
17. I am also satisfied that the city has ample public open space and that its needs may be more for development and enhancement of those spaces rather than the provision of more land.
18. The applicant has not contested the conditions for the provision of a net gain area, but in the context of this discussion it is necessary to say that the purposes and objectives of those provisions are distinct from those of clause 52.01 and
19. Accordingly, my decision is that Conditions 1(e) and 10 remain in the permit.

1. The relevant parts of conditions 3 and 5 state:
   1. Prior to the commencement of any works and removal of any vegetation on the site a Vegetation Protection/Rehabilitation and Revegetation Program (management) must be prepared and submitted to the responsible authority for endorsement. The program must include:
      • (a) Identification of appropriate areas for:
        1. Protection and rehabilitation for existing native vegetation within the new reserve.
        2. Protection and rehabilitation for existing native vegetation within lots 2, 3 and 4.
        3. Revegetation.

1. Prior to the issue of a Statement of Compliance all works as contained within the Vegetation Protection/Rehabilitation and Revegetation Program must be completed to the satisfaction of the Responsible Authority.
2. Mr Merrigan submitted that it is accepted that a condition of the subdivision be that the developer is responsible for revegetation of the proposed reserve in accordance with a landscape plan to the satisfaction of the responsible authority. The landscape plan should include measures for the management of existing vegetation and revegetation to achieve a Net Gain in accordance with the Net Gain Assessment by Indigenous Design Land Management (February 2007). The Croydon Conservation Society has agreed to assist with the maintenance of the Reserve in conjunction with council.
3. But he argued that there is no need for lots 2, 3 and 4 to prepare a management plan. The proposed reserve can achieve a net gain; the use of private lots was discouraged as a means of achieving net gains in Villawood Properties v Greater Bendigo CC[5]. The land is covered by a Design Development Overlay, Significant Landscape Overlay and Vegetation Protection Overlay. These controls together with the building envelopes provide adequate protection for existing vegetation.
4. However, I agree with Mr Finanzio's submissions that the conditions in relation to lots 2, 3 and 4 should be maintained. This is an area of ecological importance and re-vegetation of protection measures for lots 2, 3 and 4 supports the important provision for the net gain reserve.
5. It is noted that rather than requiring those offsets to be provided on other land, council has agreed the offsets be provided on the essentially un-developable part of the land, in part because of the willingness of the Croydon Conservation Society to assist in the management of the area.
6. Whilst the existing planning controls and the proposed building envelopes will provide some protection for the lots those controls underscore the importance of the environmental and biological issues to allow the subdivision. I agree with Mr Finanzio that this subdivision is not an endorsement of a suburban landscape, but the area is special and the condition is seeking to give that objective effect.
7. The condition in relation to lots 2, 3 and 4 and condition 3 requires no more than a management plan for the protection and rehabilitation of existing native vegetation on the land. This is in addition to the protection against the removal of some existing trees imposed by the planning controls.

1. Conditions 1(a) requires the amended plans submitted for endorsement be modified to show:

(a) A reduction in the building envelope within Lot 3 to provide a minimum setback of 8.0 metres from the eastern boundary and 15 metres from the southern boundary.

1. Condition 6 reads:
   1. Prior to the issue of a Statement of Compliance, the Owner of the land must enter into, and register on title, an agreement with the Responsible authority under Section 173 of the Planning and Environment Act 1987, which provides that:

(a) The development of a dwelling within Lots 2, 3, and 4 together with all outbuildings and associated works shall be contained within the building envelope within each lot as approved under the endorsed plans.

(b) The owner of each lot must at all times comply with the Vegetation Protection/Rehabilitation and Revegetation Program as approved under condition 3.

(c) The cost of the preparation or review of the agreement and its registration on the title to the land must be borne by the Owner of the land.

1. Mr Merrigan submitted that it is not accepted that the building envelopes, that have been located to minimise the impacts on existing vegetation and abutting neighbours, need to be further amended. The building envelopes were amended through the planning process to the satisfaction of neighbours. The provision of building envelopes is better undertaken as a restriction on the plan of subdivision rather than via an agreement under section 173 of the Planning and Environment Act 1987.
2. The first point of Mr Merrigan's argument is that he wished to deletion of the requirement for a Section 173 Agreement, which he considered was unnecessary as imposing undue expense on the subdivider.
3. He submitted that a restriction on the Plan of Subdivision is a better mechanism for implementing building envelope requirements.
4. However, I agree with Mr Finanzio that whilst Mr Merrigan is correct in so far as he goes, a Section 173 Agreement is necessary to impose the obligations for compliance with the vegetation protection rehabilitation of re-vegetation programs as well as compliance with the building envelope requirements on subsequent owners, and that these subsequent owners will be notified of this by these obligations being registered on the title to the land. Accordingly, I disagree that the provision for a Section 173 Agreement should be deleted.
5. The next issue relates to the question of whether the further setbacks for lot 3 should be increased. There was considerable confusion around this issue and Mrs Burdett, the owner of the adjoining property to the east made submissions.
6. The amended plan (Proposed Lot Layout-Version 2: 13/08/2007) proposes a setback of 6 metres from both the eastern and southern boundaries.
7. Ms Burdett, the owner of the adjoining property to the east at 66 Richardson Road, raised objections to the 6 metre setback, and was also concerned about the alignment of the northern boundary of the building envelope on the basis that they would be able to see it from their house.
8. I was advised that the distance of the closest point of Ms Burdett's house was 12 metres from the common boundary and thus the 6 metre setback would provide an intervening space of 18 metres.
9. On an inspection of the land, I noted that Ms Burdett's house did not face towards the subject land. The side and rear aspects of her house presented obliquely to the common boundary. The side contains an upper and lower level side full-length double windows and a rear utility room window. The rear of the house is screened for utility purposes. Whilst there was a trampoline in the intervening space between house and the boundary, the intervening area was not of the nature of secluded private open space used for continual recreation. Rather, the front of the house was orientated away from the subject land to the north-east, with an upper balcony and lower terraces looking across a pool and deck, enjoying substantial views of the valley beyond, open aspect and sunlight.
10. There is an existing house to the south on Lot 1, approximately 50 metres south of the common boundary.
11. There was a suggestion at the hearing that the southern setback should be increased to 15 metres to provide more open space at the southern end of the property, but this appears inconsistent with Ms Burdett's approach and subsequent correspondence received from her.
12. Council has required the condition to increase the setbacks because prevailing setbacks are much greater on each of the adjoining boundaries and that the condition gives effect to an appropriate response to the context of this lot.
13. I find that council and Mrs Burdett have not established a case for increasing the setbacks on the eastern and southern boundaries.
14. As mentioned above, there will already be a 18 metre separation between Ms Burdett's house and the building envelope, and the aspects of Ms Burdett's house facing the common boundary do not require special consideration as a consequence of the visibility of a building on the adjoining property, and there is already ample separation. A house within the building envelope on Lot 3 will be scarcely visible from the north-east facing main recreation areas and views of Mrs Burdett's house. The land slopes away from Ms Burdett's house to the site and there will be no overlooking or overshadowing that requires protection. The Burdett house is situated on a large block with substantial setbacks to each boundary. Given the steep slope of the land from the south to the north, and also the distance from the existing house on lot 1, it seems appropriate to site the building envelope as far as practicable up the hill. One must also assume standard boundary paling fences may be constructed.
15. Needless to say, not all the building envelope may be in fact built upon and part may be decking or areas available for recreation.

1. Conditions 1(b), (c), (d), and (f) require the amended plans submitted for endorsement be modified to show:

(b) Clear identification and highlighting of all trees to be removed and the extent of other native vegetation to be removed for the construction of the driveways and installation of services to lots 2, 3 and 4.

(c) The alignment of all trenching for installation and construction of services including electricity, telecommunications, water, sewerage, drainage and gas.

(d) The location and extent of excavation, fill, batters and any retaining walls to be used in the construction of the driveways.

(f) Definition of a "Construction Zone" within lots 2, 3 and 4 where all works, machinery, spoil materials and vehicles shall be contained within at all times during the construction of driveways and installation of services to the lots.

1. Condition 8 reads:
   1. Prior to the issue of a Statement of Compliance for the subdivision driveways within lots 2, 3 and 4 as shown on the endorsed plans must be constructed to the satisfaction of the Responsible Authority.
2. Mr Merrigan submitted that amended plans are not required but it is accepted that a permit condition for engineering design plans include a requirement for provisions contained in conditions 1(b), (c), (d) and (f). His client only wished to construct the first 20 metres of the driveways to avoid expense at this stage and as subsequent owners may wish to relocate the driveways.
3. After discussion he accepted the proposition that if his client was only required to construct the first 20 metres, the obligations under conditions 1(b), (c), (d) and (f) and 8, could be implemented by incorporating these in the Section 173 Agreement.
4. I agree with Mr Finanzio that Mr Merrigan's argument is not a justification for removing the requirements, but underscores the need for them and that if they are not to be carried out by the applicant it is important that whoever is left to do so is clearly guided by the endorsed plans, particularly where there are some 7 trees approximate to the southern extent of the driveways for lots 2 and 3.
5. I find that the developer should not be required to construct any more than the first 20 metres of the driveways, but the obligations containing these conditions should be imposed on subsequent purchasers through the Section 173 Agreements when the complete driveways or other works are ultimately constructed.
6. I will amend the conditions accordingly.

1. Condition 1(g) requires the amended plans submitted for endorsement must be modified to show:

(g) Include the Tree Protection Zone for all trees to be retained on the land in accordance with an assessment by a suitably qualified and experienced arborist.

1. Mr Merrigan's grounds were that the single tree proposed to be removed has since fallen over. No other trees other than weed species will be impacted by the subdivision works.
2. It was not possible at the hearing to identify what trees might be involved, but I accept Mr Finanzio's argument that if Mr Merrigan is correct the condition has been met, but that if other relevant trees are identifies an arborist's assessment is necessary,
3. The condition will remain.

1. Condition 16 reads:
   1. A copy of this permit shall be provided to any prospective purchaser of the land during the validity of the permit
2. Council did not contest the deletion of this condition as on any sale of land the vendor must provide a vendor's statement which must have attached a copy of the permit and the section 173 Agreement.

[1] Application for review under section 80 Planning and Environment Act 1987 against conditions in a permit

[2] [2006] VCAT 1780 (22 August 2006) at [14]. See also Hand v Warrnambool CC [2004] VCATv19 At

[3] [2002] VCAT 1377 (26 November 2002) at [31 - 32]

[5] [2005] VCAT 2703 (20 December 2005)